SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) August 29, 1997
AIR TRANSPORTATION HOLDING COMPANY, INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 0-11720 52-1206400
(State or Other Jurisdiction (Commission File Number) (I.R.S. Employer
of Incorporation) Identification No.)
3524 Airport Road
Maiden, North Carolina 28650
(Address of Principal Executive Offices)
(Zip Code)
(704) 377-2109
(Registrant's Telephone Number, Including Area Code)
Not Applicable
(Former name or address, if changed from last report)
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Item 2. Acquisition or Disposition of Assets.
On August 29, 1997, Air Transportation Holding Company, Inc.
(the "Company") acquired certain assets, and assumed certain
liabilities, of the Simon De-icer Division of Terex Aviation
Ground Equipment, Inc. ("Terex"). This transaction was effected
pursuant to a Purchase and Sale Agreement dated August 19, 1997
between Terex and the Company (the "Agreement"). In the
transaction, the Company paid $987,655, net, in cash (subject to
adjustment to reflect the value of inventory at closing), of
which $737,655 was placed in escrow. The Company used its
working capital to fund the acquisition.
The assets acquired from Terex were used in manufacturing
aircraft de-icing equipment at Terex's facility in Olathe,
Kansas. The Company intends to continue to operate the acquired
business in Olathe, Kansas.
The description of the terms of the acquisition set forth
above is qualified in all respects by reference to the Agreement,
a copy of which is filed herewith as an exhibit.
Item 7. Financial Statements and Exhibits.
(a) Financial Statements
Financial statements are not required.
(b) Pro Forma Financial Information
Pro forma financial information is not required.
(c) Exhibits
Exhibit 2.1 -- Purchase and
Sale Agreement dated August 19, 1997
between Air Transportation Holding
Company, Inc. and Terex Aviation Ground
Equipment, Inc.
The Company agrees to furnish supplementally to the
Commission upon request any schedule or exhibit to Exhibit 2.1,
which have been omitted.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the Registrant has duly caused this report to be signed
on its behalf by the undersigned hereunto duly authorized.
Date: September 5, 1997
AIR TRANSPORTATION HOLDING COMPANY,INC.
By: /s/ J. Hugh Bingham
J. Hugh Bingham
President
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EXHIBIT INDEX
Exhibit No. Exhibit
Exhibit 2.1 Purchase and Sale Agreement dated August 19, 1997
between Air Transportation Holding Company, Inc. and
Terex Aviation Ground Equipment, Inc.
<PAGE>
EXHIBIT 2.1
PURCHASE AND SALE
AGREEMENT
dated as of August 19, 1997
TEREX AVIATION GROUND EQUIPMENT, INC., a Delaware corporation
with its principal office and place of business located at 550
East 56 Highway, Olathe, Kansas
as Seller
AIR TRANSPORTATION HOLDING COMPANY, INC., a Delaware corporation
with its principal office and place of business located in
Denver, North Carolina
as Buyer
<PAGE>
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement (the "Agreement") is
entered into as of the 19th day of August, 1997, by and between
AIR TRANSPORTATION HOLDING COMPANY, INC. ("Buyer"), a Delaware
corporation with its principal office and place of business
located in Denver, North Carolina; and TEREX AVIATION GROUND
EQUIPMENT, INC. ("Seller"), a Delaware corporation with its
principal office and place of business located in Olathe, Kansas.
BACKGROUND STATEMENT
Seller manufactures and sells aircraft deicers (the
"Business") in Olathe, Kansas. Seller desires to sell to Buyer
certain inventory and other assets relating to the Business, and
Buyer will assume certain warranty obligations and open purchase
orders.
This instrument embodies the parties agreements on this and
various other matters.
NOW, THEREFORE, in consideration of the mutual duties and
obligations set forth herein, and intending to be legally bound,
the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND DESCRIPTION OF ASSETS
PURCHASED
1.1 Definitions. The following terms shall have the
indicated meanings unless the context otherwise requires:
Accounts Receivable shall mean all rights to payment due to
Seller for Inventory sold, services rendered and service charges
assessed by the Business prior to the Closing Date. A listing of
the Accounts Receivable covered by Section 2.3 shall be attached
to this Agreement on the Closing as Exhibit 2.3.
Affiliate shall mean, with respect to any Person, each of
the Persons that directly or indirectly, through one or more
intermediaries, owns or controls, or is controlled by or
under common control with, such Person. For the purpose of this
Agreement, "control" means the possession, directly or
indirectly, of the power to direct or cause the direction of
management and policies, whether through the ownership of voting
securities, by contract or otherwise.
Average Landed Cost shall mean the individual item cost as
invoiced to Seller for use in the Business at time of delivery,
including pro rated in-bound freight, and "net" of any discounts
shown on the face of the invoice. The net total value of the
invoiced item shall be added to the net total value of the
existing inventory, and divided by the combined unit quantity of
both with the result being the new "Average Landed Cost."
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Buyer shall mean Air Transportation Holding Company, Inc., a
Delaware corporation with its principal office and place of
business located in Denver, North Carolina.
Closing shall mean the closing of the purchase and sale of
the Purchased Assets which shall occur on the Closing Date as
provided in Section 4.1.
Closing Date shall mean on or before August 29, 1997.
Deposits shall mean all cash placed on account by a customer
of Seller which has been collected by Seller and for which the
service or product has not yet been delivered.
Environmental Laws shall mean all applicable federal, state
and local laws, regulations, orders, decrees, and permits
relating to pollution or the protection of the environment.
ERISA shall mean the Employee Retirement Income Security Act
of 1974.
Escrow Account shall mean the account maintained by the
Escrow Agent pursuant to Article 11 hereof which account shall be
maintained in a financial institution in the state of North
Carolina.
Escrow Agent shall mean Robinson, Bradshaw & Hinson, P.A.
Excluded Inventory shall mean all damaged, obsolete, special
orders not sold or returnable or nonstock items as identified by
Buyer.
Fixed Assets shall mean all sales and delivery vehicles,
machinery, equipment, furniture, fixtures, tools, office
equipment and supplies that are in stock, owned by Seller and
currently in use at the Business, a listing of which is attached
hereto as Exhibit 1.2(e).
