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Exhibit 10.10
December 1, 2000
▇▇▇▇▇▇▇▇▇ Industries, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen:
Reference is made to that certain Lease dated December 1, 2000 (the
"Real Property Lease"), between ▇▇▇▇▇▇▇▇▇ Industries, Inc. ("▇▇▇▇▇▇▇▇▇") and
Aviation Sales Distribution Services Company ("ASDSC"), covering the real
property and improvements commonly known as ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇, and being more particularly described in the Real Property Lease
(the "Property").
Prior to the execution of the Real Property Lease, ▇▇▇▇▇▇▇▇▇, ASDSC and
Aviation Sales Company ("AVS"), the parent company of ASDSC, entered into that
certain Asset Purchase Agreement dated September 20, 2000 (as amended, the
"Asset Purchase Agreement"), pursuant to which ASDSC agreed to sell or lease to
▇▇▇▇▇▇▇▇▇ substantially all of its assets, including the lease of the Property,
but specifically excluding ASDSC's aircraft spare parts inventory. In connection
with ▇▇▇▇▇▇▇▇▇'▇ lease of the Property and in addition to the agreements
contained in the Real Property Lease, both ▇▇▇▇▇▇▇▇▇ and ASDSC have agreed to
enter into this letter agreement (the "Letter Agreement") to memorialize certain
rights and options to extend the term of the Real Property Lease and to purchase
and sell the Property, all pursuant to the provisions contained herein.
Capitalized terms used herein but not otherwise defined herein shall have the
meanings given to them in the Real Property Lease or the Terms and Conditions
(as defined below).
Accordingly, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, ▇▇▇▇▇▇▇▇▇ and ASDSC hereby agree as
follows:
1. Notwithstanding anything to the contrary contained in the
Real Property Lease, ▇▇▇▇▇▇▇▇▇ and ASDSC shall have the following
rights and options (each, an "OPTION," and collectively, the
"OPTIONS"):
(a) From and after the expiration of the Term of the Real
Property Lease (including any extensions thereof
pursuant to the terms of the Real Property Lease or
pursuant to this Letter Agreement, as set forth
below), and for a period of sixty (60) days
thereafter, ASDSC shall have the right and option to
require ▇▇▇▇▇▇▇▇▇ to purchase the Property from ASDSC
subject to and in accordance with this Letter
Agreement and the terms and conditions attached
hereto as SCHEDULE 1 and incorporated herein by
reference (the "Terms and Conditions); and
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(b) At any time during the Term of the Real Property
Lease and for a period of sixty (60) days after the
expiration or earlier termination of the Term of the
Real Property Lease (including any extensions thereof
pursuant to the terms of the Real Property Lease or
this Letter Agreement), ▇▇▇▇▇▇▇▇▇ shall have the
right and option to require ASDSC to sell the
Property subject to and in accordance with this
Letter Agreement and the Terms and Conditions.
For purposes of computing the time in which either party may exercise
the Option (but not for any other purpose under the Real Property
Lease), the expiration of the Term of the Real Property Lease shall not
be deemed to have occurred until both (i) the Termination Date has
occurred in accordance with the Real Property Lease, as modified
hereby, and (ii) the earlier of the Closing or twenty (20) days after
either party hereto has notified the other party in accordance with
Section 32(a) of the Real Property Lease that the Termination Date (as
modified) has occurred.
2. In the event that either party desires to exercise its
Option, such party (the "OBLIGATING PARTY") shall notify the other
party (the "OBLIGATED PARTY") in accordance with Section 12 of the
Terms and Conditions in writing of its exercise of its Option (an
"EXERCISE NOTICE"). Following such notice, the Obligated Party shall
complete the purchase and sale of the Property (the "CLOSING") within
thirty (30) days after the date of the Exercise Notice (the "CLOSING
DATE") at ▇▇▇▇▇▇▇▇▇'▇ offices, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, or
at such other location mutually acceptable to the parties.
Notwithstanding the exercise of the Option, Kellstrom shall be
obligated to continue making the applicable rental payments to ASDSC
under the Real Property Lease until the Closing. In the event the
Closing does not occur because of the action or inaction of ▇▇▇▇▇▇▇▇▇,
ASDSC shall be entitled to all remedies provided for in the Terms and
Conditions, including, without limitation, the right of specific
performance.
