EXHIBIT 10.2
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is entered into as of
this 15th day of December, 1999 by and between Tri-Star Acquisition Corp., d/b/a
Servisair Texas, Inc., a corporation organized under the laws of the State of
Texas (hereafter, "Servisair" or "Buyer"), and Tri-Star Airline Services, Inc. a
corporation organized under the laws of the State of Texas (hereafter,"Seller")
concerning the airline service business of Tri-Star which is located at the
Dallas-Fort Worth International Airport. Tri-Star is a wholly owned subsidiary
of Aviation Group, Inc.(hereafter, "AVGP"), a Texas corporation, which is a
guarantor of certain of the terms and provisions hereof. Buyer is a wholly-owned
subsidiary of Servisair USA, Inc. a Delaware corporation, and the guarantor of
certain of the provisions hereof.
RECITALS
A. Seller owns and operates an airline ground handling service business
comprising, by way of example and not of limitation (i) ground handling of
aircraft, (ii) internal and external cleaning of aircraft; (iii) baggage
handling; (iv) gate service and (v) miscellaneous cleaning (collectively
referred to herein as the "Business"), all at the Dallas-Fort Worth
International Airport, Dallas Texas (hereafter, "DFW").
B. Seller desires to sell certain of its assets to Buyer, on the terms
and conditions hereinafter set forth.
C. Buyer desires to purchase certain assets of Seller, on the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the recitals and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
SALE OF ASSETS
Section 1.1 Assets to be Sold. Subject to the terms and conditions of
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this Agreement, Seller shall sell, convey, transfer and assign to Buyer and
Buyer shall purchase from Seller all the operating assets and operations of Tri-
Star, but excluding the assets described in (S)1.3 (collectively, the "Assets")
including the following:
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(a) All of Seller's rights and interests in the personal property,
leasehold improvements, fixed assets, machinery and equipment, furniture and
fixtures, supplies, vehicles, and other similar property of Seller relating to
the Business as of the Closing Date, including but not limited to those items
set forth on Schedule 1.1 (a) (the "Personal Property");
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(b) The Leases set forth on Schedule 1.1 (b), including, inter alia,
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the operating lease for Tri-Star at DFW (the "Leases");
(c) Subject to Section 11.2, Seller's full right and benefit under any
contracts, agreements, franchises, licenses, permits, registrations or
authorizations relating to the Business including, without limitation, all
customer contracts, any additional rental contracts or leases other than the
Leases, and those specifically set forth on Schedule 1.1 (c) (collectively,
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including the Leases, the "Assumed Contracts");
(d) Subject to Section 11.2, the operating certificates, licenses and
permits of Seller relating to the Business, including but not limited to those
set forth on Schedule 1.1(d) (the "Operating Rights") to the extent that said
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operating certificates, licenses and permits shall be assignable;
(e) All goodwill of Seller associated with the Business;
(f) All intangible assets and intellectual property of Seller, including
without limitation the rights to the name "Tri-Star" and any variation thereof,
and all logos, copyrights, tradename, trademark, trade dress, service marks, and
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all associated goodwill, together with all rights of Seller to use the
foregoing, including but not limited to those set forth on Schedule 1.1 (f)
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(the "Proprietary Rights");
(g) All lists and records pertaining to any customers, suppliers,
distributors, vendors, personnel, agents and all other books and records of
Seller relating to the Business; provided, however, that Seller shall be allowed
to keep copies of all such documents and records, as well as the originals of
any state or federal tax returns;
(h) All of Seller's interest in telephone listings, fax listings, e-mail
listings, domain names and any other such directories relating to the Business;
and
(i) All other property of Seller not referred to above which is used in
the conduct of the Business.
The Assets shall be conveyed by Seller to Buyer free and clear of all
liabilities, obligations, liens and encumbrances, excepting only those
liabilities and obligations constituting the Assumed Liabilities (as hereinafter
defined).
Section 1.2 Time of Conveyance. The Assets will be conveyed to Buyer at
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the Closing, which shall be deemed by the parties hereto to occur at 12:01 a.m.
(E.S.T.) on January 1, 2000.
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Section 1.3 Assets to be Retained by Seller. The following shall not be
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transferred or sold by Seller to Buyer pursuant to this Agreement (collectively
referred to as "Excluded Assets"): (1) accounts receivable, including unbilled
receivables (work-in-progress) generated by the Business prior to Closing; (2)
all inventories used in the Business; (3) all prepaid assets and deposits, if
any; (4) all cash or cash equivalents, including deposit accounts; (5) all tax
returns, tax worksheets and tax refunds; and (6) all insurance policies,
including rights to proceeds and coverage.
Section 1.4 Purchase Price. The purchase price for the Assets (the
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"Purchase Price") shall be One Million Five Hundred Thousand Dollars
(US$1,500,000.00).
Section 1.5 Payment of the Purchase Price. At the Closing, Buyer shall
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pay to Seller the Purchase Price via wire transfer, subject to the additional
arrangements and procedures agreed to by the parties and set forth in (S)(S)
1.5.1 and 2.1 hereof.
Section 1.5.1 Deposit and Escrow. On December 13, 1999, Buyer paid a
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deposit to Seller in the amount of US $200,000.000, payable by corporate check
(hereafter, the "Downpayment"). Seller shall be authorized to retain and not
refund the Downpayment in the event of a termination of this Agreement prior to
Closing unless the cause for such failure to consummate the transaction
contemplated hereby is a material breach of a covenant or representation by
Seller. In addition, Buyer shall deposit, upon Buyer's execution of this
Agreement, via wire transfer, US $1,300,000.00 with counsel for Seller in trust
(hereafter, the "Escrow Agent") as an escrow to be held by the Escrow Agent
pending the Closing. On the Closing Date, or, if the Closing Date shall occur
on a Sunday or legal holiday, on the first business day following the Closing
Date, Buyer and Seller shall execute written instructions to the Escrow Agent to
release all funds then held by said Escrow Agent to Seller. All escrowed funds
shall be held by the Escrow Agent pursuant to the terms and conditions of that
certain Escrow Agreement of even date herewith by and among Escrow Agent, Buyer
and Seller.
Section 1.6 Assumption of Liabilities of Seller. In addition to the
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payment of the Purchase Price, Buyer, at the Closing, subject to the terms and
conditions of this Agreement, shall assume and agree to pay, perform or
discharge (i) the rents, taxes and utilities to the extent related to the period
from and after the Closing as set forth on Schedule 1.6 (the "Specified Rents,
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Taxes and Utilities"), and (ii) the obligations of Seller under the Assumed
Contracts (including herein any equipment leases entered into by Seller in
connection with the Business) arising or accruing on and after the Closing Date
in accordance with the terms thereof, (collectively, including the Specified
Rents, Taxes and Utilities, the "Assumed Liabilities"). In the event of a
conflict between the terms and provisions of this (S)1.6 and those of Schedule
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1.6, those of Schedule 1.6 shall control.
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Section 1.7 Retained Liabilities. Except for the Assumed Liabilities,
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Buyer does not and shall not assume any obligations, commitments or liabilities
of Seller (including accounts payable, accrued liabilities and revolving bank
debt of Seller). (All of such liabilities being hereinafter referred to as the
"Excluded Liabilities").
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Section 1.8 Allocation. The Purchase Price shall be allocated by the
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parties as mutually agreed at Closing.