Hazardous Substances shall mean any substance or material
(a) which is a "hazardous waste" as defined by the Resource
Conservation and Recovery Act of 1976, as amended from time to
time, and regulations promulgated thereunder or in any applicable
state or local law or regulation; (b) which is a "hazardous
substance" as defined by CERCLA, as amended from time to time,
and regulations promulgated thereunder or in any applicable state
or local law or regulation; (c) which is a "toxic substance," as
defined in the Toxic Substances Control Act of 1976, as amended
from time to time, and regulations promulgated thereunder or in
any applicable state or local law or regulation; (d)
insecticides, fungicides, or rodenticides, as defined in the
Federal Insecticide, Fungicide, and Rodenticide Act of 1975, as
amended from time to time, and regulations promulgated thereunder
or in any applicable state or local law or regulation; (e) which
is or contains asbestos; (f) which contains polychlorinated
biphenyls (PCBs) or radon; (g) which is an underground storage
tank, whether empty, filled or partially filled with any
substance; (h) any petroleum-based products, including without
limitation, gasoline, diesel fuel or other petroleum
hydrocarbons; (i) which is toxic, explosive, corrosive,
flammable, infectious, radioactive, carcinogenic, mutagenic, or
otherwise hazardous and is or becomes regulated by any
governmental authority or governmental regulation; and (j) any
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other substance which by an Environmental Law requires special
handling or notification of any federal, state or local
governmental entity in its collection, storage, treatment, or
disposal.
Intellectual Property Assets shall mean (i) all fictional
business names, including, without, limitation, all of Seller's
rights to the name "Simon Deicer", trading names, registered and
unregistered trademarks, service marks, and applications used or
useful in the Business; (ii) all patents, patent applications,
and inventions and discoveries that may be patentable; (iii) all
copyrights, tradename, and service marks used or useful in the
Business; (iii) plans, drawings, specifications, specification
sheets, processes, customer lists, and other similar written
information and materials which are employed by Seller in the
Business, and (iv) all know-how, trade secrets, confidential
information, customer lists, software, technical information,
computer programs, computer disks, data, process technology,
plans, drawings, and blue prints; owned, used, or licensed by the
Business as licensee or licensor.
Inventory shall mean all raw materials, parts, work in
process, finished goods and manufacturing, administrative and
other supplies owned by Seller which either are held by Seller
for sale in the Business or have been furnished to any
subcontractor or other bailee in connection with the Business.
All Inventory must be fit for the purpose for which it was
provided or manufactured and is not slow-moving, obsolete,
damaged, or defective. Inventory does not include Excluded
Inventory.
Person means an individual, partnership, corporation,
limited liability company, trust, decedent's estate, joint
venture, joint stock company, association, unincorporated
organization, Governmental Authority or other entity.
Purchased Assets shall mean all of the assets purchased by
Buyer pursuant to this Agreement.
Purchase Contracts shall mean all contracts for materials
and equipment ordered by Seller in the ordinary course of the
Business and not yet delivered or invoiced as of the Closing
Date.
Purchase Price shall mean the price paid by Buyer to Seller
pursuant to this Agreement.
Seller shall mean Terex Aviation Ground Equipment, Inc., a
Delaware corporation with its principal office and place of
business located in Westport, Connecticut.
1.2 Purchase and Sale of Assets. Seller will sell and
Buyer will purchase all of the following:
(d) Inventory. Inventory existing as of the Closing Date.
(e) Intellectual Property Assets. All Intellectual
Property Asset which Seller can assign, transfer or disclose
without incurring a liability or an obligation to any third
party. Seller shall have the right to make and retain one (1)
copy of each document involved.
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(f) Rights Against Suppliers. Seller's rights, if any,
against suppliers for defects or failures of performance in the
furnishing of any materials incorporated in, or utilized in the
production or distribution of, any products which are being sold
to Buyer under this Agreement.
(g) Uncompleted Orders. The rights and interests of Seller
under uncompleted sales orders and other agreements originating
from the Business. Seller's uncompleted orders as of July 31,
1997 is attached hereto as Exhibit 1.2(d)(i). The most recent
list of the Business's price quotes to customers is attached
hereto as Exhibit 1.2(d)(ii).
(h) Fixed Assets. The Fixed Assets listed on Exhibit
1.2(e) attached hereto.
(i) Purchase Contracts. The Purchase Contracts existing as
of the Closing Date.
(j) Prepaids. All prepaid assets relating to the Business
which Seller can transfer to Buyer, all of which are described on
Exhibit 1.2(g) which will be attached hereto on the Closing Date.
1.3 Purchased Assets Free and Clear. All of the Purchased
Assets shall be transferred to Buyer by Seller free and clear of
all liens, claims, and encumbrances, including without limitation
the liens of ad valorem personal property taxes accrued or owed
prior to the Closing Date, unless adjusted with Buyer.
ARTICLE 2
CONSIDERATION FOR TRANSFER
2.1 Purchase Price. The price to be paid by Buyer to
Seller pursuant to this Agreement shall be determined as of the
Closing Date as follows:
(a) Inventory.
(i) Beginning on the Closing Date, and continuing
thereafter until completed, Buyer shall perform a physical
counting of the Inventory in the Business (the "Post-Closing
Inventory"). Seller shall have the right to participate and to
have its employees or agents observe and participate in the
taking of the physical inventory and to inspect the work papers
prepared in connection therewith. Buyer shall use its best
efforts to complete the Post-Closing Inventory no later than
fifteen (15) business days following the Closing. The purchase
price for the Inventory shall be determined by Buyer in
accordance with the Average Landed Cost, increased by Seller's
actual labor costs (excluding any unrelated or corporate overhead
factor) for work-in-process.
(ii) During the Post-Closing inventory described above,
Buyer shall identify all Excluded Inventory. The parties will
negotiate in good faith on a purchase price for the Excluded
Inventory at the Business. If the parties cannot determine a
purchase price for the Excluded Inventory, it shall be removed by
Seller from the Seller's place of business in Chicago, Illinois,
<PAGE>
within five (5) business days after the Closing Date and Buyer
shall not remove those items from Seller's place of business in
Olathe, Kansas.
(b) Prepaids. Buyer shall pay an amount equal to the
Prepaids existing as of the Closing Date.