3. ASDSC'S REPRESENTATIONS. ASDSC, as of the date hereof,
represents and warrants to ▇▇▇▇▇▇▇▇▇ and agrees with ▇▇▇▇▇▇▇▇▇ as
follows in connection with the Property:
(a) The Other Contracts and any matters identified in the
Title Commitment are the only contracts, agreements
or encumbrances affecting the Property;
(b) To the extent required, a certificate of occupancy
has been issued and is in effect for all improvements
on the Property. ASDSC has all licenses and permits
required to occupy and operate the Property. There
are no: (i) to ASDSC's knowledge, pending improvement
liens to be made by any governmental authority with
respect to the Property, (ii) violations of building
codes and/or zoning ordinances or other governmental
regulations with respect to the Property, (iii)
pending or, to ASDSC's knowledge, threatened lawsuits
with respect to the Property, (iv) pending or, to
ASDSC's knowledge, threatened condemnation
proceedings with respect to the Property, or (v)
defects or inadequacies in the Property
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which would adversely affect the insurability of the
Property or increase the cost thereof. All notices of
violations of law or municipal ordinances, orders or
requirements noted in or issued at any time prior to
Closing by a governmental entity, agency or authority
having jurisdiction over or affecting the Property
shall be complied with or cured by ASDSC at ASDSC's
expense prior to Closing;
(c) To the best of ASDSC's knowledge, the Property has
direct, uninterrupted access for pedestrian and
vehicular traffic to a publicly dedicated road. ASDSC
has no notice or knowledge of any fact or condition
which would result in the termination or impairment
of any vehicular or pedestrian access to the
Property. ASDSC has no notice or knowledge of any
fact or condition which would result in the
discontinuation of water, sewage, electric,
telephone, drainage or other utilities or services to
the Property which are necessary and required for the
use and operation of the Property. All impact fees
have been completely and fully paid for by ASDSC.
There shall not be any additional fees imposed as a
result of ASDSC's conveyance of the Property to
▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇'▇ subsequent use of the
Property;
(d) ASDSC has no notice or knowledge of any condition
which would interfere with ▇▇▇▇▇▇▇▇▇'▇ use and
occupancy of the Property as it is presently used;
(e) To ASDSC's knowledge, there are no latent defects in
the structural elements or roof of the improvements
on the Property and to the ASDSC's knowledge, all of
the structural elements and roof of the Property are
in good working order and condition and are not in
need of repair or replacement, ordinary wear and tear
and routine maintenance excepted;
(f) ASDSC is vested with good, indefeasible and insurable
fee simple title to the Realty, subject only to the
Permitted Exceptions as provided herein, and there
are no encroachments across the boundary lines of the
Realty except as shown on that certain survey of the
Property dated September 25, 2000, and prepared by
▇.▇. ▇▇▇▇▇ (the "Survey"). ASDSC is vested with good
and marketable title to all fixtures, equipment,
furnishings and items of personal property referred
to in SECTION 1 above free of all financing and other
liens or encumbrances;
(g) ASDSC is now in compliance with and shall comply
prior to Closing with all laws, rules, regulations,
and ordinances of all governmental authorities having
jurisdiction over the Property;
(h) Prior to Closing, no portion of the Property or any
interest therein shall be further (after the date
hereof) alienated, encumbered, conveyed or otherwise
transferred;
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(i) This Letter Agreement and the consummation of the
transaction contemplated hereby do not and will not
contravene any provision of any existing law or
regulation, order, decree, writ, injunction or
recorded restriction;
(j) ASDSC is not a "foreign person" within the meaning of
the United States tax laws and to which reference is
made in Internal Revenue Code Section 1445(b)(2). At
Closing, ASDSC shall deliver to ▇▇▇▇▇▇▇▇▇ an
affidavit to such effect, and also stating ASDSC's
employer identification number and the State within
the United States under which ASDSC was organized and
exists. ASDSC acknowledges and agrees that ▇▇▇▇▇▇▇▇▇
shall be entitled to fully comply with Internal
Revenue code Section 1445 and all related sections
and regulations, as same may be modified and amended
from time to time, and ASDSC shall act in accordance
with all reasonable requirements of ▇▇▇▇▇▇▇▇▇ to
effect such full compliance by ▇▇▇▇▇▇▇▇▇;
(k) To the extent in ASDSC's or ASDSC's agent's or
contractor's possession, ASDSC shall provide
▇▇▇▇▇▇▇▇▇ with (i) all environmental audits,
assessments or occupational health studies undertaken
during the prior five years by any Governmental
Authority, ASDSC or its agents or representatives, or
any third party, relating to or affecting the
Property; (ii) all ground water, soil, air or
asbestos monitoring undertaken by ASDSC or its agents
or representatives or undertaken by any Governmental
Authority or any third party, relating to or
affecting the Property; (iii) all written
communications between ASDSC, on the one hand, and
any Governmental Authority, on the other hand,
arising under or relative to Environmental Laws,
including, but not limited to, all notices issued to
ASDSC and pertaining to the Property; and (iv) all
outstanding citations issued under OSHA, or similar
state or local statutes, laws, ordinances, codes,
rules, regulations, orders, rulings or decrees,
relating to or affecting the Property. For purposes
hereof, "Environmental Laws" means all federal,
state, regional or local statutes, laws rules,
regulations, codes, ordinances, orders or licenses,
whether currently in existence or hereafter enacted,
any of which govern or relate to pollution,
protection of the environment, public health and
safety, air emissions, water discharges, waste
disposal, hazardous or toxic substances, solid or
hazardous waste, occupational, health and safety;
(l) ASDSC has no knowledge of any, and there is no basis
for any, pending or threatened litigation which would
affect any of the Property;
(m) There are no commissions, or compensation agreements
of any kind due in connection with the Property, and
any commissions or compensation by reason of
agreements entered into by ASDSC or ASDSC's
predecessors in connection with the Property shall be
paid by ASDSC; and
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(n) The Property constitutes all of the real property
owned and used by ASDSC in connection with the
operation of the improvements constituting a portion
of the Property, and ASDSC has entered into no
agreement giving the ASDSC the right to acquire
additional real property for use in connection with
the Property.