ARTICLE 2
CLOSING
Section 2.1. Actual Time and Place of Closing. Subject to the terms and
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conditions of this Agreement, the execution of all documents necessary to the
completion of the transaction contemplated hereby shall take place at the law
offices of Jenkens & Xxxxxxxxx, Dallas, Texas, at 10:00 a.m. local time on
December 15, 1999, or sooner, if the parties so agree, but the closing of the
sale and purchase of the Assets and the assumption of the Assumed Liabilities
(the "Closing") shall be deemed by the parties hereto to have taken place as of
12:01 a.m. on January 1, 2000, subject to the payment arrangements set forth in
Section 1.5.1 hereof, or, if the conditions to Closing set forth in Article 4 of
this Agreement shall not have been satisfied by such date, as soon as
practicable after such conditions shall have been satisfied; provided, however,
that the Closing shall not occur later than any termination of this Agreement as
provided herein. The date on which the Closing shall occur shall hereinafter be
referred to as the "Closing Date."
Section 2.2. Effective Time of Closing. All transactions contemplated by
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this Agreement shall be deemed to have occurred simultaneously at 12:01 a.m.
Eastern Standard Time on the Closing Date.
ARTICLE 3
DELIVERIES TO BE MADE AT CLOSING
Section 3.1 Deliveries to be Made by Seller to Buyer. At the Closing, the
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following shall be delivered by Seller to Buyer:
(a) A xxxx of sale and assignment and any other instrument
necessary to effectively convey, assign, sell and transfer the Assets from
Seller to Buyer (the "Xxxx of Sale");
(b) Possession of all Assets;
(c) Such documents of assignment and transfer, together with
such consents and approvals as may be reasonably required to vest in Buyer all
right, title and interest of Seller in and to the Assumed Contracts, and other
intangible assets of Seller to be transferred thereunder;
(d) Evidence that Seller is in good standing in the State
of Texas; and
(e) All records and files of Seller relating to the Assets
or the Business being transferred hereunder; provided, however, that transfer of
these records and files shall be made
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in situ, and providing further, that Seller shall be permitted to keep the
originals of all organizational documents of Seller (e.g., articles of
incorporation);
(f) a certificate of an executive officer of Seller, dated
the Closing Date, certifying that: (i) all representations and warranties made
by Seller in Article 5 hereof were true and correct when made, and are true and
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correct on the Closing Date, except for changes permitted or contemplated by
this Agreement and except that representations which are specifically made as of
a specified date shall be true and correct as of such earlier date; and (ii) all
covenants and agreements contained in this Agreement or to be performed or
complied with by Seller on or prior to the Closing Date have been performed or
complied with;
(g) an opinion of Jenkens & Xxxxxxxxx, counsel for Seller,
dated the Closing Date;
(h) Certified copies of the resolutions of the board of
directors of Seller authorizing the execution hereof and of all documents
contemplated herein;
(i) Certified copies of an amendment to Seller's Articles of
Incorporation which will be promptly filed after the Closing to effect a change
in Seller's corporate name to a name completely dissimilar to its present name;
and
(j) A payoff letter regarding Seller's obligations under a
revolving line of credit with an entity known as C.I.T., along with U.C.C.-3
termination statement with respect to the Assets which CIT will authorize to be
filed upon payment of Seller's obligations to CIT under the revolving line of
credit.
Section 3.2. Deliveries to be Made by Buyer to Seller. At the Closing, the
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following shall be delivered by Buyer to Seller:
(a) Delivery of the Purchase Price required by Sections 1.5
and 1.5.1;
(b) Evidence that Buyer is in good standing in the State of
Texas;
(c) A certificate of an executive officer of Buyer dated the
Closing Date, certifying that: (i) all representations and warranties made by
Buyer in Article 6 hereof were true and correct when made, and are true and
correct on the Closing Date, except for changes permitted or contemplated by
this Agreement and except that representations which are specifically made as of
a specified date shall be true and correct as of such earlier date; and (ii) all
covenants and agreements contained in this Agreement to be performed or complied
with by Buyer on or prior to the Closing Date have been performed or complied
with;
(d) An opinion of XxXxxxx, XxXxxxx & Xxxxx, counsel for
Buyer, dated the Closing Date;
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(e) A Xxxx of Sale executed by Buyer in favor of Seller,
under which Buyer assumes the Assumed Liabilities; and
(f) Certified copies of the resolutions of Buyer's Board of
Directors authorizing the execution hereof and of all documents contemplated
herein.
ARTICLE 4
CONDITIONS PRECEDENT
Section 4.1 Conditions to Obligations of Buyer. All of the obligations of
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Buyer under this Agreement are subject to the fulfillment prior to or at the
Closing Date of each of the following conditions, any one or more of which may
be waived by Buyer:
(a) The representations and warranties of Seller contained
herein or in the Schedules attached hereto shall be true in all material
respects as of the Closing Date:
(b) Seller shall have performed and complied in all material
respects with all agreements and covenants required by this Agreement to be
performed and complied with by it prior to or at the Closing Date; and
(c) All required, material consents and approvals of all
third parties (including consents or approvals of airport authorities and
holders of contracts) which are necessary to the consummation of the transaction
contemplated hereby (the "Transactions") shall have been obtained.
Section 4.2 Conditions to Obligations of Seller. All of the obligations
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of Seller under this Agreement are subject to the fulfillment prior to or at the
Closing Date of each of the following conditions, any one or more of which may
be waived by Seller:
(a) The representations and warranties of Buyer contained
herein or otherwise delivered pursuant hereto shall be true in all material
respects as of the Closing date;
(b) Buyer shall have in all material respects performed and
complied with all the conditions required by this Agreement to be performed or
complied with by it prior to or at the Closing Date; and
(c) All required, material consents and approvals of third
parties (including consents or approvals of airport authorities) which are
necessary to the consummation of the Transactions shall have been obtained.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller and AVGP jointly and severally represent and warrant to the Buyer
that the statements contained in this Article 5 are true and correct as of the
date of this Agreement and will be true and correct as of the Closing Date.
Section 5.1 Organization of Seller. Seller is a corporation validly
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existing and in good standing under the laws of the State of Texas, and is not
required to be qualified to do business in any other jurisdiction. Seller has
the corporate power and authority to own its properties and carry on the
Business as now being conducted, to execute and deliver this Agreement and carry
out the transactions contemplated hereby. Seller has no subsidiaries nor any
interest, direct or indirect, in any other corporation or any other business
enterprise or entity.
Section 5.2 Authority; Enforceability. The execution and delivery of this
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Agreement and the due consummation of the transactions contemplated hereby by
Seller have been duly authorized by all necessary corporate action on behalf of
Seller. This Agreement constitutes the valid and binding agreement of Seller
and is enforceable against Seller in accordance with its terms, subject to any
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting generally the enforcement of creditors' rights and principles of
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equity.
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Section 5.3 No Conflict by Seller. Except as set forth on Schedule 5.3,
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neither the execution or delivery of this Agreement by Seller nor the
consummation of the transactions contemplated hereby by Seller require the
consent of any federal, state or local authority or any third party, the failure
to obtain which could reasonably be expected to result in a Material Adverse
Effect. Except as set forth on Schedule 5.3, neither the execution or delivery
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of this Agreement by Seller nor the consummation of the transactions
contemplated hereby by Seller will result in or constitute any of the following:
(a) violation of the terms of the charter or bylaws of Seller; (b) a violation
of any provision of any applicable law or regulation, or of any writ or decree
of any court or governmental instrumentality applicable to Seller or a default
or an event that, with notice or lapse of time or both, would be a default,
breach, or violation of any lease, license, promissory note, conditional sales
contract, commitment, indenture, mortgage, deed of trust, contract, or other
agreement, instrument, or arrangement to which Seller is a party or by which
Seller, the Business or any of the Assets is bound except for such defaults,
breaches, or violations which could not reasonably be expected to have a
Material Adverse Effect; or (c) the creation or imposition of any lien, charge,
or encumbrance on any of the Assets, excepting any lien, charge or encumbrance
resulting from Buyer's actions or any lien, charge or encumbrance which results
from Buyer's failure to pay or perform the Assumed Liabilities. For purposes of
this Agreement, "Material Adverse Effect" shall mean any material adverse change
in the financial condition or results of operations of the Business.