(c) Fixed Assets, Plans, etc.. The purchase price for the
Fixed Assets, Intellectual Property Assets, and all other assets
covered by this Agreement and not specifically listed herein
shall be $250,000.
2.2 Payment of Purchase Price; Escrow.
(a) Payment to Seller. At Closing, Buyer shall pay $250,000
to Seller by wire transfer. In addition, at the Closing, Buyer
shall estimate the purchase price for the Inventory using the
formulas set forth in this Agreement. Buyer shall pay the amount
so estimated, less the Deposits retained by Seller, to the Escrow
Agent to be deposited in the Escrow Account.
(b) Delivery from Escrow by Escrow Agent. Upon completion
of the determination of the purchase price for the Inventory,
(which determination be completed no later than 20 business days
following the Closing Date) the Escrow Agent shall deliver to
Seller so much of the amount in the Escrow Account necessary to
complete the payment for the Inventory. Any funds remaining in
the Escrow Account shall be returned to Buyer. Should the amount
in the Escrow Account be insufficient to pay the balance of the
purchase price for the Inventory, then Buyer shall immediately
pay the shortfall to Seller.
2.3 Collection of Accounts Receivable. Buyer will use all
commercially reasonable efforts during a one hundred twenty day
period following the Closing to collect Seller's Accounts
Receivable as of the Closing Date, but will not be required to
exercise extraordinary efforts to collect such Accounts
Receivable, including without limitation, the institution of
litigation or the referral of such Accounts Receivable to an
attorney or collection agency for collection. Buyer shall not
settle or adjust the amount of any such Account Receivable with a
face amount in excess of $5,000 without the written consent of
Seller. If Buyer receives money form an account debtor of Buyer
that is also an account debtor of Seller with respect to any of
such Accounts Receivable of Seller subject hereto, Buyer shall
credit the sums received to the oldest account due, unless there
is a good faith dispute with respect to either account and the
account debtor specifically identifies the invoice being paid, in
which case any payment by such account debtor shall be applied in
accordance with any remittance advice or instructions from the
account debtor; provided that to the extent any amount in excess
of the amount of such invoice is received by Buyer, Buyer shall
credit such amounts received to the oldest account due. All
amounts collected by Buyer pursuant to this paragraph, less a one
percent (1%) collection fee, shall be sent to Seller at the
address set forth in Section 13.7 hereof immediately following
collection. At the conclusion of the 120 day period referred to
herein, Buyer shall transfer to Seller any documentation relating
to any Accounts Receivable of the Business subject hereto, which
shall in all events continue to be owned by Seller, and not
collected during such 120 day period.
<PAGE>
2.4 Assumption of Purchase Contracts. Buyer shall assume
all liabilities of Seller for the Purchase Contracts.
ARTICLE 3
LIABILITIES AND OBLIGATIONS
3.1 Liabilities and Obligations Assumed. Effective as of
the Closing Date, Buyer shall assume the following liabilities
and obligations of Seller:
(a) Sales Orders. The obligations under the
uncompleted sales orders listed on Exhibit 3.1(a) attached hereto
and made a part hereof.
(b) Warranty Work. The obligations to perform
standard warranty work on the deicer units listed on Exhibit
3.1(b) attached hereto and made a part hereof, along with the
obligation to perform Seller's obligations under the "Simon
Deicer Extended Warranty Agreement" with American Airlines.
(c) Purchase Orders. The obligations under the
uncompleted purchase orders listed on Exhibit 3.1(c) attached
hereto and made a part hereof.
(d) Purchase Contracts. The obligations under the
Purchase Contracts.
(e) Employees. Buyer shall be responsible for all
obligations to Seller's employees hired by Seller arising on or
after the Closing Date.
3.2 Liabilities Not Assumed. Except as specifically set
forth in Section 3.1(a) nothing in this Agreement shall in any
way obligate Buyer for any liabilities or obligations of Seller,
whether known or unknown, disputed undisputed, contingent or non-
contingent, liquidated or unliquidated, or otherwise, including,
but not limited to, any liabilities or obligations described in
this Agreement or the Schedules attached hereto or liabilities or
obligations resulting from or arising out of (i) the violation of
any state, federal or local Environmental Laws, and the actual,
alleged or threatened discharge, dispersal, seepage, migration,
release or escape of materials, pollutants, heat, smoke, fire,
odors, gas or fumes in excess of amounts permitted under
applicable Environmental Laws into the environment prior to the
Closing Date, (ii) violation of antitrust, monopoly or trade
regulation laws as of the Closing Date, (iii) violations of labor
employment laws or regulations as of the Closing Date, (iv)
failure of Seller to pay any taxes, levies, charges or
obligations asserted or levied by any state, federal or local
governmental entity or authority as of the Closing Date, (v)
violations of, failure to comply with or any obligation arising
under any laws or regulations relating to any welfare,
retirement, vacation or other benefit plan or any plan covered by
the Employee Retirement Income Security Act of 1974 as amended or
the failure to comply with the continuation coverage requirements
of Title X of the Consolidated Omnibus Budget Reconciliation Act
of 1985 as amended ("COBRA") as of the Closing Date, (vi) any
pending or threatened lawsuit, claim or other action against
Seller, whether for personal injury, wrongful death or property
damage, or whether arising out of employment or a contractual or
<PAGE>
alleged contractual right, the basis of which lawsuit existed as
of the Closing Date (vii) any liabilities, including without
limitation product liability, arising out of or related to the
possession, use or operation of the Purchased Assets by Seller
prior to the Closing Date or arising exclusively from the
manufacture of the Simon Deicer by Seller or any of Seller's
predecessors or (viii) any liability to any vendor or other
supplier to Seller for any item of the Inventory which is being
sold to Buyer pursuant to this Agreement.
3.3 Customer Deposits. On the Closing Date, Seller shall
update the Deposits then held by it on Exhibit 3.1(a)(i) which
exhibit must be acceptable to Buyer. The total amount listed on
Exhibit 3.1(a)(i) shall be an offset against the amount payable
by Buyer to the Escrow Agent pursuant to Section 2.2(a) hereof.
As of the Closing Date, Seller shall retain the Deposits relating
to the contracts and purchase orders listed on Exhibit 3.1(a)(i).