▇▇▇▇▇▇▇▇▇ ACKNOWLEDGES, UNDERSTANDS AND AGREES THAT ▇▇▇▇▇▇▇▇▇
WILL BE AND IS BEING GIVEN THE OPPORTUNITY TO MAKE FULL AND
COMPLETE INSPECTIONS OF THE PROPERTY TO ▇▇▇▇▇▇▇▇▇'▇
SATISFACTION AS PROVIDED FOR HEREIN. ▇▇▇▇▇▇▇▇▇ IS RELYING
SOLELY ON ▇▇▇▇▇▇▇▇▇'▇ OWN INVESTIGATIONS OF THE PROPERTY AND
NOT ON ANY INFORMATION PROVIDED OR TO BE PROVIDED BY ASDSC, OR
ANY AGENT, REPRESENTATIVE OR OTHER PARTY ACTING ON BEHALF OF
ASDSC. EXCEPT AS TO THE REPRESENTATIONS AND WARRANTIES SET
FORTH HEREIN, IT IS THE UNDERSTANDING AND INTENTION OF THE
PARTIES THAT THE SALE OF THE PROPERTY FROM ASDSC TO ▇▇▇▇▇▇▇▇▇
IS MADE ON AN "AS IS, WHERE IS" BASIS AND WITH ALL FAULTS.
ACCORDINGLY, EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN,
▇▇▇▇▇▇▇▇▇ ACKNOWLEDGES THAT ASDSC HAS NOT MADE, DOES NOT MAKE,
AND SPECIFICALLY NEGATES AND DISCLAIMS ANY REPRESENTATIONS,
WARRANTIES, PROMISES, AGREEMENTS OR GUARANTIES OF ANY KIND OR
CHARACTER WHATSOEVER, EXPRESS OR IMPLIED, ORAL OR WRITTEN,
RELATING TO, CONCERNING OR WITH RESPECT TO (I) THE VALUE,
NATURE, QUALITY OR CONDITION OF THE PROPERTY, (II) THE
COMPLIANCE OF OR BY THE PROPERTY WITH ANY LAWS, RULES,
REGULATIONS, STATUTES OR ORDINANCES OF ANY APPLICABLE
GOVERNMENTAL AUTHORITY OR BODY, (III) THE LIABILITY,
MERCHANTABILITY, MARKETABILITY, OR PROFITABILITY, SUITABILITY
OR FITNESS FOR A PARTICULAR USE OR PURPOSE OF THE PROPERTY, OR
(IV) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY.
SPECIFICALLY, ▇▇▇▇▇▇▇▇▇ ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE
EXPRESSLY SET OUT HEREIN AND THE ASSET PURCHASE AGREEMENT,
ASDSC HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY NEGATES AND
DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES REGARDING
COMPLIANCE OF THE PROPERTY WITH ANY ENVIRONMENTAL PROTECTION
OR LAND USE LAWS, RULES OR REGULATIONS, ORDERS OR
REQUIREMENTS. ▇▇▇▇▇▇▇▇▇ REPRESENTS TO ASDSC THAT ▇▇▇▇▇▇▇▇▇
SHALL RELY SOLELY UPON ITS OWN INVESTIGATIONS, INSPECTIONS AND
STUDIES OF THE PROPERTY, AND NOT ON ANY INFORMATION PROVIDED
OR TO BE PROVIDED BY ASDSC, ASDSC'S AGENTS OR CONTRACTORS OR
OTHERWISE GENERATED FROM THIRD PARTY SOURCES. ASDSC SHALL NOT
BE LIABLE OR BOUND IN ANY MANNER BY ANY VERBAL
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OR WRITTEN STATEMENTS, REPRESENTATIONS OR INFORMATION
PERTAINING TO THE PROPERTY OR THE OPERATION THEREOF FURNISHED
BY ANY PARTY PURPORTING TO ACT ON BEHALF OF ASDSC. THE
STATEMENTS AND DISCLAIMERS MADE UNDER THIS PARAGRAPH SHALL
EXPRESSLY SURVIVE THE CLOSING.
4. The parties hereby agree as follows with respect to the
extension of the Term of the Real Property Lease:
(a) The term of the Real Property Lease may be extended
by ▇▇▇▇▇▇▇▇▇ for up to six-one month periods in the
event and for so long as ▇▇▇▇▇▇▇▇▇ does not have
sufficient Availability (as defined in the Senior
Loan Agreement, hereafter defined) under the terms of
the Senior Loan Agreement to permit the purchase of
the Property in accordance with this Letter
Agreement.