Section 5.4 Absence of Material Changes. From September 30, 1999 to the
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Closing Date, except as set forth in Schedule 5.4 attached hereto, there has not
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been:
(a) Any change constituting a Material Adverse Effect;
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(b) Any damage, destruction or loss by fire, theft or other casualty,
whether or not covered by insurance, materially and adversely affecting the
properties, assets, business or financial condition of the Business;
(c) Any acquisition of, or agreement to acquire, any stock, business,
property or assets of any other person, firm, association, corporation or other
business organization, for the Business and to which Seller is a party
involving a purchase price in excess of $10,000 other than purchases of
inventory, supplies and equipment in the ordinary course of business;
(d) Any commitment to make capital expenditures in excess of $10,000 by
any Seller with respect to the Business for additions to property, plant or
equipment;
(e) Any failure to comply in all material respects with the terms of any
Assumed Contracts (including paying all amounts due through the Closing Date);
(f) Any agreement to amend any of the provisions of the Assumed Contracts
in any material respect;
(g) Any failure to operate the Business in the ordinary course of
business; or
(h) Any disposal of the Assets outside of the ordinary course of business.
Section 5.5 Title to Assets. Seller has, and from and after the Closing
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Date, Buyer will have good and valid title to all the Assets, except those
Assets which are leased by Seller, free and clear of all liens, encumbrances,
and charges whatsoever except as set forth on Schedule 5.5 or included as
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Assumed Liabilities. The Assets are all assets (other than the Excluded Assets)
which Seller believes are necessary to operate the Business as it is currently
operated.
Section 5.6 Assumed Contracts. Except as set forth on Schedule 5.6 each
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of the Assumed Contracts is a valid and binding agreement of Seller and, to the
best of Seller's knowledge, is a valid and binding agreement of all other
parties thereto and, with respect to each such Assumed Contract, there is not
any existing material default or any material condition, event or act which with
notice or lapse of time or both would constitute a default of Seller or, to
Seller's knowledge, any other party thereto, of a material provision thereof.
The Assumed Contracts are all material contracts, agreements, commitments and
understandings, either oral or written (including, without limitation, leases,
subleases and service contracts), to which any Seller is a party which Seller
believes are necessary to operate the Business as it is currently operated.
Seller has furnished to Buyer true and correct copies of all such written
Assumed Contracts. There are no written amendments to any Assumed Contracts
which have not been furnished to Buyer. All such Assumed Contracts are
currently in full force and effect and are enforceable against Seller in
accordance with their respective terms. All rental charges and other amounts
due pursuant to the Assumed Contracts are current.
Section 5.7 Labor Relations: Employment Agreements. Except as set forth
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on Schedule 5.7, there are no (a) collective bargaining agreements, (b)
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employment agreements (excluding all
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agreements that do not relate to compensation or continued employment), or (c)
any other labor agreements which are binding on Seller with respect to employees
of the Business.
Section 5.8 Litigation. Except as set forth in Schedule 5.8, Seller (a)
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is not engaged in or, to the best knowledge of Seller, threatened with, any
claim, controversy, legal action, or other proceeding involving the operation of
the Business whether or not before any court or administrative agency, and (b)
is not in material violation of any law, judgment, order, decree, regulation or
rule of any court or governmental authority applicable to it involving the
operation of the Business.
Section 5.9 Compliance with Laws; Environment. Seller is in material
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compliance with all laws, ordinances, regulations and orders applicable to the
conduct of the Business and has no notice or knowledge of any violations thereof
applicable to the conduct of the Business, whether actual, claimed or alleged.
Without limiting the generality of the foregoing, Seller has all of the permits,
licenses and authority necessary to conduct the Business and all permits and/or
licenses for discharge into waterways, municipal sewer systems, air or the
environment. All such permits and licenses are identified in Schedule 5.9
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attached hereto. Seller is in material compliance with all federal, state and
local laws, ordinances, rules and regulations applicable to the Business
pertaining to waste disposal, toxic substances, and air or water pollution, with
all OSHA requirements and all laws, rules, ordinances and regulations of any
governmental authority concerning the exposure of persons to chemicals,
including, but not limited to, its employees and customers each as in effect as
of the Closing Date (collectively, "Environmental Laws").
Attached hereto as Schedule 5.9 is a listing of all of the following known
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to Seller which, with respect to subsections (i)-(v), would reasonably be
expected to have a Material Adverse Effect:
(i) any release of or presence known by Seller of a hazardous substance
as defined in sections 101 (22) and 101 (14) of the Comprehensive Environment
Response, Compensation and Liability Act of 1980 ("CERCLA") into, on, from or
upon the premises upon which the Business operates or the Assets are located
(the "Premises") in violation of Environmental Laws or which has created a
condition which Seller believe are reasonable likely to require Remediation (as
defined herein) under Environmental Laws; or
(ii) petroleum products (including crude oil or any fraction thereof)
released into, from or upon the Premises in violation of Environmental Laws, or
which Seller believes have created a condition reasonably likely to require
Remediation under Environmental Laws; or
(iii) storage tanks (whether currently in use, out of service or closed)
located on, under or upon the Premises; or
(iv) any adverse environmental condition which Seller believes is
--
reasonably likely to require Remediation relating to the soil or groundwater or
damage to the environment or natural resources of the Premises or to third party
property, whether arising under CERCLA or other statutes and regulations, or
common law; or
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(v) any toxic, explosive or otherwise dangerous materials or hazardous
substances, including friable asbestos, which Seller believes have been buried
beneath, concealed within or released into, on, upon, or from the Premises; or
(vi) any and all material environmental reports prepared for Seller
regarding the Premises.
Hereinafter "hazardous substances" referenced to in clause (i), petroleum
products as referred in clause (ii) and other materials and substances referred
to in clause (v) are collectively referred to as "Hazardous Substances".
"Remediation" shall mean the taking of any action to report, remove,
characterize, treat, remediate, or dispose of Hazardous Substances or
environmental contamination.
Section 5.10 Seller's Financial Statements. Attached hereto as Schedule
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5.10 are unaudited historical summaries of Seller regarding revenue, costs of
revenue and expenses for Seller's operations at DFW, for the periods stated
therein (the "Financial Information"). The Financial Information has been
prepared from the books and records of Seller, which books and records are in
accordance with generally accepted accounting principles. The Financial
Information fairly presents in all material respects the revenue, costs of
revenue and expenses of Seller for the Business, for the periods stated,
consistent with Seller's accounting principles.
Section 5.11 Employees. Attached hereto as Schedule 5.11 is a list of the
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current employees of Seller who devote all or substantially all of their work
efforts to the Business, which list contains the following information with
respect to each employee:
(i) location of such employee;
(ii) United States Department of Labor job classification;
(iii) whether such employee works full or part-time;
(iv) date of original hire; and
(v) base compensation rate, including bonuses or other remuneration above
base compensation rate.
Seller hereby represents and warrants that it has not entered into
employment contracts with any of its employees.