3.4 Employees. On the Closing Date, Buyer agrees to hire
William Dempsey, Rick Smith, John E. Newsom, Sr., Charles
Preston, Dale Kendrick, Joe Wujek, Brett Sipla, Ron Bell and
Terry D. Williams, all of whom are employees of Seller (the
"Employees") at salaries and benefits substantially comparable to
their current levels. As of the Closing Date, Seller shall
discontinue coverage of the Employees under its benefit plans and
all salary payments.
ARTICLE 4
CLOSING
4.1 Closing. Closing shall take place on the Closing Date
at 10:00 a.m., local time at the offices of Robinson, Bradshaw &
Hinson, P.A., 101 North Tryon Street, Suite 1900, Charlotte,
North Carolina 28246, or at such other place or time as Buyer
and Seller mutually agree in writing.
ARTICLE 5
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER
5.1 Representations, Warranties and Covenants Relating to
Seller. Seller represents, warrants and covenants that:
(a) Organization, Good Standing, Power, Etc. Seller is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and is duly qualified and
authorized to do business with the States of Kansas and Illinois.
Seller has all requisite power to own, lease and operate its
properties and to carry on its business as now being conducted.
(b) Authority. Seller has the authority to enter into this
Agreement, each representative who has executed this Agreement on
behalf of Seller has been duly authorized to do so. This
Agreement constitutes with respect to Seller a valid and legally
binding agreement enforceable against Seller in accordance with
its terms.
<PAGE>
(c) No Violation of Agreements, Etc. The execution,
delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby will not violate, with or
without the giving of notice or the lapse of time, or both, any
provision of law applicable to Seller. No consent, approval or
authorization of any governmental authority is required in
connection with the execution and delivery of this Agreement or
the transactions contemplated thereby.
(d) Tax Matters. Seller has prepared and filed with the
appropriate United States, state and local governmental agencies
all tax returns or extensions thereof required to be filed;
Seller has paid, on or prior to the due date thereof, all taxes
shown to be due on such tax returns and on all assessments
received by Seller to the extent that such assessments have
become due except where such taxes or assessments are being
contested in good faith by appropriate proceedings.
(e) Title to Properties; Absence of Liens and Encumbrances,
Etc. Except as set forth on Exhibit 5.1(e), Seller has good and
marketable title to all of the Purchased Assets. Seller has not
received notice of violation of any applicable law, ordinance,
regulation, order or requirement relating to its operations at
the Business, including without limitation its employees, or the
Purchased Assets, which is currently pending or outstanding.
(f) Lists of Properties, Contracts and Other Data. Seller
has delivered to Buyer a correct and complete list, attached
hereto as Exhibit 5.1(f), which by execution hereof, is certified
by an officer of Seller to be correct and complete, setting forth
the following:
(i) all policies of insurance, (all of which shall be
in effect through the Closing Date, but which shall be canceled
by Seller immediately following the Closing Date) whether
individual or group, in force with respect to the lives of the
employees of the Business and with respect to the properties,
buildings, machinery, equipment, furniture, fixtures and
operations of the Business, including liability insurance of
whatever kind or character;
(ii) all collective bargaining agreements, employment,
independent representative and consulting agreements, executive
compensation agreements and plans, bonus agreements and plans,
deferred compensation agreements, employee pension plans or
retirement plans, employee profit-sharing agreements and plans,
employee stock purchase and stock option agreements and plans,
hospitalization insurance, and other agreements and plans and
arrangements providing for employee benefits of the employees of
Seller at the Business;
(iii) the names and annual rates of compensation as of
July 31, 1997 of all employees of the Business;
(iv) all master customers lists of the Business;
(v) a complete listing of all Intellectual Property
Assets; and
(vi) all long term supply contracts.
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(g) Litigation, Etc. There is no outstanding judgment or
writ, injunction, decree or award against or otherwise affecting
Seller, nor is there any litigation, proceeding, arbitration, or
United States, state or local governmental investigation pending,
or so far as is known to Seller, threatened against or relating
to the Business or the Purchased Assets, or the transactions
contemplated by this Agreement which might, if adversely
determined, have any material adverse effect upon the business,
properties, operations, prospects, or assets, or upon the
condition, financial or otherwise, of Seller, nor is there any
basis known to Seller for any such action
(h) Compliance with Applicable Laws. The conduct of the
Business does not violate or infringe (i) any domestic or foreign
(federal or local) laws, statutes, ordinances or regulations, or
(ii) any right or concession, patent, trademark, trade name,
copyright, know-how or other proprietary rights of others, the
enforcement of which would materially and adversely affect the
businesses or operations of Seller or the value of its properties
or assets except to the extent that Seller's failure to comply
would neither have a material adverse effect on the value of any
Purchased Assets, nor be likely to subject the Seller or Buyer to
any criminal or material civil liability.
(i) General Information. None of the information and
documents furnished or to be furnished by Seller, or any
authorized representative of Seller pursuant to this Agreement,
including its or their attorneys and accountants, is or will be
false, incomplete or misleading in any material respect.
5.2 Representations and Warranties Relating To ERISA.
Except as set forth on Exhibit 5.2, Seller represents, warrants
and covenants that it does not have any benefit pension plan, or
any employee welfare plan, as those terms may be defined under
ERISA, applicable to the Employees of the Business.
5.3 Environmental Matters.
(a) Compliance. Except as set forth on Exhibit 5.3(a),
Seller (i) is in compliance in all material respects with all
applicable federal, state and local laws, regulations, orders,
decrees, and permits relating to pollution or protection of the
environment (the "Environmental Laws") relating to the Business
and the Purchased Assets, (ii) has not received any communication
(written or oral) that alleges that it or they are not in such
compliance, (iii) has all permits required by the Environmental
Laws for the conduct of the Business, and (iv) knows of no facts
or circumstances that may prevent or substantially increase the
cost of such compliance in the future.
(b) Releases. There is not occurring, and there has not
occurred at any time any "release" of any Hazardous Substance in
excess of lawful amounts at the Business, nor does Seller have
any knowledge that a "release" either is occurring or has
occurred in the past at the Business. For purposes of this
provision the terms "release" and "hazardous substance" shall
have the same meaning as those terms are given in the
Comprehensive Environmental Response, Compensation, and Liability
<PAGE>
Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986 ("CERCLA") at 42 U.S.C. 9601(22)
and (14).