(b) For purposes hereof, the term "Senior Loan Agreement"
means that certain Amended and Restated Loan and
Security Agreement dated as of December 14, 1998
among ▇▇▇▇▇▇▇▇▇ and certain subsidiaries of
▇▇▇▇▇▇▇▇▇, as borrowers, and Bank of America, N.A.,
certain other lenders and other parties thereto, as
amended through the date hereof.
(c) In the event ▇▇▇▇▇▇▇▇▇ desires to extend the Real
Property Lease beyond the initial twelve (12) month
term contained therein, ▇▇▇▇▇▇▇▇▇ may do so for one
month at a time upon providing notice to ASDSC at
least five (5) days prior to what would otherwise be
the Termination Date, along with a schedule certified
by the Chief Financial Officer of ▇▇▇▇▇▇▇▇▇ setting
forth the Availability of ▇▇▇▇▇▇▇▇▇ under the Senior
Loan Agreement.
(d) During each month after the initial twelve (12) month
Term in which the Real Property Lease continues,
▇▇▇▇▇▇▇▇▇ agrees to pay to ASDSC Rent for the
Property in an amount equal to $20,329.81 per month.
(e) If ▇▇▇▇▇▇▇▇▇ shall elect to purchase the Property
from ASDSC pursuant to this Letter Agreement, then,
notwithstanding the provisions of the Real Property
Lease to the contrary, following the expiration of
the Term, the Real Property Lease shall not be
considered terminated and all provisions of the Real
Property Lease shall remain in full force and effect
until the Property has been purchased pursuant to
this Letter Agreement and all payments due under the
Real Property Lease (other than Minimum Rental
accruing after the date of such purchase) have been
received in full by ASDSC.
(f) Upon the occurrence of an event of default under the
Real Property Lease by ▇▇▇▇▇▇▇▇▇, ASDSC may at its
option trigger the Option under this Letter
Agreement.
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(g) The definition of the word "Term" contained in the
Real Property Lease shall take into consideration any
of the six-one month extensions that are utilized in
accordance with this Letter Agreement.
▇▇▇▇▇▇▇▇▇ may assign its rights under this Letter Agreement including
(i) ▇▇▇▇▇▇▇▇▇'▇ right to exercise its Option, and (ii) any exercised Option,
provided that no such assignment shall release ▇▇▇▇▇▇▇▇▇ from any of its
obligations hereunder. ASDSC may collaterally assign any or all of its rights
under this Letter Agreement to and for the benefit of (i) its senior revolving
credit lenders and their agent (collectively, "Senior Lenders"), and (ii) the
holder of the Supplemental Term Loan Note (as defined in the Senior Lenders'
Credit Agreement) and its agent; provided that no such assignment shall release
ASDSC from its obligations hereunder or create any obligation on the part of the
Senior Lenders or the holder of the Supplemental Term Loan Note in respect
hereof.
Please confirm your acknowledgment, agreement and acceptance of the
foregoing by signing where indicated below.
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AVIATION SALES DISTRIBUTION
SERVICES COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President
Acknowledged, Agreed and Accepted:
▇▇▇▇▇▇▇▇▇ INDUSTRIES, INC.
By: /s/ Zivi ▇. ▇▇▇▇▇▇
----------------------------------------
Zivi ▇. ▇▇▇▇▇▇
President and Chief Executive Officer
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SCHEDULE 1
TERMS AND CONDITIONS
Following the exercise of any Option in accordance with the terms of
the Letter Agreement, the following Terms and Conditions shall, along with the
terms and conditions set forth in the Letter Agreement, control in connection
with the purchase and sale of the Property:
1. PURCHASE AND SALE. ASDSC will sell to ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ will
purchase from ASDSC those certain parcels of real property located in Pearland,
Brazoria County, Texas including the land and all buildings, structures and
other improvements situated thereon, as more particularly described in EXHIBIT
"A" attached hereto (the "Realty"), together with the following:
(a) All strips and gores of land lying adjacent to the
Realty and owned by ASDSC, together with all
easements, privileges, rights-of-way, riparian and
other water rights, lands underlying any adjacent
streets or roads, and appurtenances pertaining to or
accruing to the benefit of the Realty;
(b) All of ASDSC's right, title and interest in and to
furniture, fixtures, equipment, machinery and
personal property used in connection with the
operation of the Realty whether or not located on the
Realty, including, without limitation, all
attachments, appliances, fittings, fixtures and other
equipment (the "Equipment");
(c) To the extent assignable, ASDSC's right, title and
interest in and to any and all plans, drawings,
renderings, applications to governmental authorities
and all other work product made or produced in
connection with the Realty or any future development
thereof (the "Plans");
(d) To the extent assignable, all licenses and contract
rights pertaining to the ownership and/or operation
of the Realty; and
(e) All other similar assets and properties (whether
personal or real property) owned by ASDSC which are
used or held for use in connection with the Realty.
