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.
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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
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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.
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(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
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(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
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(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
representati