Section 5.12 Employee Benefit Plans. Set forth on Schedule 5.12 is a list
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and description of all employee benefit plans and programs and fringe benefits
plans and programs provided by the Business for its employees (the "Benefit
Plans"). Seller has provided Buyer with true and correct copies of its employee
handbook(s) which govern the employees working in the Business. All Benefit
Plans have been and are in substantial compliance with all (i) statutes, laws,
rules, regulations and promulgations related thereto; and (ii) plan documents,
approvals, authorizations, and determination
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letters applicable thereto. There are no pending or, to Seller's knowledge,
threatened litigation, claims or proceedings against Seller relating to any of
the Benefit Plans.
Section 5.13 Brokerage. Except as set forth in Schedule 5.13, Seller has
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not made any agreement or taken any other action which might cause anyone to
become entitled to a broker's fee or commission as a result of the transactions
contemplated hereby.
Section 5.14 Customers. Schedule 5.14 is a true and correct list of the
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ten (10) largest customers of Seller at DFW by monthly revenue during the month
of November, 1999 (customers identified on Schedule 5.14 are hereinafter
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referred to as ("Key Customers")). To the best of Seller's actual knowledge,
none of the Key Customers intends to reduce in any material respect its buying
of goods or services for the 180-day period subsequent to the Closing or request
a rate reduction from Seller or has notified Seller that it will take any such
action as a result of the sale of the Assets to Buyer.
Section 5.15 Affiliated Transactions. Except as set forth on the
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"Affiliated Transaction Schedule" attached hereto as Schedule 5.15, no officer,
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director, holder of 5% or more of any class of equity of Seller ("5%
Shareholder"), or affiliate of Seller or any person related by blood or marriage
to any such person or any entity in which any such person owns, directly or
indirectly, any beneficial interest, is a party to any agreement, contract,
commitment or transaction with Seller in connection with the Business or has any
interest, directly or indirectly, in any property used by Seller in connection
with the Business. Neither Seller nor any of its subsidiaries nor any director
or officer of Seller possesses, directly or indirectly, any financial interest
in, or is a director, officer or employee of, any corporation, firm, association
or business organization which is a substantial supplier, customer, lessor,
lessee, or competitor of the Business.
Section 5.16 Airport and Other Regulatory Matters. All certificates of
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public convenience and necessity, permits, licenses and operating rights issued
to Seller in connection with the Business by the applicable municipal, regional,
state or federal regulatory authority having or exercising jurisdiction over
common, fixed based, or other airport operations (collectively "Operating
Rights") are set forth on the "Operating Rights Schedule" attached hereto as
Schedule 5.16. Except as otherwise set forth on the "Operating Rights Schedule,"
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Seller does not require any governmental permits, consents, authorities or
approvals to conduct the Business. Between the date hereof and the Closing
Date, Seller shall maintain on file with the applicable municipal, regional or
state licensing authority, and observe the terms, of all applicable fees,
tariffs and schedules.
Section 5.17 Condition of Tangible Property. The Personal Property is in
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good condition and repair, ordinary wear and tear excepted, and is in material
compliance with all applicable laws and regulations.
Section 5.18 Title and Condition of Properties. (a) The Leases are in
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full force and effect, and Seller (as indicated on such schedule) holds a valid
and existing leasehold interest in the Leases described on Schedule 1.1(b). The
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Leases constitute all of the leases under which Seller holds a leasehold
interest in real estate or personal property. Seller has delivered to Buyer
complete and
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accurate copies of each of the Leases and none of the Leases have been modified
in any respect, except to the extent that such modifications are disclosed by
the copies delivered to Buyer. Seller is not in default under any of such
Leases, and no other party to such Leases has the right to terminate, accelerate
performance under or otherwise modify any of such Leases, including upon the
giving of notice or passage of time. To Seller's knowledge, no third party to
any such Lease is in default under such Lease.
(b) Except as disclosed on Schedule 5.18(b), Seller owns good and
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marketable title, free and clear of all liens, charges, security interests,
encumbrances and claims of others, to all of the personal property and assets
used in the Business or located on any of their premises, except for liens of
current taxes not yet due and payable, and except for property and assets leased
under the Leases. At the Closing, Seller shall convey good and marketable title
to all of the personal property included within the Assets, free and clear of
all liens, security interests, charges, encumbrances and claims of others, other
than liens for current taxes not yet due and payable, and except for property
and assets leased under the Leases.
(c) Seller's machinery, equipment and other tangible assets are in good
condition and repair, ordinary wear and tear excepted, in all material respects
and are usable in the ordinary course of business. Seller owns or leases under
valid leases all buildings, machinery, equipment and other tangible assets
necessary for the conduct of its Business as currently conducted by it. All
vehicles, tractors, and other equipment owned or leased by Seller are in
material compliance with all regulations issued by any federal or state
governmental authority.
(d) Seller is not in material violation of any applicable zoning,
building, fire or other ordinance or other law, regulation or requirement
relating to the operation of owned or leased properties, including, without
limitation, applicable environmental protection and occupational health and
safety laws and regulations. Within the five years prior to the date of this
Agreement, Seller has not received any notice of any such violation or any
condemnation proceeding with respect to any properties owned, used or leased by
it, except as has been previously disclosed to Buyer in writing.
(e) The Assets represent all of the assets utilized by Seller in the
conduct of the Business (other than those retained by Seller in (S)1.3 hereof).
5.19 Warranties; Warranty Claims:
----------------------------
(a) Except as set forth in Schedule 5.19 attached hereto and except for
-------------
warranties implied by law, in the conduct of the Business, Seller makes no
representation or warranty to their customers with respect to products sold or
services delivered by them.
(b) Except as set forth in Schedule 5.19 attached hereto, there are no
-------------
warranty claims relating to products at any time sold or services at any time
performed by Seller pending or threatened.
5.20 Tax Matters. Both parties to this Agreement acknowledge that, for
-----------
purposes of this
12
Section 5.20, all tax returns of Seller are filed as a part of the consolidated
tax returns of AVGP.
(a) Except as set forth in Schedule 5.20, Seller has duly filed all
federal, state, local and foreign tax information and tax returns (the
"Returns") required to be filed by them (all such returns being accurate and
complete) and have duly paid or made provision for the payment of all taxes and
other governmental charges (including, without limitation, interest, additions
to tax and penalties) which have been incurred or are shown to be due on said
Returns or are claimed in writing to be due from Seller or imposed on Seller or
its properties, assets, income, payroll, franchises, licenses, sales or use, by
any federal, state, local or foreign taxing authorities (collectively, the
"Taxes") on or prior to the date hereof, other than Taxes which are being
contested in good faith and by appropriate proceedings and as to which Seller
has set aside on its books adequate reserves, or which may be attributable to
the transactions contemplated hereby. The "Tax Matters Schedule" attached hereto
as Schedule 5.20 sets forth the date or dates through which the Internal Revenue
-------------
Service ("IRS") has examined the federal income tax returns of Seller, whether
singly or as members of an affiliated group, and the date or dates through which
any state, local, foreign or other taxing authority is in the process of
examining any federal, state, local, foreign or other tax return of Seller.
Except as disclosed on the "Tax Matters Schedule", (i) there are no disputes
pending, or claims asserted, for Taxes upon Seller, (ii) Seller has not been
required to give any currently effective waivers extending the statutory period
of limitation applicable to any federal, state, local or foreign return for any
period, and (iii) Seller has in effect no power of attorney or authorization to
anyone to represent them with respect to any Taxes. There exists no proposed
assessment against Seller or notice, whether formal or informal, of any
deficiency or claim for additional Tax (including, without limitation, interest,
additions to tax or penalties) except as disclosed on the "Tax Matters
Schedule."