The personal property items and fixtures referred to in SECTIONS 1(a) through
1(e) inclusive are hereinafter sometimes collectively called the "Included
Personal Property". The Realty and the Included Personal Property are
hereinafter collectively called the "Property".
2. PURCHASE PRICE. The purchase price (the "Purchase Price") to be paid
by ▇▇▇▇▇▇▇▇▇ to ASDSC for the Property is One Million Six Hundred Twenty Six
Thousand Three Hundred Eighty Five and No/100 Dollars ($1,626,385.00).
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3. TERMS OF PAYMENT. At Closing, ▇▇▇▇▇▇▇▇▇ shall pay the Purchase
Price, subject to adjustments as provided herein, to ASDSC by wire transfer.
4. TITLE AND SURVEY.
(a) Within fifteen (15) business days after the Exercise
Notice, ASDSC shall cause Commonwealth Land Title
Company, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇,
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇ (the "Title Company"), to deliver
to ▇▇▇▇▇▇▇▇▇, at ASDSC's expense, a current owner's
title insurance commitment (the "Commitment") naming
▇▇▇▇▇▇▇▇▇ as the intended insured, which shall show
ASDSC to be vested with and ASDSC shall convey to
▇▇▇▇▇▇▇▇▇, good, marketable and insurable fee simple
title to the Realty, free and clear of all liens and
encumbrances, except the following (the "Permitted
Exceptions"):
(i) Ad valorem real estate taxes for 2000 and
subsequent years, which at the time of
Closing shall not yet be due and payable;
(ii) All matters shown on Schedule B, Item 9 of
the Commonwealth Land Title Insurance
Company Commitment with an effective date of
October 8, 2000 and G.F. No. 0084136 (the
"October Commitment");
(iii) Matters set forth in this Letter Agreement;
(iv) Matters to be satisfied by ASDSC at or
before the Closing of this transaction; and
(v) Any other matters acceptable to ▇▇▇▇▇▇▇▇▇.
(b) Within fifteen (15) business days after the Exercise
Notice, ▇▇▇▇▇▇▇▇▇ may obtain, at ▇▇▇▇▇▇▇▇▇'▇ expense,
an update of the Survey of the Realty (the "Updated
Survey").
The Commitment to be delivered by the Title Company to ▇▇▇▇▇▇▇▇▇ shall
show title to the Realty to be vested in ASDSC subject only to the Permitted
Exceptions. If ▇▇▇▇▇▇▇▇▇ finds title to be defective (but only to the extent not
disclosed in the October Commitment) or if the Updated Survey discloses any
encroachment in the Realty or that improvements located on the Realty encroach
on setback lines, easements, lands of others or violate any restrictions,
provisions of this Letter Agreement or applicable governmental regulations (and
provided that the Title Company cannot provide affirmative insurance as to such
items; and provided further that such items were not disclosed on the Survey,
▇▇▇▇▇▇▇▇▇ shall, within ten (10) days after ▇▇▇▇▇▇▇▇▇'▇ receipt of the
Commitment and Updated Survey, notify ASDSC in writing specifying the defect(s)
and ASDSC shall cause such defects to be cured by the Closing Date or at
Closing, including the bringing of lawsuits if necessary. ASDSC agrees to remove
by
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payment, bonding, or otherwise any lien against the Property capable of removal
by the payment of money or bonding. ASDSC shall execute appropriate documents at
Closing as required for "gap coverage" by the title insurer to the extent the
title insurer can provide such gap coverage.
5. DELIVERIES. Within fifteen (15) business days after the Exercise
Notice, ASDSC shall deliver to ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇▇'▇ agents, or make
available to ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇▇▇'▇ agents at the office of ASDSC, true,
correct and complete copies of the following (collectively the "Documentation"),
but only to the extent such Documentation is in ASDSC's or ASDSC's agent's
possession or control:
(a) All contracts, arrangements, license agreements,
concession, easements, service arrangements,
management agreements, brokerage agreements, and any
and all other contracts or agreements, whether
written or oral, if any, which are unrecorded in the
public records of the Counties in which the Realty
are located, and which may affect the Property, or
the use thereof from and after the Closing Date (the
"Other Contracts");
(b) All certificates of occupancy, permits, licenses,
authorizations or approvals (other than those which
are no longer in effect) in the custody of ASDSC
which were issued by any governmental body or agency
having jurisdiction over the Property and/or by any
utility company or authority, and which in any way
are related to the ownership, operation and/or use of
the Property (the "Licenses");
(c) All bills issued for the years 1999 and 2000 for real
estate and/or personal property taxes and any
subsequently issued notices pertaining to such real
estate taxes or assessments or personal property
taxes applicable to the Property, and evidence that
those which are due and payable have been paid in
full;
(d) All warranties and guarantees of every kind and
nature pertaining to the Property, or any portion
thereof, if any, including, but not limited to, the
roof warranty(ies), the heating, ventilating and air
conditioning warranty(ies), warranty(ies) relating to
wood boring infestation and the general contractor's
warranty(ies) (the "Warranties") which are in ASDSC's
possession or control; and
(e) Any environmental studies, reports and notices
relating to the environmental condition of the
Property within ASDSC's possession or control or
within the possession or control of any of ASDSC's
employees or agents;
6. ▇▇▇▇▇▇▇▇▇'▇ CONDITIONS PRECEDENT. Without limiting any of the rights
of ▇▇▇▇▇▇▇▇▇ elsewhere provided for herein, it is agreed that the obligations of
▇▇▇▇▇▇▇▇▇ hereunder shall be subject to the fulfillment of each of the
conditions set forth below:
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(a) The warranties and representations made by ASDSC
herein and in the Letter Agreement shall be true,
correct and complete in all respects from and after
the date of the Letter Agreement through the Closing
Date.