(c) Waste Sites. Seller has not sent wastes from the
Business to a site which, pursuant to CERCLA or any similar state
or federal law, (i) to Seller's knowledge has been placed on the
"National Priorities List" of hazardous waste sites, (ii) to
Seller's knowledge is subject to a claim, administrative order or
other request to take "removal" or "remedial" action as those
terms are defined under CERCLA at 42 U.S.C. 9601(23) and (24),
regardless of whether such claim, order or request is made
pursuant to a validly enacted federal, state or local statute or
regulation or (iii) to Seller's knowledge is otherwise the
subject of any federal or state investigation relating to
Environmental Laws.
(d) Storage Tanks. Exhibit 5.3(d) identifies (i) all on-
site and off-site locations where Seller has stored, disposed or
arranged for the disposal of hazardous substances or wastes
originating from the Business, (ii) all underground storage
tanks, and the capacity and contents of such tanks, located at
the Business, (iii) all asbestos contained in or forming part of
any building, building component, structure or office space
making up any part of the Business and (iv) all polychlorinated
biphenyls (PCBs) used or stored at the Business.
5.4 Long Term Supply Contract. Seller and Buyer shall
enter into a contract as of the Closing which shall provide that
Seller shall be Buyer's exclusive source of booms for use in the
Business so long as the booms are competitive from a pricing and
services standpoint. A form of the agreement is attached hereto
as Exhibit 5.4.
5.5 Sufficiency of Parts for Manufacturing and Assembly
Process.
(a) Seller represents and warrants to Buyer that the
purchase orders listed on Exhibit 3.1(c) attached hereto
represent all of the parts and other items that Seller typically
orders from third-party vendors to produce the Simon Deicer and
that the items so listed are sufficient in quantity, with a 120
day lead time for delivery, when combined with the parts and
other items manufactured by Seller and described in the
immediately following sentence, to fill the sales orders on the
delivery dates indicated in Exhibit 3.1(a). Seller furthers
represents and warrants to Buyer that it can manufacture and
deliver to Buyer the parts and other items covered by the supply
contract attached hereto as Exhibit 5.4 on a schedule to allow
Buyer to meet the delivery schedule set forth in Exhibit 3.1(a).
(b) Seller represents and warrants that it will manufacture
and deliver the Simon Deicer units for Continental Airlines on
the "promised dates" set forth on Exhibit 3.1(a).
<PAGE>
ARTICLE 6
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER
6.1 Representations, Warranties and Covenants of Buyer
Buyer represents, warrants and covenants to Seller as
follows:
(a) Due Incorporation and Good Standing. Buyer is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware, and has all requisite
corporate power and authority to own, operate and lease its
property, to carry on its business as now being conducted, to
enter into this Agreement and perform its obligations hereunder.
(b) Authority Relative to Agreement. The execution,
delivery and performance of this Agreement have been duly and
effectively authorized by all necessary corporate action by
Buyer. This Agreement has been duly executed by Buyer and is a
valid, legally binding and enforceable obligation of Buyer.
(c) Effect of Agreement. The execution, delivery and
performance of this Agreement by Buyer and the consummation of
the transactions contemplated hereby will not (i) require the
consent, approval or authorization of any person, corporation,
partnership, joint venture or other business association or pub
lic authority; (ii) conflict with or result in a breach or termi
nation of any provisions of, or constitute a default under, or
result in the creation of any lien, charge or encumbrance upon
any of the properties or assets of Buyer pursuant to, any inden
ture, mortgage, deed of trust, lease, contract, agreement or
other instrument to which Buyer is a party, or by which Buyer or
any of their assets and properties are bound; or (iii) result in
a violation of Buyer's articles of incorporation or bylaws.
ARTICLE 7
TRANSACTIONS PRIOR TO CLOSING
7.1 Access to and Information Concerning Properties and
Records, Etc. Subject to the Letter Agreement dated __, 1997,
between Buyer and Seller, and upon reasonable notice to Seller,
Seller agrees that it will give to Buyer and to Buyer's counsel,
accountants and other consultants and representatives full
access, during normal business hours throughout the period prior
to the Closing Date, to all of the properties, books, contracts,
commitments and records of Seller relating to the Purchased
Assets, and will furnish Buyer during such period all such
information about the Purchased Assets as Buyer reasonably may
request.
7.2 Conduct of Business Between Execution and the Closing
Date. Seller hereby agrees that prior to the Closing Date and
except as otherwise consented to or approved by Buyer in writing:
<PAGE>
(a) Ordinary Course. Seller will operate the Business only
in the usual, regular and ordinary manner, and to the extent
consistent with such operation, will (i) preserve its present
business organization intact, (ii) keep available the services of
its present employees at the Business, and (iii) preserve its
present relationships with persons having business dealings with
it through the Business.
(b) Maintain Properties. Seller will, maintain all of the
Purchased Assets in customary repair, order and condition,
reasonable wear and use excepted, and will maintain insurance
upon all of such properties and with respect to the conduct of
the Business in such amounts and of such kinds comparable to that
in effect on the date of this Agreement.
(c) Maintain Books. Seller will maintain its books,
accounts and records in the usual, regular and ordinary manner,
on a basis consistent with prior years and in accordance with
GAAP; and Seller will endeavor to comply with all laws applicable
to it and to the conduct of the Business, and will perform all of
its obligations relating to the Business and/or the Purchased
Assets without default.
(d) Compensation. No increase shall be made in the
compensation payable or to become payable by Seller to any
employee of the Business; no bonus, profit sharing, pension,
retirement or other similar payment or arrangements for the
Business shall be paid, made or materially changed by Seller
except in the ordinary course of the administration of its
existing incentive, welfare, pension or retirement plans or
arrangements hereinabove referred to; and no employment
agreement, sales agency or other contract or arrangement with
respect to the performance of personal services for the Business
shall be entered into.
(e) No Breach. Seller will not enter into any transaction
and will use reasonable efforts not to permit any event to occur
which would result in any of the representations, warranties and
covenants contained in Article 5 not being true and correct at
and as of the time immediately after the occurrence of such
transaction or event.
(f) No Solicitation. On or after the date of the execution
hereof, Seller will not solicit, initiate or encourage any
inquiries or the submission of any higher or better offers for
the Purchased Assets. If Seller receives an offer for the
Purchased Assets, Seller will promptly notify Buyer of such offer
and thereafter provide Buyer with a copy thereof along with all
supporting information applicable thereto.