(b) Except as disclosed on the "Tax Matters Schedule", all monies required
to be withheld from employees of Seller for income taxes, social security and
unemployment insurance taxes or collected from customers or others as sales, use
or other taxes have been withheld or collected and paid, when due, to the
appropriate governmental authority, or if such payment is not yet due, an
adequate reserve has been established.
5.21 Proprietary Rights. Seller owns and/or possesses the right to use the
------------------
Proprietary Rights. Seller has not received any notice of infringement,
misappropriation, invalidity or conflict from any third party with respect to
the Proprietary Rights; Seller has not, to Seller's knowledge, infringed,
misappropriated or otherwise conflicted with any Proprietary Rights of any third
parties; and Seller's Proprietary Rights have not been infringed by any third
parties.
5.22 Insurance. The "Insurance Schedule" attached hereto as Schedule 5.22
--------- -------------
lists each insurance policy maintained by Seller with respect to the Assets or
the Business. All of such insurance policies are in full force and effect,
Seller has paid in full all insurance premiums required to be paid to date and
Seller is not nor has Seller ever been in material default with respect to its
obligations under any of such insurance policies. Such insurance coverage is
customary for well insured entities engaged in similar lines of business.
13
5.23 Airport and Other Regulatory Matters. Except as otherwise set forth
------------------------------------
in Schedule 1.1(f), Seller requires no governmental permits, consents,
---------------
authorities or approvals to conduct the Business. Between the date hereof and
the Closing Date, Seller shall maintain on file with the applicable municipal,
regional or state licensing authority, and observe the terms, of all applicable
fees, tariffs and schedules.
5.24 Disclosure. Neither this Agreement nor any of the schedules,
----------
attachments or exhibits hereto contain any untrue statement of a material fact
or omit a material fact necessary to make the statements contained herein or
therein, in light of the circumstances in which they were made, not misleading.
There is no material fact which has not been disclosed in writing to Buyer of
which any officer, director, shareholder, or key employee of any Seller is aware
and which materially adversely affects or could reasonable be anticipated to
affect materially adversely the Business or the Assets.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer and Servisair USA, Inc. jointly and severally represent and warrant
to the Seller that the statements contained in this Article 6 are true and
correct as of the date of this Agreement and will be true and correct as of the
Closing Date:
Section 6.1 Organization. Buyer is a corporation duly organized, validly
------------
existing and in good standing under the laws of the State of Texas. Buyer has
all requisite power and authority to execute and deliver this Agreement and
carry out the transactions contemplated hereby.
Section 6.2 Authority, Enforceability, The execution and delivery of this
-------------------------
Agreement and the due consummation of the transactions contemplated hereby by
Buyer have been duly authorized by all necessary corporate action. This
Agreement constitutes the valid and binding agreement of Buyer enforceable
against Buyer in accordance with its terms, subject to any applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting generally the enforcement of creditors' rights and principles of
equity.
Section 6.3 No Conflict by Buyer. Except as set forth on Schedule 6.3,
-------------------- ------------
neither the execution or delivery of this Agreement by Buyer nor the
consummation of the transactions contemplated hereby by Buyer require the
consent of any federal, state or local authority or any third party. Except as
set forth on Schedule 6.3, neither the execution or delivery of this Agreement
------------
by Buyer nor the consummation of the transactions contemplated hereby by Buyer
will result in or constitute any of the following: (a) a violation of the terms
of the charter or bylaws of Buyer; (b) a violation of any provision of any
applicable law or regulation, or of any writ or decree of any court or
governmental instrumentality; (c) a default or an event that, with notice or
lapse of time or both, would be a default, breach, or violation of any lease,
license, promissory note, conditional sales contract, commitment, indenture,
mortgage, deed of trust, contract, or other agreement, instrument, or
arrangement to which Buyer is a party or by which Buyer is bound that would
result in the right of any other person to cause the rescission of the
transactions contemplated hereunder or to assert any claim against Buyer;
14
or (d) the creation or imposition of any lien, charge, or encumbrance on any
asset of Buyer, which might adversely affect Buyer's ability to consummate the
transactions contemplated by this Agreement.
Section 6.4 Litigation. Except as set forth on Schedule 6.4, Buyer (a) is
----------
not engaged in or, to the knowledge of Buyer, threatened with, any claim,
controversy, legal action, or other proceeding whether or not before any court
or administrative agency, any adverse determination of which might adversely
affect Buyer's ability to consummate the transactions contemplated by this
Agreement, and (b) is not in violation, to any material extent, of any law,
judgment, order, decree, regulation or rule of any court or governmental
authority applicable to it that would result in the right of any other person to
cause the rescission of the transactions contemplated hereunder.
Section 6.5 Brokerage. Except as set forth on Schedule 6.5, Buyer has
--------- ------------
not made any agreement or taken any other action which might cause anyone to
become entitled to a broker's or finder's fee or commission as a result of the
transactions contemplated hereby.
Section 6.6 Availability of Funds. At the Closing, Buyer will have
---------------------
available sufficient funds to pay the Purchase Price to Seller.
ARTICLE 7
CONFIDENTIALITY
If for any reason the transactions contemplated by this Agreement are not
consummated, each of the parties shall keep confidential (subject to applicable
law and legal process) the terms and conditions of this transaction and any
information which one party shall have obtained from the other (unless in the
public domain); and in the event this Agreement is not consummated, each party
shall promptly return to the other party all schedules, documents, or papers or
other written information without retaining copies thereof, previously furnished
to, or otherwise obtained by one party from the other as a result of this
Agreement or in connection with the same.
After the Closing and subject to applicable law and legal process, Buyer
and Seller shall use their best efforts to keep confidential the terms of this
transaction.
ARTICLE 8
OTHER COVENANTS
Section 8.1 Employees. Seller shall transition to the employment of Buyer
---------
all the employees of the Business described on Schedule 8.1 as of the Closing.
------------
In accordance with the terms of any applicable Benefit Plan (as listed on
Schedule 5.12) and applicable law, Seller will be solely responsible for all
--------------
benefits provided under any such Benefit Plan (including, but not limited to,
termination, severance and COBRA benefits) to the employees of the Business. As
of the Closing, Seller shall satisfy all accrued, earned and outstanding
employee benefit obligations to their employees
15
at their sole cost and expense. Effective as of the Closing, Buyer will offer
employment on such terms and conditions as the Buyer shall determine to all the
employees described in Schedule 8.1. Buyer will use its best efforts to
------------
grandfather such employees under its Employee Benefit Plans so that such
employees will receive credit for service while employed by Seller.
Section 8.2 Lock-up Agreement. During the term of this Agreement, Seller
-----------------
will not entertain, solicit, initiate or encourage any acquisition proposal with
respect to all or a substantial portion of the stock of any Seller or the assets
of the Business (an "Acquisition Proposal"). During the term of this Agreement,
Seller will not enter into any agreement or contractual commitment with respect
to an Acquisition Proposal, whether or not such agreement or contract is
secondary and conditioned on the termination of this Agreement.
ARTICLE 9
INDEMNIFICATION
Section 9.1 Seller Indemnification.
----------------------
(a) The Seller and AVGP, jointly and severally (Seller and AVGP, for the
purposes of this Article 9 only, are referred to collectively as "Seller") shall
indemnify and hold harmless Buyer (but only up to and including an amount equal
to the Purchase Price) from and against all charges, complaints, actions, suits,
proceedings, hearings, investigations, claims, demands, judgments, orders,
decrees, stipulations, injunctions, damages, dues, penalties, fines, amounts
paid in settlement, liabilities, obligations, taxes, liens, losses, expenses and
fees, including all attorney's, investigator's or consultant's fees and court
costs ("Losses") incurred or suffered by Buyer as a direct result of, (i) any
Loss or Losses resulting from any breach of the warranties, representations and
covenants of Seller contained in this Agreement, or any schedule or exhibit
hereto, and (ii) any and all liabilities and obligations (including any
contingent liabilities) of Seller which are not expressly assumed by Buyer
hereunder, whether presently known or unknown, excluding only those liabilities
and obligations which are expressly assumed by Buyer under Section 1.6 of this
Agreement.