(b) ASDSC shall have timely performed all covenants,
undertakings and obligations and complied with all
conditions required hereunder to be performed or
complied with by ASDSC.
(c) ASDSC shall have delivered and made available to
▇▇▇▇▇▇▇▇▇ all closing documents required by SECTION
14 hereof.
In the event any of the conditions precedent set forth in this
subsection are not fulfilled as of Closing, then ▇▇▇▇▇▇▇▇▇ shall have the option
of waiving the unfulfilled conditions or canceling the Option without any
further liability.
7. ASDSC'S CONDITIONS PRECEDENT. Without limiting any of the rights of
ASDSC elsewhere provided for herein, it is agreed that the obligations of ASDSC
hereunder shall be subject to ▇▇▇▇▇▇▇▇▇ having timely performed all covenants,
undertakings and obligations and complied with all conditions required hereunder
to be performed or complied with by ▇▇▇▇▇▇▇▇▇.
8. DEFAULT PROVISIONS. In the event ▇▇▇▇▇▇▇▇▇ defaults under this
Letter Agreement, ASDSC shall have all remedies allowed to ASDSC under the Asset
Purchase Agreement. If ASDSC defaults, ▇▇▇▇▇▇▇▇▇ shall have all remedies allowed
to ▇▇▇▇▇▇▇▇▇ under the Asset Purchase Agreement, and shall also have the right
to seek specific performance of this Letter Agreement in connection with
enforcing its rights under the Asset Purchase Agreement.
9. CLOSING COSTS. ▇▇▇▇▇▇▇▇▇ shall pay for the costs of all of its tests
and inspections, the cost of any owner's policy of title insurance issued in
connection with ▇▇▇▇▇▇▇▇▇'▇ purchase of the Property, the Survey and the cost of
recording of the Deed. ASDSC shall pay the amounts necessary to clear the
Property of monetary liens and encumbrances that are not Permitted Exceptions.
Each party shall bear its own attorney's fees relating to this transaction. All
certified, confirmed, or ratified and pending liens for governmental
improvements shall be paid in full by ASDSC.
10. CLOSING. The Closing shall take place as provided in the Letter
Agreement. In any and all events, ▇▇▇▇▇▇▇▇▇ and ASDSC shall have right to waive
in writing any one or every condition precedent or contingency set forth herein
and compel the conveyance of title.
At Closing, ASDSC shall execute and deliver to ▇▇▇▇▇▇▇▇▇ the following
closing documents:
(a) a Special Warranty Deed (the "Deed"), fully executed
and acknowledged by ASDSC, conveying to ▇▇▇▇▇▇▇▇▇
good, marketable and insurable fee simple title to
the Property free and clear of all liens,
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encumbrances, restrictions covenants and other
matters, except the Permitted Exceptions;
(b) an appropriate bills paid affidavit;
(c) an affidavit of exclusive possession;
(d) a non-foreign affidavit;
(e) an appropriate ▇▇▇▇ of sale with warranty of title
for all personal property included in this
transaction;
(f) appropriate assignments of all deposits, licenses,
easements, rights-of-way, contract rights, guarantees
and warranties, intangible rights and other property
and rights included in this transaction, together
with all original Warranties;
(g) proof of payment of all real estate and personal
property taxes assessed against the Property through
2000;
(h) all original Licenses and certificates, if any;
(i) Affidavits required by the Title Company in order to
cure any defect in or objection or exception to
title, in such form and containing such statement as
may be required by such Title Company to cure any
defect and eliminate all objections and exceptions
except the Permitted Exceptions;
(j) At Closing, ASDSC shall deliver to ▇▇▇▇▇▇▇▇▇ all
keys, combinations for any other locks and all
instruments of access to the Property;
(k) Such other documents as are required by this Letter
Agreement to be delivered to ▇▇▇▇▇▇▇▇▇ at Closing.
At Closing, ASDSC and ▇▇▇▇▇▇▇▇▇ shall each execute counterpart closing
statements.