ARTICLE 8
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
8.1 Conditions Precedent to Closing. The obligations of
Buyer under this Agreement to proceed with Closing on the Closing
Date shall at all times be subject to the following conditions
precedent, any of which shall be waived by Buyer by its
proceeding with Closing on the Closing Date or any adjournment
thereof.
<PAGE>
8.2 Accuracy of Representations and Warranties. The
representations and warranties of the Seller herein contained
shall be true and correct in all material respects on and as of
the Closing Date with the same force and effect as though made on
and as of the Closing Date except as affected by transactions
contemplated hereby and except to the extent that such
representations and warranties were made as of a specified date
and as to such representations and warranties, the same have been
true as of the specified date.
8.3 Performance of Agreements. Seller shall have performed
all obligations and agreements and complied with all covenants
and conditions in this Agreement to be performed or complied with
by it at or prior to the Closing Date.
8.4 Seller's Certificate. Seller shall have furnished
Buyer with a certificate, dated the Closing Date, of an officer
of Seller substantially in form of Exhibit 8.4 attached hereto,
stating that as a further representation and warranty, the
representations and warranties contained in Article 5 are true
and correct to his best knowledge and belief on the Closing Date
as if then made and that Seller has fulfilled the conditions
specified in Sections 8.2 and 8.3 above.
8.5 Absence of Material Damage to Property. Between the
date of this Agreement and the Closing Date, there shall not have
occurred any casualty to or any condemnation by any condemnation
or governmental authority, officer or instrumentality thereof, of
the Business or the Purchased Assets as a result of which either:
(i) the monetary amount of damage or destruction or condemnation
measured by the book value of the property so damaged, destroyed
or condemned aggregates more than $5,000 in excess of the
recoverable proceeds payable to Seller under valid and existing
insurance underwritten by a responsible insurer or the amount of
compensation offered to Seller by the condemning authority, as
the case may be; or (ii) the operations of the Business may
reasonably be expected to be adversely affected.
8.6 Actions, Proceedings, Etc. All actions, proceedings,
instruments and documents required to carry out the transactions
contemplated by this Agreement or incidental thereto and all
other related legal matters shall have been satisfactory to and
approved by Robinson, Bradshaw & Hinson, P.A., counsel for Buyer,
and such counsel shall have been furnished with such certified
copies of actions and proceedings and such other instruments and
documents as they shall have reasonably requested.
8.7 Opinion of Counsel for Seller. Buyer shall have
received an opinion of counsel for Seller dated the Closing Date,
in form and substance satisfactory to Buyer and its counsel.
8.8 No Litigation. No action, suit, proceeding or
investigation shall have been instituted before any court or
governmental body, or instituted by any governmental agency in
any forum to restrain or prevent the carrying out of the
transactions contemplated by this Agreement or which might affect
Buyer's rights to own, operate and control the Purchased Assets
after the Closing Date.
<PAGE>
8.9 Resolutions. Buyer shall have received a copy of the
corporate resolutions, certified by the Secretary of Seller,
whereby the directors of Seller have approved this Agreement and
the transactions set forth herein.
8.10 Closing Date. The Closing Date shall have occurred by
September 15, 1997.
8.11 Non-Competition Agreements. Seller shall have executed
a Non-Competition Agreement, a form of which is attached hereto
as Exhibit 8.11.
8.12 Supply Contract. Seller and Buyer shall have executed
the Long Term Supply Contract attached hereto as Exhibit 5.4.
ARTICLE 9
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
9.1 Conditions Precedent to Closing. The obligations of
Seller under this Agreement to proceed with closing on the
Closing Date shall at all times be subject to the following
conditions precedent, any of which shall be waived by Seller by
its proceeding with Closing on the Closing Date or any
adjournment thereof.
9.2 Accuracy of Representations and Warranties. The
representations and warranties of Buyer herein contained shall be
true on and as of the Closing Date with the same force and effect
as though made on and as of the Closing Date except as affected
by transactions contemplated hereby and except to the extent that
such representations and warranties were made as of a specified
date, and as to such representations and warranties the same
shall have been true as of the specified date.
9.3 Performance of Agreements. Buyer shall have performed
all obligations and agreements and complied with all covenants
and conditions contained in this Agreement to be performed or
complied with it at or prior to the Closing Date.
9.4 Officer's Certificate. Buyer shall have furnished
Seller with a certificate, in substantially the form of Exhibit
9.4 hereto, dated the Closing Date, of an officer of Buyer
stating that as a further representation and warranty, the
representations and warranties contained in Article 6 are true
and correct on the Closing Date as if then made and that Buyer
has fulfilled the conditions specified in Sections 9.2 and 9.3
above.
9.5 Actions, Proceedings, Etc. All actions, proceedings,
instruments and documents required to carry out the transactions
contemplated by this Agreement or incidental thereto and all
other related legal matters shall have been satisfactory to and
approved by counsel for Seller, and such counsel shall have been
furnished with such certified copies of actions and proceedings
and such other instruments and documents as they shall have
reasonably requested.
<PAGE>
9.6 Opinion of Counsel for Buyer. Seller shall have
received an opinion of Buyer's counsel, Robinson, Bradshaw &
Hinson, P.A., dated the Closing Date, in form and substance
satisfactory to Seller and its counsel, to the effect that (i)
Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware, and has
all requisite corporate power to own, lease and operate its
properties, to carry on its businesses as then being conducted
and to enter into this Agreement and perform its obligations
hereunder; and (ii) this Agreement has been duly authorized,
executed and delivered by Buyer and is enforceable against Buyer
in accordance with its terms, except as enforcement thereof may
be limited by bankruptcy or similar laws affecting creditors'
rights.
ARTICLE 10
DELIVERIES, PAYMENTS AND OTHER ACTION
TO BE TAKEN AT THE CLOSING
10.1 Deliveries by Seller to Buyer at Closing. Seller shall
deliver to Buyer (or to the other persons indicated) the
following:
(a) Bills of Sale. Executed bills of sale, title transfer
documents, including without limitation vehicle transfer
documents, assignments and all instruments of transfer and
conveyance necessary to confirm transfer of all of Seller's
right, title and interest to be acquired by Buyer pursuant to
this Agreement, the form of such documents to be agreed upon by
the parties hereto prior to the Closing Date. A form of the Bill
of Sale is attached hereto as Exhibit 10.1(a).
