10.122 Asset Purchase Agreement between Aero Services
International, Inc. (Seller) and Winner Aviation
Corporation (Purchaser) dated February 7, 1995
PURCHASE AND SALE
OF
THE YOUNGSTOWN, OHIO FBO FACILITY
OF
AERO SERVICES INTERNATIONAL, INC.
BETWEEN
AERO SERVICES INTERNATIONAL, INC.
("SELLER")
AND
WINNER AVIATION CORPORATION
("PURCHASER")
February 7, 1995
▇▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, Esquire
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
CLOSING INDEX
PURCHASE AND SALE OF
THE YOUNGSTOWN, OHIO FBO FACILITY OF
AERO SERVICES INTERNATIONAL, INC. BETWEEN
AERO SERVICES INTERNATIONAL, INC. ("SELLER")
AND WINNER AVIATION CORPORATION ("PURCHASER")
Closing: Effective February 7, 1995
Document
1. Asset Purchase Agreement
(with Schedules and Exhibits)
2. ▇▇▇▇ of Sale and Assignment
3. Certificate of Incumbency/Secretary's Certificate - Aero
Services International, Inc.
4. Written Consent in Lieu of a Meeting of the Board of
Directors of Aero Services International, Inc.
5. Officer's Certificate - Aero Services International, Inc.
6. Incumbency Certificate - Winner Aviation Corporation
7. Officer's Certificate - Winner Aviation Corporation
8. Secretary's Certificate as to Corporate Matters - Winner
Aviation Corporation
JFH-2/7/95-A
ASSET PURCHASE AGREEMENT
BETWEEN
AERO SERVICES INTERNATIONAL, INC.
("SELLER")
AND
WINNER AVIATION CORPORATION
("PURCHASER")
February 7, 1995
JFH-2/7/95-A
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT is made this 7th day of
February, 1995, between AERO SERVICES INTERNATIONAL, INC., a
Louisiana corporation, with offices at ▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ("Seller"), and WINNER AVIATION
CORPORATION, a Pennsylvania corporation, with offices at ▇▇ ▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ("Purchaser").
In consideration of the mutual covenants, agreements and
warranties herein contained, it is agreed that Purchaser shall
acquire from Seller, except as specifically set forth herein,
all of the Purchased Assets (as defined herein), free and
clear of any and all liens, claims, encumbrances, and
interests of any kind or nature and upon such other terms and
conditions are hereinafter set forth.
DEFINITIONS
The following terms shall have the meanings set forth
herein for the purposes of the transaction described in this
Agreement:
"Accounts Receivable" shall mean all service and repair
receivables, credit card, charge invoices, and other accounts
and notes receivable, other than Work in Process related to
the conduct of the Operations at the Facility.
"Agreement" shall mean this Asset Purchase Agreement,
including all Exhibits and Schedules hereto, as it may be
amended from time to time in accordance with its terms.
"Closing" shall mean the consummation of the transactions
contemplated herein, subject to the terms and conditions set
forth herein, in accordance with Article IX hereof.
"Closing Date" shall mean the date on or before February
10, 1995, on which the Closing occurs or is to occur.
"Contracts" shall mean and include (i) that certain
aviation fuel supply agreement between Seller and Exxon
Company, U.S.A., a copy of which is attached hereto as part of
Schedule 1.4 (the "Exxon Fuel Supply Contract"); (ii)
inventory purchase orders and repair orders, and all other
purchase orders for non-capital expenditures entered into in
the ordinary course of Seller's business; and (iii) any other
contracts and agreements entered into by Seller with the
written consent of Purchaser.
"Deposit" shall have the meaning given to it in Section
2.1.
"Excluded Assets" shall have the meaning given to it in
Section 1.3.
"Final Indemnity Payment Date" shall mean the date that is
forty-five (45) days after the Closing Date.
"GAAP" shall mean the U.S. generally accepted accounting
principles at the time in effect.
"Indemnity Fund" shall have the meaning given to it in
Section 2.2.
"Permits" shall have the meaning given to it in Section
1.2.
"Purchase Price" shall mean Four Hundred Thousand Dollars
($400,000.00) as paid and adjusted in accordance with Article
II and other provisions of this Agreement.
"Purchased Assets" shall have the meaning given to them in
Section 1.1.
"Shelf Inventory" shall mean all inventory except for
parts included in Work in Process.
"Work in Process" shall have the meaning given to it in
Section 2.1.