11. BROKERAGE. The parties each represent and warrant to the other that
no realtor has been involved in the transfer of the Property. If a claim for
brokerage commissions or finder's fees in connection with this transaction is
made by any broker, salesman or finder claiming to have dealt through or on
behalf of one of the parties hereto, such party shall indemnify, defend and hold
harmless the other party hereunder, and such other party's officers, directors,
agents and representatives, from all liabilities, damages, claims, costs, fees
and expenses whatsoever (including reasonable attorney's fees and court costs)
with respect to said claim for brokerage. The provisions of this Section shall
survive the Closing and any cancellation or termination of this Letter
Agreement.
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12. NOTICES. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be deemed given if
delivered by certified or registered mail (first class postage prepaid),
guaranteed overnight delivery or facsimile transmission if such transmission is
confirmed by delivery by certified or registered mail (first class postage
prepaid) or guaranteed overnight delivery, to the following addresses and
telecopy numbers (or to such other addresses or telecopy numbers which any party
shall designate in writing to the other parties):
If to Kellstrom at:
▇▇▇▇▇▇▇▇▇ Industries, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Akerman Senterfitt & ▇▇▇▇▇▇, P.A.
Las Olas Centre II, Suite 1600
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. March, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to ASDSC at:
Aviation Sales Company
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇, Chief Executive Officer
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Notices shall be deemed given when accepted or refused if delivered by hand or
by overnight delivery service, or on the third (3rd) day following the date
mailed, if mailed in accordance with the foregoing.
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13. RISK OF LOSS. In the event of any damage to the Property by fire or
other casualty, ▇▇▇▇▇▇▇▇▇ can elect to either cancel this Letter Agreement or
close with all proceeds of insurance and all claims relating to the casualty
assigned to ▇▇▇▇▇▇▇▇▇ at Closing.
14. INDEMNIFICATION. The terms of the Asset Purchase Agreement shall
control with respect to the indemnity obligations of ASDSC and ▇▇▇▇▇▇▇▇▇.
15. DUTY OF CONFIDENTIALITY.
(a) ▇▇▇▇▇▇▇▇▇ agrees to keep all information and/or
reports obtained from ASDSC, and the results of all
of ▇▇▇▇▇▇▇▇▇'▇ tests and inspections, confidential
and will not disclose any such information to any
person or entity, other than to its employees,
lawyers, accountants, consultants, partners,
investors, lenders and financial advisors, without
obtaining the prior written consent of ASDSC.
(b) ▇▇▇▇▇▇▇▇▇ and ASDSC each agree that, in addition to
the foregoing, the confidentiality provisions of the
Asset Purchase Agreement shall control as to this
Letter Agreement.
16. MISCELLANEOUS.
(a) In construing this Letter Agreement, the singular
shall be held to include the plural, the plural shall
include the singular, the use of any gender shall
include every other and all genders, and captions and
paragraph headings shall be disregarded.
(b) All of the exhibits attached to this Letter Agreement
are by reference thereto incorporated in, and made a
part of, this Letter Agreement.
(c) ASDSC agrees that at any time and from time to time,
before and after the Closing, to execute and deliver
such further documents and do such further acts and
things ▇▇▇▇▇▇▇▇▇ may reasonably request in order to
fully effectuate the purposes of this Letter
Agreement.
(d) This Letter Agreement may be executed in two or more
counterparts, each of which shall be deemed an
original, but all of which together shall constitute
one and the same instrument.
(e) Time shall be considered of the essence with respect
to all of the provisions contained in this Letter
Agreement.
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(f) This Letter Agreement shall be assignable by
▇▇▇▇▇▇▇▇▇ provided that no assignment by ▇▇▇▇▇▇▇▇▇
shall release it of any of its obligations hereunder.
(g) If the transfer of the Realty by ASDSC to ▇▇▇▇▇▇▇▇▇
is subject to compliance with any municipal, county
or state regulations concerning the subdivision of
lands, ASDSC shall be responsible for complying with
all such applicable regulations and obtaining all
required permits, plats, waiver of plats or other
approvals from the applicable governmental agency
prior to Closing.
(h) This Letter Agreement, the Real Property Lease and
the related Asset Purchase Agreement and all exhibits
attached hereto and thereto constitute the entire
agreement between the parties and supersede any prior
oral or written agreements between the parties with
respect to the subject matter hereof. This Letter
Agreement (including all exhibits and addenda
attached hereto) may not be changed, altered or
modified except by an instrument in writing executed
by all parties. This Letter Agreement (including all
exhibits attached hereto) shall be binding upon the
parties and their respective successors and assigns.
Notwithstanding the foregoing, all representations,
warranties and indemnities contained in the Asset
Purchase Agreement which are applicable to the
Property, shall survive the Closing of this
transaction and shall be applicable to the Property
to the extent set forth in the Asset Purchase
Agreement and to the extent they do not conflict with
the indemnities set forth herein.