The obligation of Seller to provide the indemnity granted pursuant to this
(S)9.1 shall not apply for amounts in controversy which do not total at least
one per cent (1%) of the Purchase Price (hereafter, the "Indemnity Threshold");
provided, however, that once the amount in controversy exceeds the Indemnity
Threshold, Seller's indemnity obligation applies to all amounts in controversy,
without deduction or setoff.
The obligation of Seller to provide the indemnity granted pursuant to this
(S)9.1 shall also be reduced pari passu with the receipt by Buyer of insurance
proceeds as compensation for the Losses, and if Seller shall have previously
indemnified Buyer for such Losses, Buyer shall remit such insurance proceeds to
Seller, in an amount equal to the lesser of (i) Seller's previous payments to
Buyer in respect of such Losses or (ii) the amount received by Buyer from its
insurance carrier(s).
16
(b) Seller shall indemnify and hold harmless Buyer from and against all
Losses incurred or suffered as a result of any environmental Loss or
environmental Losses resulting from any release of or presence of a Hazardous
Substance into, on, from or upon the Premises or any off-site location to which
Hazardous Substances generated at the Premises were disposed of or released, or
violation of Environmental Law with respect to the Premises, to the extent such
Losses were caused by conditions arising prior to Closing or violations of
Environmental Laws prior to Closing.
(c) Buyer acknowledges and agrees that Seller shall not have any liability
under any provision of this Agreement for any Loss to the extent that such Loss
relates solely to actions taken by Buyer or its affiliates or any of their
respective directors, officers, employees or agents after the Closing Date.
Buyer shall take and cause its affiliates (including their respective directors,
officers, employees and agents) to take all reasonable steps to mitigate any
Loss described in Section 9. 1 (a) upon becoming aware of any event which would
reasonably be expected to, or does, give rise thereto, including incurring
minimal costs to remedy the breach, event or condition which gives rise to the
Loss.
Section 9.2 Buyer's Indemnification.
-----------------------
(a) Buyer and Servisair USA, Inc., jointly and severally (Buyer and
Servisair USA, Inc., for the purposes of this Article 9 only, are referred to
collectively as "Buyer") shall indemnify and hold harmless Seller (but only up
to and including an amount equal to the Purchase Price) against Losses incurred
or suffered by Seller as a direct result of (i) any breach of the warranties,
representations and covenants of Buyer contained in this Agreement, or any
schedule or exhibit hereto and (ii) any of the Assumed Liabilities or the
operation of the Business following Closing.
The obligation of Buyer to provide the indemnity granted pursuant to this
(S)9.2 shall not apply for amounts in controversy which do not total at least
one per cent (1%) of the Purchase Price (hereafter, the "Indemnity Threshold")
provided, however, that the Indemnity Threshold shall not apply to obligations
of Buyer under the Assumed Liabilities which arise or occur after the Closing;
and provided further, however, that once the amount in controversy exceeds the
Indemnity Threshold, Buyer's indemnity obligation applies to all amounts in
controversy, without deduction or setoff.
The obligation of Buyer to provide the indemnity granted pursuant to this
(S)9.2 shall also be reduced pari passu with the receipt by Seller of insurance
proceeds as compensation for the Losses, and if Buyer shall have previously
indemnified Seller for such Losses, Seller shall remit such insurance proceeds
to Buyer, in an amount equal to the lesser of (i)Buyer's previous payments to
Seller in respect of such Losses or (ii) the amount received by Seller from its
insurance carrier(s).
(b) Buyer shall indemnify and hold harmless Seller for and against all
Losses incurred or suffered as a result of, any environmental Loss or
environmental Losses resulting from any release of or presence of a Hazardous
Substance into, on, from or upon the Premises or any off-site location to which
Hazardous Substances generated at the Premises were disposed of or releases, or
violation
17
of Environmental Law, to the extent such Losses were caused by conditions
arising subsequent to Closing or violations by Buyer of Environmental Laws
subsequent to Closing.
(c) Seller shall take and cause its affiliates (including their respective
directors, officers, employees and agents) to take all reasonable steps to
mitigate any Loss described in Section 9.2(a) upon becoming aware of any event
which would reasonably be expected to, or does, give rise thereto, including
incurring minimal costs to remedy the breach, event or condition which gives
rise to the Loss.
Section 9.3 Survival of Indemnity; Certain Conditions of Indemnity.
------------------------------------------------------
(a) The representations and warranties contained herein are and will be
deemed and construed to be continuing representations and warranties and will
survive the Closing and, other than fraudulent misrepresentations and breach of
the representations set forth in Section 5.21, continue in full force and effect
thereafter for twelve (12) months after the Closing Date. All fraudulent
misrepresentations and breach of the representations set forth in Section 5.21
shall continue in full force and effect until expiration of the applicable
statute of limitations. All representations and warranties relating to tax,
ERISA or environmental matters shall survive and continue for any applicable
statute of limitation period. All representations and warranties relating to
ownership shall survive and continue in perpetuity. If a notice of breach is
given within any applicable time period, the indemnifying party shall be
responsible for all Losses resulting from, arising out of, or related to such
breach, including all Losses suffered after the date notice has been given.
(b) As to any environmental Loss, the indemnification provisions in (S)(S)
9.1 (b) and 9.2(b) shall govern over the indemnification provisions in
(S)(S) 9.1 (a) and 9.2(a).
Section 9.4 Demands and Actions. The party from whom indemnity is sought
-------------------
("Indemnitor") reserves the right to contest and defend by all appropriate legal
or other proceedings any demand, assertion, claim, action or proceeding with
respect to which it has been called upon to indemnify the party who seeks
indemnity ("Indenmitee") under the provisions of this Agreement; provided,
however, that:
(a) Notice of the intention so to contest shall be delivered to Indemnitee
within twenty (20) calendar days from the date of receipt by Indemnitor of
notice of the assertion of such demand, assertion, claim, action or proceeding;
and
(b) Such contest shall be conducted by reputable attorneys employed by
Indemnitor at Indemnitor's cost and expense, but Indenmitee shall have the right
to participate in but not control such proceedings and to be represented by
attorneys of its own choosing, at its own cost and expense.
Should Indemnitor so elect to assume and control the defense and settlement
of any claim, Indemnitor will not be liable to Indenmitee for legal expenses
subsequently incurred by the Indemnitee in connection with the defense or
settlement thereof. If Indemnitor assumes such defense, Indemnitee
18
shall have the right to participate in, but not control, the defense thereof and
to employ counsel, at its own expense, separate from the counsel employed by
Indenmitor. If Indenmitor shall have assumed the defense of any claim,
Indenmitee shall not admit any liability with respect to, or settle, compromise
or discharge, such claim without Indemnitor's prior written consent. If
Indenmitor has not so assumed the defense of and Indemnitee shall settle,
compromise or discharge any claim without Indemnitor's consent, such settlement,
compromise or discharge shall not be conclusive as to the amount of Indenmitee's
Losses, if any, with respect to such claim but may be used as evidence of such
amount.