PURCHASE AND SALE
1.1 Purchased Assets. Subject to the terms and conditions
set forth in this Agreement, at the Closing Seller shall sell,
assign, transfer and deliver to Purchaser, and Purchaser shall
purchase, acquire and take assignment and delivery from
Seller, free and clear of any and all liens, claims,
encumbrances or interest, substantially all of the assets,
including work in process identified on Schedule 1.1h attached
hereto, and all information and records, (or copies thereof)
relating to such assets, including historical sales records
and service and repair manuals, owned by Seller primarily
located at and related to or used in conjunction with its
operations ("Operations" or "FBO") at the Youngstown-▇▇▇▇▇▇
Regional Airport, Youngstown, Ohio ("Facility"), except for
those assets specifically excluded in Section 1.3. All of the
assets sold, assigned, transferred and delivered to Purchaser
hereunder are referred to collectively herein as the
"Purchased Assets." The Purchased Assets include (but are not
limited to) the following: ▇▇▇▇▇▇▇ Tools (Schedule 1.1a);
Shop Tools and Equipment (Schedule 1.1b); Avionics Shop
(Schedule 1.1c); Engine Test Stand (Schedule 1.1d);
Furnishings and Fixtures (Schedule 1.1e); Inventory Parts
(Schedule 1.1f); Inventory Fuel (Schedule 1.1g); Work in
Process (Schedule 1.1h); and All Ground Equipment (Schedule
1.1i).
1.2 Assignment of Other Assets. Subject to the terms and
conditions set forth in this Agreement, Seller will assign and
transfer to Purchaser, free and clear of any and all liens,
claims, encumbrances or interests of any kind or nature,
effective as of the Closing Date, all of Seller's right, title
and interest in and to, and Purchaser will take assignment of,
the following, except as specifically excluded in Section 1.3
hereof (and all of the following shall be deemed included in
the term "Purchased Assets" as used herein): all of the
licenses, certificates, permits, approvals, registrations,
consents and other authorizations under any law, statute,
rule, regulation, order or ordinance applicable to the
Facility or otherwise required by any governmental authority
in connection with the business or operations of the Facility,
including (but not limited to) Seller's rights under (a) its
FAA Station Repair Certificate (JYID161K); (b) its lease
agreement with Facility; and (c) Exxon Fuel Agreement (the
"Permits").
1.3 Excluded Assets. The following assets of Seller
shall be retained by Seller and are not being sold or assigned
to Purchaser hereunder (all of the following are referred to
collectively as the ("Excluded Assets")): Avfuel above-ground
fuel tank; Computer equipment; Accounts Receivable; Avfuel
Leased Fuel Trucks; Seller's trade names and logos and cash on
hand.
1.3A Sales, Warranty and Repair Records. In accordance
with applicable requirements of the Federal Aviation
Administration, and other regulatory requirements, Seller and
Purchaser acknowledge and agree that Seller shall retain all
original records of sales,warranties and repairs made by
Seller at the FBO (collectively, the "Sales, Warranty and
Repair Records"). For a period of four (4) years from the
Closing Date, Seller shall, on reasonable notice, permit
Purchaser access to such Sales, Warranty and Repair Records,
and shall on Purchaser's reasonable request, at Purchaser's
cost and expense, provide Purchaser with copies of any such
records.
1.4 No Assumed Obligations.
(a) Except for the Contracts as defined hereinbefore, for
which Purchaser assumes all rights and responsibilities on the
Closing Date, Purchaser shall neither assume nor be liable for
any other obligations of Seller. Purchaser is not liable for
any obligations or liabilities of Seller of any nature
whatsoever, whether now existing or hereafter arising related
to the Purchased Assets or the Facility or to products or
services of Seller. Seller is responsible for environmental
matters relating to conditions in existence at or prior to the
Closing Date on or about the leasehold, and assets owned or
used by Seller in conducting its Operations at the Facility.
ARTICLE II
PURCHASE PRICE AND PAYMENT
2.1 Payment of Purchase Price. In consideration of the
sale, conveyance, assignment, transfer and delivery of the
Purchased Assets and the representations, covenants and
warranties contained herein:
(a) On the Closing Date, Purchaser shall pay to Seller,
in immediately available funds, the Purchase Price less the
amount of the Indemnity Fund. The Purchase Price shall be
computed as follows:
(1) Four Hundred Thousand Dollars ($400,000), plus
(2) Seller's costs of parts (wholesale cost) direct
labor and outside services allocable to Work in Process on the
Closing Date; plus
(3) The amount by which Seller's cost of Shelf
Inventory on the Closing Date exceeds $280,000; or less
(4) The amount by which Seller's costs of Shelf
Inventory on the Closing Date is less than $280,000; less
(5) Any payments received by Seller on account of
Work in Process.
