|
Exhibit
10.1
ASSET PURCHASE
AGREEMENT
THIS ASSET PURCHASE
AGREEMENT (this “Agreement”) made this 2nd day of
September, 2004 by and among A IR I
NTERNATIONAL I NCORPORATED , a
Delaware corporation (“Seller”), and A
VANTAIR , I NC ., a Nevada
corporation (“Buyer”).
Recitals
WHEREAS , Seller is
the lessee under that certain Lease Agreement with Renewal Option
(the “Lease”) dated July 8, 1986 between Seller and
Pinellas County, Florida (the “County”), as landlord,
for certain real property (“Leased Premises”) and is
the owner of certain improvements located on the Leased Premises,
including without limitation, aircraft hangars, storage facilities,
offices, shops, leasehold improvements, aircraft parking areas and
automobile parking areas (“Improvements”), and is the
owner of certain subleases (“Subleases” and
collectively with the Lease and Improvements, the
“Assets”) in the County at the St.
Petersburg-Clearwater International Airport (the
“Airport”); and
WHEREAS , Seller has
agreed to sell and assign to Buyer, and Buyer has agreed to
purchase and assume from Seller, all of Seller’s right, title
and interest in the Assets on the terms set forth
herein.
Agreement
NOW THEREFORE , in
consideration of the premises and the mutual covenants and promises
hereinafter contained, the parties hereto do hereby agree as
follows:
1. Sale of Assets
Purchase Price . For the consideration hereinafter
described and subject to the terms and conditions contained in this
Agreement, Seller hereby agrees to sell, assign, transfer and
deliver to Buyer, and Buyer hereby agrees to purchase from Seller,
free and clear of any and all liens and encumbrances, except
Permitted Encumbrances (as hereinafter defined), the Assets for a
total purchase price of Eight Hundred Thousand and No/100 Dollars
($800,000.00) (the “Purchase Price”). On the execution
of this Agreement, Buyer shall deposit with Maynard, Cooper &
Gale, P.C. (“Escrow Agent”) the sum of Twenty-Five
Thousand and 00/100 Dollars ($25,000) (“Earnest
Money”). In the event the Agreement is terminated by Buyer
pursuant to Sections 4 or 5(b), the Earnest Money shall be refunded
to Buyer. If the transaction proceeds to Closing (as defined
below), the Earnest Money and the balance of the Purchase Price
shall be paid by wire transfer to Seller at Closing. As used
herein, the term “Permitted Encumbrances” shall mean
that certain Sublease Agreement between Seller and Southeast
Airlines, Inc. (“Sublessee”) dated March 28, 2000, as
amended and extended, and any and all subleases thereunder
(collectively, the “Sublease Agreement”) and all
utility easements, rights of way, rights of access and other
standard easements and agreements affecting the Leased Premises and
recorded in the Public Records of the County, which nevertheless do
not preclude or impair the use of the Leased Premises as currently
operated.
1
2. Seller
Representations, Warranties and Covenants . Seller
represents and warrants to, and covenants with, Buyer as
follows:
(a) Organization,
etc. Seller is duly organized, validly existing and in good
standing under the laws of the State of Delaware and is authorized
to transact business in the State of Florida.
(b) Authority,
etc. Seller has full power and authority to execute and
deliver this Agreement and to perform its obligations hereunder.
This Agreement constitutes the valid and legally binding obligation
of Seller, enforceable in accordance with its terms and conditions.
With the exception of the consent of the County required pursuant
to Section 13 of the Lease, Seller need not give any notice to,
make any filing with, or obtain any authorization, consent or
approval of any government or governmental agency in order to
consummate the transactions provided for in this
Agreement.
(c) No
Violation . Neither the execution and delivery of this
Agreement, nor the consummation of the transactions provided for
herein, will violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge or other
restriction of any government, governmental agency or court to
which Seller is subject or any provision of its organizational
documents.
(d) Broker Fees
. Seller has no liability or obligation to pay any fees or
commissions to any broker, finder or agent with respect to the
transactions provided for in this Agreement for which Buyer could
become liable or obligated.