(i) The terms, provisions and conditions of this Letter
Agreement shall be governed by and construed in
accordance with the laws of the State of Texas.
(j) The Texas Real Estate License Act requires that ASDSC
notify ▇▇▇▇▇▇▇▇▇ that ▇▇▇▇▇▇▇▇▇ should either (i)
have an attorney examine an abstract of title to the
Property, or (ii) obtain a title insurance policy
covering the Property. Notice to that effect is,
therefore, hereby given to and acknowledged by
▇▇▇▇▇▇▇▇▇.
(k) ▇▇▇▇▇▇▇▇▇ HEREBY WAIVES ITS RIGHTS UNDER THE
DECEPTIVE TRADE PRACTICES - CONSUMER PROTECTION ACT,
SECTION 17.41 ET SEQ. OF THE TEXAS BUSINESS &
COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL
RIGHTS AND PROTECTIONS. AFTER CONSULTATION WITH AN
ATTORNEY OF ▇▇▇▇▇▇▇▇▇'▇ OWN SELECTION, ▇▇▇▇▇▇▇▇▇
VOLUNTARILY CONSENTS TO THIS WAIVER.
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EXHIBIT A
Legal Description
METES AND BOUNDS DESCRIPTION
9.5360 ACRES OUT OF ▇▇▇ ▇▇ & ▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
All that certain 9.5360 acres out of Lots 77 & 78 of the Zychlinski Subdivision
according to the plat recorded in Vol. 29, Pg. 43 Brazoria County Deed Records,
Abstract 542 and being more particularly described by metes and bounds as
follows:
Beginning at a found 1" iron pipe marking a point from which the original
northwest corner of that certain called 5.00 acre tract described in a deed
dated 6/17/1987 from Pearland Investment Co. to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ filed in Vol.
433, Pg. 86 Brazoria County Official Records, bears N 00(Degree) 01' 30" -
40.00' and from which the intersection of the south right-of-way line of ▇▇▇▇▇
Road and the east right-of-way line of North Main Street (Texas Highway 35)
bears N 89(Degree) 54' 34" W - 972.32' and being on the south right-of-way line
of ▇▇▇▇▇ Road (90' wide);
Thence S 89(Degree) 54' 34" E - 354.49' with the south right-of-way line of
▇▇▇▇▇ Road as established by that certain right-of-way deed filed in Vol. 1379
Pg. 48 Brazoria County Deed Records to a set 5/8" iron rod and marking the
northwest corner of that certain 4.8584 acre tract as described in a deed dated
6/17/1987 from Pearland Investment Co. to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ filed in Vol. 433,
Pg. 86 Brazoria County Official Records; from which the common north corner of
said Lots 77 & 78 bears N 00(Degree) 01' 30" E - 40.00';
Thence East continuing with the south right-of-way line of ▇▇▇▇▇ Road (90'
wide), passing a call and found 5/8" iron rod at 450.02' and continuing a total
distance of 839.93' to a call and found 1/2" iron rod marking the northeast
corner of said 4.8584 acre tract;
Thence South - 96.05' with the west line of that certain Tract "C" as described
in a deed dated 2/28/1979 from ▇▇▇▇▇ ▇. Touisinau, Trustee to City of Pearland
filed in Vol. 1447, Pg. 287 Brazoria County Deed Records to a point for corner
marking the southeast corner of said 4.8584 acre tract and being in the bed of
an existing ditch commonly known as Hickory Slough, from which a call and found
1/2" iron rod marking the southwest corner of said Tract "C" bears South 38.56'
(called 38.95');
Thence West - 50.00' with the south line of said 4.8584 acres to a set 5/8" iron
rod for angle point;
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Thence S 69(Degree) 46' 00" W - 565.14' continuing with the south line of said
4.8584 acre tract to a set 5/8" iron rod marking the point of curvature of a
curve to the left having a radius of 283.66' a central angle of 31(Degree) 30'
00";
Thence with said curve and continuing with the south line of said 4.8584 acre
tract an arc distance of 155.95' to the point of tangency from which a set 5/8"
iron rod for reference point bears N 40(Degree) 26' 54" W - 40.25';
Thence S 38(Degree) 16' 00" W - 218.46' continuing with the south line of said
4.8584 acre tract to a point for corner being in the east line of said called
5.00 acre tract;
Thence S 00(Degree) 01' 30" W - 21.00' with the east line of said called 5.00
tract to a set 5/8" iron rod for corner marking the southeast corner of said
5.00 acre tract;
Thence West - 354.49' with the south line of said 5.00 acre tract to a call and
found 1" iron pipe for corner;
Thence N 00(Degree) 01' 30" E - 575.06' with the east line of that certain 2.00
acre tract as described in a deed dated 5/20/1986 from ▇.▇. ▇▇▇▇▇▇▇▇ to
Manhatten Building Co. filed in Vol. 283, Pg. 158 Brazoria County Deed Records
to the POINT OF BEGINNING and containing 9.5360 acres (415,389 square feet) of
land more or less.
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