ARTICLE 10
TERMINATION
Section 10.1 When Agreement May Be Terminated. This Agreement may be
--------------------------------
terminated at any time prior to the Closing:
(a) By mutual written consent of Buyer and Seller; or
(b) By Buyer or Seller, if the conditions set forth in (S)(S)1.5.1 and 2.1
hereof shall not have been satisfied by December 15, 1999, and the Closing shall
not have occurred by January 1, 2000 ( or, at the latest, the first business day
thereafter); provided, however, that this right to terminate shall not be
available (A) if the only matter causing a delay is the approval of the
applicable airport authorities to this transaction or (B) to any party whose
failure to fulfill any obligation under this Agreement has been the cause of or
resulted in the failure of the Closing to occur on or before such date.
Section 10.2 Effect of Termination. In the event of termination of this
---------------------
Agreement by either Buyer or Seller as provided above, this Agreement shall
forthwith terminate and there shall be no liability on the part of either Buyer
or Seller, except for liabilities arising from a breach of this Agreement prior
to such termination.
ARTICLE 11
MISCELLANEOUS PROVISIONS
Section 11.1 Good Faith: Further Assurances Further Cooperation. The
--------------------------------------------------
parties to this Agreement shall in good faith undertake to perform their
obligations under this Agreement, to satisfy all conditions and to cause the
transactions contemplated by this Agreement to be carried out promptly in
accordance with the terms of this Agreement. Upon the execution of this
Agreement and prior to and following the Closing, the parties hereto shall do
such things as may be reasonably requested by the other parties hereto in order
more effectively to consummate or document the transactions contemplated by this
Agreement, including the execution and delivery to both parties and their
respective successors of additional and further documents of transfer and
assignment of any of the Assets. Acknowledging that the nature of the
transactions contemplated hereby is such that continued cooperation between
themselves before and after the Closing with respect to the business
19
of Seller will be required, the parties hereto hereby agree to cooperate with
the other to the extent reasonably necessary to enable the other to obtain such
information and take such actions are required of them, and each party further
agrees that, subject to applicable attorney-client privilege and obligations
owed to third parties, the Seller shall have reasonable access to the books and
records transferred to Buyer, and the Buyer shall have reasonable access to the
books and records retained by Seller.
Section 11.2 Consent of Third Parties. Nothing in this Agreement shall be
------------------------
construed as an attempt to assign any contract, agreement, permit, franchise, or
claim included in the Assets which is by its terms or by law nonassignable
without the consent of the other party or parties thereto, unless such consent
shall have been given or unless all the remedies for the enforcement thereof
enjoyed by Seller would, as a matter of law, pass to Buyer as an incident of the
assignments provided for by this Agreement. In order, however, to provide Buyer
with the full realization and value of every contract, agreement, permit,
franchise and claim of the character referred to in the immediately preceding
sentence, Seller agrees that, on and after the Closing, it will, at the request
and under the direction of Buyer (at Buyer's sole cost and expense, which
amounts or reasonable estimates thereof shall be paid in advance), take all
reasonable actions (a) to assure that the rights of Seller under such contracts,
agreements, permits, franchises, and claims shall be preserved for the benefit
of Buyer and (b) to facilitate receipt of the consideration to be received by
Seller in and under every such contract, agreement, permit, franchise, or claim,
which consideration shall be held for the benefit of, and shall be delivered to,
Buyer.
Section 11.3 Notices. All notices, communications and deliveries under
-------
this Agreement shall be made in writing signed by the party making the same,
shall specify the section of this Agreement pursuant to which it is given, and
shall be deemed given on the date delivered if delivered in person, by special
or overnight delivery, or on the third (3rd) business day after mailed if mailed
first-class mail (with postage prepaid, return receipt requested) as follows:
To Buyer:
---------
Servisair USA, Inc.
0000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
with a copy to:
XxXxxxx, XxXxxxx & Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Xx.
20
To Seller:
----------
Aviation Group, Inc.
000 Xxxxx Xxxxx #0000
Xxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxx
with a copy to:
Jenkens & Xxxxxxxxx
0000 Xxxx Xxxxxx, #0000
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx, Esq.
or to such other representative or such other address as the parties hereto may
furnish to the other parties in writing. If notice is given pursuant to this
Section 11.3 of a permitted successor or assign of a party to this Agreement,
then notice shall be given as set forth above to such successor or assign of
such party.
Section 11.4 Assignment. This Agreement shall be binding upon and shall
----------
inure to the benefit of the parties hereto, and their respective legal
representatives, heirs, successors and assigns. No assignment or transfer of
rights and obligations hereunder shall be made except with the prior written
consent of the parties hereto.
Section 11.5 Captions; Definitions. The titles or captions of articles,
---------------------
sections or subsections contained in this Agreement are inserted only as a
matter of convenience and for reference and in no way define, limit, extend or
describe the scope of this Agreement or the intent of any provision hereof. The
parties agree to all definitions in the statement of parties to this Agreement
and in the other introductory language to this Agreement. For purposes of this
Agreement, the term "knowledge" shall be construed to mean both knowledge of
which such party is actually possessed, and that knowledge which may be
legitimately imputed to such party.
Section 11.6 Controlling Law; Waiver; Remedies Cumulative. This Agreement
--------------------------------------------
shall be construed and enforced in accordance with the laws of the State of
Texas, without regard to its applicable conflict of laws provisions. This
Agreement may not be altered or amended except in a writing signed by Seller and
Buyer. The failure of any party hereto at any time to require performance of
any provision hereof shall in no manner affect the right to enforce the same.
No waiver by any party hereto of any condition, or of the breach of any term,
provision, warranty, representation, agreement or covenant contained in this
Agreement, whether by conduct or otherwise, in any one or more instances shall
be deemed or construed as a further or continuing waiver of any
21
such condition or breach or a waiver of any other condition or of the breach of
any other term, provision, warranty, representation, agreement or covenant
herein contained.
Section 11. 7 Exhibits and Schedules. All exhibits and schedules and
----------------------
attachments to exhibits and schedules and any other attachments to this
Agreement are hereby incorporated into this Agreement and are hereby made a part
of this Agreement as if set out in full in the first place that reference is
made thereto.
Section 11.8 Expenses. Except as otherwise set forth herein, each party
--------
to this Agreement shall pay its own expenses incurred in connection herewith.
Section 11.9 Counterparts; Entire Agreement. This Agreement may be
------------------------------
executed by each party upon a separate copy, and in such case one counterpart of
this Agreement shall consist of enough of such copies to reflect the signatures
of all of the parties to this Agreement. This Agreement shall become effective
when one or more counterparts has been signed by each of the other parties to
this Agreement. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, and it shall not be necessary in
making proof of this Agreement or the terms of this Agreement to produce or
account for more than one of such counterparts. This Agreement together with
all schedules and exhibits hereto and all other agreements and undertakings
provided for hereunder shall constitute the entire agreement of the parties and
there are no other written or oral understandings or agreements among the
parties.
Section 11.10 Enforcing the Agreement.
-----------------------
(a) Enforceability. If any of the provisions of this Agreement shall be
--------------
held invalid, illegal or unenforceable by the final determination of a court of
competent jurisdiction and all appeals therefrom shall have failed or the time
for such appeals shall have expired, such provision or provisions shall be
deemed eliminated from this Agreement but the remaining provisions shall
nevertheless be given full effect. In the event this Agreement or any portion
hereof is more restrictive than permitted by the law of the jurisdiction in
which enforcement is sought, this Agreement or such portion shall be limited in
that jurisdiction only to the extent required by the law of that jurisdiction.