(e) Ownership of
Seller . PEMCO Aeroplex, Inc., an Alabama corporation
(“Shareholder”), is the sole shareholder of Seller.
Neither the Seller nor the Shareholder have entered into any
agreement for the sale, transfer or encumbrance of any of the stock
of Seller or the sale of Assets other than this Agreement and that
certain Asset Purchase Agreement dated February 24, 2004 with
Offshore Flight Support, Inc., which agreement has been terminated
by Seller. The transaction contemplated by this Agreement will
constitute a sale of substantially all of the assets of Seller, and
Seller shall provide the consent of the Shareholder
hereto.
(f) Litigation and
Legal Matters . Seller has no actual knowledge of any
claims, actions, demands, suits, proceedings or inquiries of, by or
before any governmental authority pending or threatened against or
affecting the Seller or the Assets that would have a material
adverse effect on the Assets.
(g) Lease; Sublease
. Seller owns a leasehold interest in the Leased Premises
pursuant to the Lease. Seller does not own, and cannot convey to
Buyer, any other interest in the Leased Premises. The Lease is in
full force and effect and there is no default by the Seller or the
County thereunder, nor does the Seller have any actual knowledge of
the occurrence of any event which but for the passing of time would
create a default. All rents and other amounts due and owing under
the Lease have been paid through July, 2004. With the exception of
the Sublease Agreement, the Seller has not sold, subleased,
assigned or granted any rights in or to any portion of the Assets,
including the Improvements or the Lease, to any third party.
Sublessee and its subtenants are in current possession of the
Leased Premises. The Sublease is in full force and effect and there
is no current default by Seller thereunder except as provided
herein. All rents and other amounts due and owing under the
Sublease have been paid through April, 2004. Sublessee currently is
in default for payment of rents from May, 2004 through the present
in the amount of $118,140.47 (the “Delinquent Rents”).
Seller has not waived or forgiven, and will not waive or forgive,
any default by Sublessee
2
under the Sublease, and all Delinquent
Rents are due to be paid in full under the Sublease. The Delinquent
Rents existing as of the date of closing shall be the property of
the Seller, and the Seller shall have the right of collection of
the Delinquent Rents. The next monthly rents paid to the Buyer
subsequent to Closing under the Sublease shall be the property of
the Buyer, and the Buyer shall not be deemed to be collecting
Delinquent Rents for the benefit of the Seller.
(h) Personal Property;
Improvements . Seller has no knowledge of any personal
property or Improvements owned by Seller and located on or at the
Leased Premises and used in connection with the Lease
(collectively, “Personal Property”). To the extent any
such Personal Property exists, Seller makes no representations or
warranties regarding the same and hereby expressly disclaims all
such representations and warranties, including without limitation,
any warranty of title. Notwithstanding, Seller agrees to quitclaim
to Buyer all of its right, title or interest in and to any such
Personal Property at Closing.
(i) Insurance .
The Assets currently are insured under a group policy covering
Seller and its affiliates. The Seller will maintain in full force
and effect through the Closing Date the insurance on the Assets now
in place, and prior to Closing Seller will bear the risk of loss of
the Assets. Such insurance coverage will be terminated effective as
of the Closing Date, and Buyer acknowledges and agrees that the
Buyer will be required to purchase separate insurance coverage for
the Assets thereafter.
(j) Employees .
The Seller does not have any employees and does not maintain any
employee benefit, pension or similar plans.
(k) Property
Taxes . Seller has paid or caused to be paid, and will pay,
all property taxes related to the Assets for all periods prior to
the Closing Date. To the extent Buyer shall become liable for
payment of any property taxes assessed against the Assets or the
Lease for any period of time prior to and including the Closing
Date, Buyer shall notify Seller of the same in writing prior to the
due date. Seller shall pay any such taxes as and when due and
provide to Buyer evidence of such payment.
(l) Disclaimer of
Representations and Warranties . Other than the
representations and warranties expressly set forth in this Section
2, SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED,
AT LAW OR IN EQUITY, WITH RESPECT TO SELLER, ANY OF ITS ASSETS
(INCLUDING WITHOUT LIMITATION THE LEASE OR THE LEASED PREMISES AND
THE ENVIRONMENTAL CONDITION THEREOF), LIABILITIES (WHETHER KNOWN OR
UNKNOWN) OR OPERATIONS, INCLUDING WITHOUT LIMITATION WITH RESPECT
TO MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR
HABITABILITY, AND ANY SUCH OTHER REPRESENTATIONS OR WARRANTIES ARE
HEREBY EXPRESSLY DISCLAIMED.