(b) Certificate. The certificate of Seller referred to in
Section 8.4.
(c) Opinions. The opinion of counsel for the Seller
referred to in Section 8.7.
(d) Non-Competition. The Non-Competition Agreement
referred to in Section 8.11.
(e) Incumbency. An incumbency certificate for Seller, a
form of which is attached as Exhibit 10.1(e).
(f) Deposits. A listing of the Deposits.
(g) Long Term Supply Contract. The Long Term Supply
contract referred to in Section 5.4.
(g) Other Documents. Such other documents as may be
reasonable and necessary in the opinion of counsel for Buyer to
consummate and close the purchase and sale contemplated herein
pursuant to the terms and provisions hereof.
10.2 Payments and Deliveries by Buyer to Seller. Buyer
shall pay and deliver to Seller (or to the other persons as
indicated) the following:
<PAGE>
(a) Purchase Price. The Purchase Price paid to parties and
in the manner specified herein.
(b) Certificates. The officer's certificates referred to
in Section 9.4.
(c) Opinions. The opinion of counsel for Buyer referred to
in Section 9.6.
(d) Incumbency. An incumbency certificate for Buyer, a
form of which is attached as Exhibit 10.2(f).
10.3 Other Action to be Taken. Seller will take such
reasonable action and deliver or cause to be delivered such other
instruments and records as may be reasonably required to put
Buyer in operating control and possession of the assets of
Seller.
ARTICLE 11
ESCROW AGENT
11.1 Escrow Agent. Escrow Agent accepts its appointment
hereunder subject to the following conditions:
(a) Deposit. All amounts received by the Escrow Agent may
be processed for collection in the normal course of business by
Escrow Agent, who shall deposit such funds into the Escrow
Account which shall be an interest bearing account maintained at
a bank within the state of North Carolina selected by Escrow
Agent insured by the Federal Deposit Insurance Corporation
(hereafter the "Depository").
(b) Loss or Damage. Escrow Agent shall not be liable for
any loss caused by the failure, suspension, bankruptcy or
dissolution of the Depository.
(c) Negligence. Escrow Agent shall be liable only for loss
or damage resulting from the malfeasance or negligence of Escrow
Agent or its employees and shall not be liable for loss or damage
resulting from (a) any good faith act or forbearance of Escrow
Agent; (b) any default, error, action or omission of any party,
other than Escrow Agent; (c) any defect in the title to any
property unless such loss is covered under a policy of title
insurance issued by Escrow Agent; (d) the expiration of any time
limit or other delay which is not solely caused by the failure of
Escrow Agent to proceed in its ordinary course of business, and
in no event where such time limit is not disclosed in writing to
the Escrow Agent; (e) the lack of authenticity of any writing
delivered to Escrow Agent or of any signature thereto, or the
lack of authority of the signatory to sign such writing; (f)
Escrow Agent's compliance with all attachments, writs, orders,
judgments or other legal process issued out of any court; (g)
Escrow Agent's assertion or failure to assert any cause of action
or defense in any judicial or administrative proceeding; or (h)
any loss or damage which arises after the money in the Escrow
Account has been disbursed in accordance with terms of this
Agreement.
<PAGE>
(d) Investment. Investment of the Escrow Account shall be
subject to the rules, regulations, policies and procedures of the
Depository. All interest earned on the Escrow Account shall be
paid to the party ultimately receiving the principal upon which
the interest is being paid.
(e) Application of Escrow Account. Except as set forth
herein no amounts shall be disbursed from the Escrow Account
except upon the joint written direction of both Buyer and Seller.
If no joint written directions are received by the Escrow Agent
within one year of the Closing Date, Escrow Agent shall prepare
to and shortly thereafter file an interpleader action to resolve
the conflict. Escrow Agent shall be indemnified, saved and held
harmless by the other parties hereto for all of its expenses,
costs and reasonable attorneys' fees incurred in connection with
said interpleader action and such expenses, costs and fees may be
deducted from the funds held hereunder.
(f) Lawsuits. If Escrow Agent is made a party to any
judicial, nonjudicial or administrative action, hearing or
process based on acts of any of the other parties hereto and not
on the malfeasance and/or negligence of Escrow Agent in
performing its duties hereunder, the expenses, costs and
reasonable attorney fees incurred by Escrow Agent in responding
to such action, hearing or process may be deducted from the funds
held hereunder and the party/parties whose alleged acts are a
basis for such proceedings shall indemnify, save and hold Escrow
Agent harmless from said expenses, costs and fees to incurred.
ARTICLE 12
ENFORCEMENT AND TERMINATION OF AGREEMENT
12.1 Remedies. The Purchased Assets cannot be readily
purchased or sold in the open market and for that reason, among
others, Buyer will be irreparably damaged in the absence of
consummation of the transactions contemplated hereby. In the
event of any controversy concerning the rights of Buyer pursuant
to this Agreement, said rights of Buyer shall be enforceable by
decree of specific performance. Such remedy, however, shall be
cumulative and not exclusive, and shall not be in addition to any
other remedies the parties to this Agreement may have. If any
condition specified in Article 9 is not satisfied and such
condition is not waived by Seller, Seller may terminate this
Agreement by notice to the other specifying the reason for such
termination.
12.2 Risk of Loss. The risk of loss or damage to the
Purchased Assets by any cause, including without limitation fire
or other casualty prior to midnight of the Closing Date shall be
on Seller. In the event of such loss or damage which is not
fully replaced or repaired to the satisfaction of Buyer by the
Closing Date, or respecting which proceeds of insurance received
and held by Seller in place of the destroyed or damaged assets or
properties are inadequate in the sole judgment of Buyer to effect
such replacement or repairs, Buyer may terminate this Agreement.
Seller shall maintain all of its insurance coverage on the
Purchased Assets until at least two (2) business days following
the Closing Date.
<pag>
ARTICLE 13
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
13.1 Survival. The representations, warranties, covenants
and agreements contained in this Agreement shall be deemed to be
continuing and shall survive the Closing Date for a period of
thirty-six (36) months.