(b) In computing the Purchase Price, Work in Process
includes only (i) work orders for which work was commenced
after February 3, 1995; (ii) the current ▇▇▇▇▇▇, ▇▇▇▇▇▇ and
▇▇▇▇▇▇, Shopvac, Southwest Limited, Corporate Jet and ▇▇▇▇▇▇▇
Chevrolet repair orders; and (iii) any other work orders for
which work has been commenced, but not completed prior to the
Closing Date.
(c) On or before the Final Indemnity Payment Date,
Purchaser shall pay to Seller all amounts of the Indemnity
Fund, other than those amounts (i) paid to Purchaser with the
consent of Seller; (ii) "In Dispute"; or (iii) ordered to be
paid to Purchaser in a final decision entered by an Arbitrator
under the provisions of Section 2.2 hereof.
2.2 Indemnity Fund.
(a) On the Closing Date, Purchaser shall retain an amount
equal to Twenty-Five Thousand Dollars ($25,000) of the
Purchase Price as the "Indemnity Fund."
(b) From and after the Closing Date until the Final
Indemnity Payment Date, payments from the Indemnity Fund may
be made as follows:
(i) With the consent of Seller, or pursuant to a
final decision of an Arbitrator, Purchaser shall be paid an
amount equal to Purchaser's actual damages caused by any
material misstatement of fact by Seller hereunder or in
connection with the transactions contemplated in this
Agreement or any material breach by Seller of any covenant or
promise contained herein.
(c) Purchaser shall give to Seller ten (10) days prior
written notice of the proposed payment or application of any
amount out of the Indemnity Fund in accordance with this
Section 2.2; such notice shall describe the amount, date and
purpose of such payment and shall identify the person to whom
such payment is proposed to be made. Seller shall have ten
(10) days from receipt of such notice to advise Purchaser in
writing of Seller's consent to such payment or of Seller's
intent to contest the amount and purpose of any payment or
application from the Indemnity Fund whereupon the proposed
payment shall be deemed "In Dispute." Any disputes relating
to amounts contested by Seller shall be resolved in accordance
with American Arbitration Association procedures. Purchaser
and Seller hereby agree that such determination shall be final
and binding without any right of reconsideration or appeal
whatsoever.
ARTICLE III
REPRESENTATIONS AD WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
3.1 Due Authorization; Consents; No Violations.
(a) (i) Seller has full power and authority to enter
into this Agreement and to consummate the transactions
contemplated hereby; and (ii) this Agreement has been duly
executed and delivered by Seller, and, assuming due
authorization, execution and delivery of this Agreement by
Purchaser, constitutes the valid and binding obligation of
Seller, enforceable in accordance with its terms.
(b) No consents or approvals of, or filings or
registrations by Seller with, any governmental authority or
any other person not a party to this Agreement are necessary
in connection with the execution and delivery of this
Agreement by Seller and the consummation by Seller of the
transactions contemplated hereby, except where the failure to
obtain such consents or approvals would not, either singly or
in the aggregate, have a material adverse effect on the
financial condition, business or operations of the Facility.
(c) Neither the execution and delivery of this Agreement
by Seller and the performance by Seller hereunder, not the
consummation of the transaction contemplated hereby, will
violate, conflict with, result in the breach of or accelerate
the performance required by any of the terms, conditions or
provisions of the articles of incorporation or bylaws of
Seller or any covenant, agreement or understanding to which
Seller is a party or any order, ruling, decree, judgment,
arbitration award or stipulation to which Seller is subject,
or constitute a default thereunder or result in the creation
or imposition of any lien, charge or encumbrance thereunder
upon any of the Purchased Assets, or allow any person or
entity to accelerate any debt secured by any Purchased Asset,
or allow any person or entity to interfere with Purchaser's
full use and enjoyment of any of the Purchased Assets.
3.2 Title to Properties. Seller has good and valid title
to the Purchased Assets, free and clear of claims and
encumbrances. Seller has not encumbered any of its assets.
3.3 Executory Contracts and Leases. There are no
executory contracts or unexpired leases relating to any of the
Purchased Assets, except for Work in Process and purchase
orders for inventory and repair orders entered into in the
ordinary course of business.