3. Buyer
Representations, Warranties and Covenants . Buyer
represents and warrants to, and covenants with, Seller as
follows:
(a) Organization,
etc. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of the State of Nevada
and is authorized to transact business in the State of
Florida.
3
(b) Authority,
etc. Buyer has full power and authority to execute and
deliver this Agreement and to perform its obligations hereunder.
This Agreement constitutes the valid and legally binding obligation
of Buyer, enforceable in accordance with its terms and conditions.
Buyer need not give any notice to, make any filing with, or obtain
any authorization, consent or approval of any government or
governmental agency in order to consummate the transactions
provided for in this Agreement.
(c) No
Violation . Neither the execution and delivery of this
Agreement, nor the consummation of the transactions provided for
herein, will violate any constitution, statute, regulation, rule,
injunction, judgment, order, decree, ruling, charge or other
restriction of any government, governmental agency or court to
which Buyer is subject or any provision of its organizational
documents.
(d) Broker Fees
. Buyer has no liability or obligation to pay any fees or
commissions to any broker, finder or agent with respect to the
transactions provided for in this Agreement for which Seller could
become liable or obligated.
(e)
Acknowledgment . Buyer hereby expressly acknowledges
and agrees that, except to the extent specifically set forth in
Section 2, Buyer is purchasing the Assets, including without
limitation, the Lease and the Seller’s leasehold interest in
and to the Leased Premises, on an “AS-IS, WHERE-IS, WITH ALL
FAULTS” basis, and no other representation or warranty shall
be implied at law or in equity. In addition, Buyer expressly
acknowledges that (i) aircraft servicing, maintenance, repair,
refurbishing, painting and manufacturing operations have been
conducted on the Leased Premises, (ii) such operations may have
included the use, storage, disposal or release of hazardous
substances by the Seller or others, and (iii) Seller is making no
representation or warranty as to the environmental condition of the
Leased Premises. Seller has provided to Buyer a copy of the Phase I
and Phase II Environmental Site Assessment of the Leased Premises
prepared by EPAC Environmental Services, Inc. dated September 6,
2002 as Project #2025881 (the “ESA”). Buyer
acknowledges and agrees that the ESA identifies certain
environmental concerns related to the Leased Premises and that
Buyer must, during the Due Diligence Period, satisfy itself as to
the environmental condition of the Leased Premises and the Leased
Premises’s compliance with all applicable environmental laws.
Notwithstanding the foregoing, it is understood and agreed that the
Buyer does not assume the liability or responsibility for any
environmental condition existing as of the date of Closing and
shall not be responsible for any remediation or obligation to any
local, state or federal governmental authority or agency. The ESA
shall be the benchmark for any and all environmental conditions
existing on the Leased Premises as of the date of
Closing.
4. Buyer’s Due
Diligence Investigations. Beginning on the date of this
Agreement and for a period of thirty (30) days thereafter (the
“Due Diligence Period”), Seller will, at reasonable
times during normal business hours:
(A) afford Buyer and its
Representatives full and free (but at all times reasonable) access
to the Seller’s personnel, properties, contracts, books and
records, and other documents and data relating to the Lease, the
Sublease, the Improvements and the operation of the Leased
Premises; and
(B) furnish Buyer with copies
of all such contracts, books and records, and other existing
documents and data relating to the Lease, the Sublease, the
Improvements and the Leased Premises as Buyer may reasonably
request; provided, however, that Buyer shall reimburse to Seller
all reasonable expenses incurred in providing such copies;
and
4
(C) furnish Buyer with such
additional financial, operating, and other data and information in
Seller’s possession relating to the operation of the Leased
Premises, the Lease or the Sublease and the Improvements as Buyer
may reasonably request; and
(D) allow Buyer to obtain
such surveys, title searches, environmental assessments,
appraisals, lien searches, inventories of Personal Property, if
any, and any other investigative reports or studies deemed
necessary by Buyer to determine and satisfy itself as to the
condition of the Lease, the Leased Premises and any other
Assets.