13.2 Seller' Indemnification.
(a) Indemnification. Subject to the limitations,
conditions and provisions set forth herein, Seller agrees to
indemnify, defend and hold harmless Buyer (including Buyer's
officers, directors, shareholders, employees, agents or
affiliates) (collectively, "Buyer's Indemnitees") from and
against all demands, claims, actions, losses, damages,
liabilities, costs and expenses, including without limitation,
reasonable attorney's fees, asserted against or incurred by
Buyer's Indemnitees resulting from (i) a breach of any covenant,
agreement, representation or warranty of Seller to Buyer
contained in this Agreement or any other document or instrument
delivered pursuant hereto; or (ii) liabilities which arise from
facts which occurred prior to the Closing Date or which relate to
the operation of the Business or the Purchased Assets prior to
the Closing Date and which have not been assumed by Buyer
(collectively, "Buyer's Damages").
(b) Limitation of Liability. Seller's obligation to
indemnify Buyer against any Buyer's Damages shall be subject to
all of the following limitations:
(i) No indemnification shall be required to be made by
Seller for Buyer's Damages resulting from a breach of
representation or warranty under Section 13.2(a) until the
aggregate amount of such Buyer's Damages exceeds Twenty Five
Thousand Dollars ($25,000).
13.3 Indemnification by Buyer. Subject to the limitations,
conditions and provisions set forth herein, Buyer hereby agrees
to indemnify, defend and hold Seller (and its officers,
directors, shareholders, employees, agents or affiliates)
(collectively, the "Seller's Indemnitees") harmless from and
against all demands, claims, actions, losses, damages,
liabilities, costs and expenses, including without limitation,
reasonable attorney's fees, asserted against or incurred by the
Seller's Indemnitees resulting from the operation of the Business
after the Closing Date. Notwithstanding the foregoing, Buyer
shall have no obligation or liability for any of the liabilities
described in Section 3.2 hereof.
ARTICLE 14
MISCELLANEOUS
14.1 Brokers and Finders. Each party hereto represents no
broker, agent, finder or other party has been retained by it and
no brokerage or finder's fees or agent's commissions or other
like payment has been agreed to be paid by it in connection with
this Agreement or on account of the transactions contemplated by
<PAGE>
this Agreement. Each party agrees to indemnify and hold harmless
the other party from and against any and every claim arising by
breach of the aforesaid representation and warranty in this
Section 14.1 and all costs and expenses, legal or otherwise,
which such party may incur as the result of any such claim.
14.2 Payment of Taxes. Ad valorem real and personal
property taxes shall be pro-rated to the Closing Date. Buyer
will obtain a credit against the purchase price to be paid by it
hereunder for Seller's portion of such taxes. When such taxes
are due, Buyer will actually pay all taxes for which it is given
credit hereunder.
14.3 Waivers. Seller or Buyer may by written notice to the
other (a) extend the time for the performance of any of the
obligations or other actions; (b) waive any inaccuracies in the
representations, warranties, covenants of the other contained in
this Agreement or in any document delivered pursuant to this
Agreement; (c) waive compliance with any of the covenants of the
other contained in this Agreement; or (d) waive or modify
performance of any of the obligations of the other. The waiver
by any party hereto of the breach of any provision of this
Agreement shall not operate or be construed as a waiver of any
subsequent breach.
14.4 Expenses. Except as set forth herein, each party shall
bear its own fees and expenses incurred in connection with this
Agreement, including without limitation, the fees and expenses of
its counsel and accountants.
14.5 Notices. All notices, requests, demands and other
communications which are required or may be given under this
Agreement shall be in writing and shall be deemed to have been
duly given if hand delivered or mailed registered or certified
mail, or by Federal Express, postage prepaid:
(a) If to Seller to Terex Aviation Ground Equipment, Inc.,
550 East 56 Highway, Olathe, Kansas 66061, with a copy to Terex
Corporation, 500 Post Road East, Westport, Connecticut 06880,
Attention: General Counsel.
(b) If to Buyer, to Air Transportation Holding Company,
Inc., P.O. Box 488, Denver, North Carolina 28037, Attention: J.
Hugh Bingham, President, with a copy to Thomas B. Henson,
Robinson, Bradshaw & Hinson, P.A., 1900 Independence Center, 101
North Tryon Street, Charlotte, North Carolina 28246.
(c) To such other address as either party shall have
specified by notice in writing to the other party.
14.6 Entire Agreement; Modification. This Agreement
constitutes the entire agreement between the parties and
supersedes all prior agreements and understandings, oral and
written, between the parties hereto with respect to the subject
matters hereof.
14.7 Non-Assignability. This Agreement shall be assignable
by any party hereto only with the prior written consent of the
other parties hereto.
<PAGE>
14.8 Binding Effect. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their
respective successors, heirs, legal representatives and permitted
assigns, and no other person shall acquire or have any right
arising under or by virtue of the Agreement.
14.9 Section and Other Headings. The section and other
headings contained in this Agreement are for reference purposes
only and shall not affect the meaning or interpretation of this
Agreement.
14.10 Governing Law. This Agreement shall be construed
and interpreted and the rights granted herein governed by the
provisions of the laws of the State of North Carolina.
14.11 Further Assurances. The parties agree to
cooperate with each other in effectuating this Agreement and to
execute and deliver such further documents or instruments and
take such further actions as shall reasonably be requested in
connection therewith.
14.12 Counterparts; Effectiveness. The Agreement may be
executed in one or more counterparts, each of which when so
executed and delivered shall be an original, but all of which
shall constitute but one and the same instrument. The Agreement
shall become effective when one or more counterparts have been
signed and delivered by each of the parties.
14.13 Exhibits and Schedules. The Exhibits and
Schedules are a part of the Agreement as if fully set forth
herein. All references herein to Articles, Sections, Exhibits
and Schedules shall be deemed references to such parts of the
Agreement, unless the context otherwise requires.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have set their hands
as of the date first above written.
SELLER:
TEREX AVIATION GROUND EQUIPMENT, INC.
By: /s/ David J. Langevin
Its: Authorized Officer
BUYER:
AIR TRANSPORTATION HOLDING
COMPANY, INC.
By: /s/ J. Hugh Bingham
Its: Authorized Officer
<PAGE>