If a court of competent jurisdiction shall determine that the terms of this
Agreement are partially or wholly inoperative, unenforceable or invalid in a
particular case because of their time or geographic scope or for any other
reason, such court shall have the power to limit such time or geographic scope
or otherwise to recast the terms of this Agreement in such case as to permit its
enforcement to the greatest extent permitted by applicable law.
(b) Injunctive Relief. In the event of a breach or threatened breach by
-----------------
any of the parties of any of the agreements and obligations set forth herein,
monetary damages or the other remedies at law that may be available to the non-
breaching party for such breach or threatened breach may be inadequate and,
without prejudice to the non-breaching party's right to pursue any remedies at
law or in equity available to it for such breach or threatened breach, including
without limitation the recovery of damages, the nonbreaching party will be
entitled to seek injunctive relief as a means of having the breaching party
comply with the provisions herein.
22
Section 11.11 Transition Assistance. From the date hereof and until three
---------------------
years after the Closing, Seller shall not in any manner take any action which is
designed, intended or might be reasonably anticipated to have the effect of
discouraging employees, customers, suppliers, lessors and other business
associates from maintaining the same business relationships with Buyer after the
date of this Agreement as were maintained with Seller prior to the date of this
Agreement.
Section 11.12 Non-Compete-, Non-Solicitation.
------------------------------
(a) As a significant inducement of Buyer to enter into and to perform its
obligations under this Agreement, Seller agrees that, for a period of five
years after the Closing Date (the "Non-Competition Period"), neither it, nor any
of its affiliates shall, within 100 miles of DFW (the "Geographical Area")
directly or indirectly, either for themselves or any other person, legal or
natural: (i) engage in the sale of goods or provision of services which are
substantially identical to those goods sold or services provided, as the case
may be, in the Business (or any part thereof) being sold to Buyer hereunder (the
"Restricted Business"), except that the foregoing shall not prohibit Seller from
being a passive owner of not more than 2% of the outstanding stock of any class
of a corporation which is publicly traded, so long as it has no active
participation in the business of such corporation; (ii) offer employment to or
hire any current employee of the Business without the prior written consent of
Buyer; or (iii) solicit or do business with any customer of Buyer who was a
customer of Seller at any time during the one-year period immediately prior to
the Closing Date for the purposes of soliciting or otherwise doing business
substantially identical to, or competitive with, the Business in the
Geographical Area.
(b) If, at the time of enforcement of this Section 11.12 a court shall hold
that the duration, scope or area restrictions stated herein are unreasonable
under circumstances then existing, the parties agree that the maximum duration,
scope or area reasonable under such circumstances shall be substituted for the
stated duration, scope or area.
(c) Seller recognizes and affirms that in the event of breach by it of any
of the provisions of this Section money damages would be inadequate and Buyer
would have no adequate remedy at law. Accordingly, Seller agrees that Buyer
shall have the right, in addition to any other rights and remedies existing in
its favor, to enforce its rights and the obligations of Seller under this
Section 11.12 not only by an action or actions for damages, but also by an
action or actions for specific performance, injunction and/or other equitable
relief without posting any bond or security to enforce or prevent any
violations, whether anticipatory, continuing or future, of the provisions of
this Section including, without limitation, the extension of the Non-Competition
Period by a period equal to (i) the length of the violation of this Section
11.12 plus (ii) the length of any court proceedings necessary to stop such
violation. In the event of a breach or violation by Seller of any of the
provisions of this Section 11.12, the running of the Non-Competition Period, but
not of the obligations of Seller under this 11.12, shall be tolled during the
period during which such occurrence of any alleged breach or violation is
investigated and during the continuance of any actual breach or violation.
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Section 11.13 Specific Performance. Seller acknowledges that the Business
--------------------
and the Assets are unique and recognize and affirm that in the event of a breach
of this Agreement by Seller, money damages would be inadequate and Buyer would
have no adequate remedy at law. Accordingly, Seller agrees that Buyer shall
have the right, in addition to any other rights and remedies existing in its
favor, to enforce its rights and the obligations of Seller hereunder not only by
an action or actions for damages but also by an action or actions for specific
performance, injunction and/or other equitable relief, without posting any bond
or security.
Section 11.14 Remittances; Mail. All mail and other communications
-----------------
relating to the Assets, Assumed Liabilities or the Business received by Seller
at any time after the Closing Date shall be immediately turned over to Buyer by
Seller. All mail and other communications relating to the Excluded Assets or
the Excluded Liabilities received by Buyer at any time after the Closing Date
shall be immediately turned over to Seller by Buyer. Each party shall
cooperate with the other, and take such actions as the other party reasonably
requests, to assure that customers of the Business send their remittances
directly to the party which sold the goods or performed the services (goods sold
or services performed pre-Closing to Seller, goods sold or services performed
post-Closing to Buyer), and to assure that remittances from customers of the
Business which are improperly sent to one party are redirected and delivered to
the other in a timely manner.
Seller authorizes and empowers Buyer from and after the Closing Date to
receive and open all mail and other communications received by Buyer, unless on
its face such mail or other communication clearly relates only to the Excluded
Assets or the Excluded Liabilities, and to act with respect to such
communications in such manner as Buyer may elect if such communications relate
to the Business (other than the Excluded Assets or the Excluded Liabilities),
or, if such communications do not relate to the Business, to forward the same
promptly to Seller. Seller and Buyer shall promptly deliver to the other party
any cash, checks or other instruments of payment to which the other party is
entitled following the Closing Date. Seller agrees not to discourage any
individuals who are offered employment by Buyer from accepting employment with
Buyer. No provision in this Agreement shall create any third party beneficiary
or other right in any person for any reason, including, without limitation, in
respect of continued employment by Buyer or in respect of any benefits that may
-- --
be provided by Buyer.
Section 11.15 Warranty Claims. If at anytime after the Closing Date any
---------------
claim is made against Buyer or Seller arising out or resulting from a warranty
made by Seller prior to the Closing Date, Buyer may elect to satisfy such claim.
If such claim is satisfied in a manner and on a basis consistent with Buyer's
ordinary business practices, Buyer shall be entitled to receive proceeds, if
any, from any of Seller's insurance policies applicable to such claim as
reimbursement for the costs to Buyer of the satisfaction of such claim. If
there are no such insurance proceeds or to the extent any such insurance
proceeds are not sufficient to reimburse Buyer fully for the costs of the
satisfaction of such claim, Seller shall pay to Buyer an amount equal to all
such unreimbursed costs.
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IN WITNESS WHEREOF, the parties have executed this Agreement on the date
set forth above.
TRI-STAR AIRLINE SERVICES, INC.
a Texas corporation
/s/ Xxx Xxxxxxx
By:______________________________
President
Its:_____________________________
Attest:
/s/ XXXXXXX X. XXXXXX
By:______________________________
Secretary
Its:_____________________________
TRI-STAR ACQUISITION CORP.,
d/b/a SERVISAIR TEXAS, INC.
a Texas corporation
/s/ XXXXXXX XXXXXXX
By:______________________________
President/C.O.O.
Its:_____________________________
Attest:
By:______________________________
Its:_____________________________
25
Acknowledged and Agreed To (as to Articles 5 and 9 only):
AVIATION GROUP, INC.
a Texas corporation
/s/ XXX XXXXXXX
By:______________________________
President
Its:_____________________________
Attest:
/s/ XXXXXXX X. XXXXXX
By:______________________________
Secretary
Its:_____________________________
Acknowledged and Agreed To (as to Articles 6 and 9 only):
SERVISAIR USA, INC.
a Delaware corporation
/s/ XXXXXXX XXXXXXX
By:______________________________
President/C.O.O.
Its:_____________________________
Attest:
By:______________________________
Its:_____________________________
26