In the event Buyer desires to take
physical soil or ground water samples from or at the Leased
Premises, Buyer shall notify Seller and provide to Seller the
opportunity to have its representative present for such testing.
Buyer acknowledges and agrees that in connection with any on-site
inspections and investigations of the Leased Premises, Buyer shall
comply with all security and other rules and regulations of the
County, the FAA, the TSA and any other governmental or regulatory
agency with jurisdiction over the Airport. Buyer shall have the
right to terminate this Agreement if the result of Buyer’s
due diligence investigation is unsatisfactory in Buyer’s
reasonable discretion, in which event Buyer shall deliver written
notice of such termination to Seller on or before the end of the
Due Diligence Period. If Buyer does not terminate this Agreement
prior to the end of the Due Diligence Period, Buyer shall be deemed
to have satisfactorily concluded its due diligence investigations,
and the parties shall proceed to the Closing (as defined
below).
5. Final
Closing .
(a) Closing .
The purchase and sale of the Assets to be sold and purchased (the
“Closing”) will take place at the offices of
Seller’s counsel in Birmingham, Alabama, within fifteen (15)
days after the end of the later of (i) the last day of the Due
Diligence Period, or (ii) the date on which the County executes and
delivers the Consent and Release (as defined below), or such other
place, date and time as shall be agreed upon in writing by the
parties hereto (the later of such dates being the “Closing
Date”). Notwithstanding the forgoing, if Buyer has not
terminated this Agreement pursuant to Section 4 or Section 5(b) of
this Agreement and the Closing does not occur within thirty (30)
days after the last day of the Due Diligence Period, then this
Agreement shall terminate and the Earnest Money shall be paid to
Seller.
(b) Conditions to
Buyer’s Obligations . The obligations of Buyer to
consummate the transactions provided for herein are, at the option
of Buyer, subject to the satisfaction of the following conditions
at or before the Closing Date:
(i) the representations and
warranties made by Seller in this Agreement shall be true and
correct in all material respects at and as of the Closing Date,
with the same force and effect as though such representations and
warranties had been made on and as of such date; and
(ii) Seller shall have
complied in all material respects with its covenants under this
Agreement; and
5
(iii) Seller shall have
executed (or caused to be executed) and delivered to Buyer the
following:
(A) the Assignment and
Assumption of Lease in the form set forth in Schedule
5(b)(iii)(A) ) hereto;
(B) the Closing Certificate
in the form set forth in Schedule 5(b)(iii)(B ) executed by
Seller representing and warranting to Buyer that each of
Seller’s representations and warranties in this Agreement was
accurate in all respects when made and is accurate in all respects
as of the Closing Date as if made on the Closing Date;
(C) the Quitclaim Bill of
Sale and Assignment for any Personal Property owned by Seller and
located at the Leased Premises in the form set forth in Schedule
5(b)(iii)(C ); and
(D) a copy of corporate
resolution of Seller and Shareholder authorizing
transaction.
(c) Conditions to
Seller’s Obligations . The obligations of Seller to
consummate the transactions provided for herein are, at the option
of Seller, subject to the satisfaction of the following conditions
at or before the Closing Date:
(i) the representations and
warranties made by Buyer in this Agreement shall be true and
correct in all material respects at and as of the Closing Date,
with the same force and effect as though such representations and
warranties had been made on and as of such date; and
(ii) Buyer shall have
executed, if applicable, and delivered to Seller the
following:
(A) the Purchase
Price;
(B) the Assignment and
Assumption of Lease;
(C) the Closing Certificate
in the form set forth in Schedule 5(c)(ii)(C ) executed by
Buyer representing and warranting to Seller that each of
Buyer’s representations and warranties in this Agreement was
accurate in all respects when made and is accurate in all respects
as of the Closing Date as if made on the Closing Date;
(D) a copy of corporate
resolution of Buyer authorizing transaction; and
(iii) Buyer shall have
obtained, at Buyer’s sole cost and
|