3.4 Disclosure. No representations or warranties made by
Seller in this Agreement and no statements made by Seller in
any certificate, schedule, exhibit or other writing delivered
by Seller or referred to in or pursuant to this Agreement
contain, or at the date of its delivery will contain, any
untrue statement of a material fact or omit or will omit any
statement of a material fact necessary to make complete,
accurate and not misleading every representation, warranty and
statement of Seller set forth in this Agreement or any such
certificate, schedule, exhibit or other writing.
3.5 Permits. The Permits are valid, transferable and
sufficient to operate lawfully the operations at the Facility
as previously operated by Seller.
3.6 Inventories. The inventories acquired by Purchaser
hereunder shall be in accordance with the physical inventory
to be undertaken by the parties jointly prior to Closing.
3.7 Litigation. There are no suits, actions or other
proceedings or investigations involving Seller or its
Operations, Facility or Purchased Assets pending or, to
Seller's best knowledge, threatened.
3.8 Compliance with Law. Seller is in compliance in all
material respects with all applicable federal, state and local
laws, rules, etc. relating to the Operations, Facility and
Purchased Assets.
3.9 Condition of the Property; Independent Investigation.
Prior to the date of this Agreement, Buyer has had complete
freedom of access to the FBO and all of Seller's books,
records, contracts, agreements related to the ownership,
operation and maintenance of the FBO, as well as to Seller's
personnel involved with the ownership, operation and mainte-
▇▇▇▇▇ of the FBO. During the period from the date of this
Agreement to the Closing or termination of this Agreement,
Buyer shall be given continued access to the FBO, the
Purchased Assets, the Contracts, and all books and records
relating thereto. In making the decision to enter into this
Agreement and to consummate the transactions contemplated
hereby, Buyer has relied, and may rely, only on Seller's
express representations and warranties as set forth in this
Agreement, and has not relied on any other representations,
warranties, or statements by Seller, its officers, directors
or employees or on the representations, warranties or
statements of any other person or entity. As to all other
matters not described herein, Buyer has relied and will rely
solely on the basis of its own independent investigation of
the FBO and the Purchased Assets, including, without
limitation, the physical condition of the FBO. Without
diminishing the scope of the express representations,
warranties and covenants of Seller in this Agreement and
without affecting or impairing Buyer's right to rely thereon,
BUYER ACKNOWLEDGES THAT SELLER HAS NOT MADE, AND SELLER HEREBY
EXPRESSLY DISCLAIMS AND NEGATES ANY OTHER REPRESENTATION OR
WARRANTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING
TO THE PHYSICAL CONDITION OF THE PROPERTY (INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE) AND FURTHER, BUYER
ACCEPTS ALL OF THE PURCHASED ASSETS IN THEIR "AS IS, WHERE IS"
CONDITION.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller as follows:
4.1 Due Incorporation. Purchaser is a corporation duly
organized, validly existing and in good standing under the
laws of the Commonwealth of Pennsylvania and has the requisite
corporate power and authority to carry on its business as now
being conducted. Purchaser is in good standing as a foreign
corporation authorized to do business in each jurisdiction
where the nature of the assets owned by Purchaser in such
state or the conduct of the business by Purchaser in such
state or the conduct of the business by Purchaser therein
would require Purchaser to be so qualified.
4.2 Due Authorization; Consents; no Violations.
(a) (i) Purchaser has full power and authority to enter
into this Agreement and to consummate the transactions
contemplated hereby; and (ii) this Agreement has been duly
executed and delivered by Purchaser, and, assuming due
authorization, execution and delivery of this Agreement by
Seller, constitutes the valid and binding obligation of
Purchaser, enforceable in accordance with its terms.
(b) No consents or approvals of, or filings or
registrations by Purchaser with, any Governmental Authority or
any other person not a party to his Agreement are necessary in
connection with the execution and delivery of this Agreement
by Purchaser and the consummation by Purchaser of the
transactions contemplated hereby, except where the failure to
obtain such consents or approvals would not, either singly or
in the aggregate, have a material adverse effect on the
financial condition, business or operations of Purchaser.
(c) Neither the execution and delivery of this Agreement
by Purchaser and the performance by Purchaser hereunder, nor
the consummation of the transactions contemplated hereby, will
violate, conflict with, result in the breach of or accelerate
the performance required by any of the terms, conditions or
provisions of the articles of incorporation or bylaws of
Purchaser or any covenant, agreement or understanding to which
Purchaser is a party or any order, ruling, decree, judgment,
arbitration award or stipulation to which Purchaser is
subject, or constitute a default thereunder or allow any
person or entity to accelerate any debt.
4.3 Financing. On the date hereof, Purchaser will have
available funds or financing facilities to purchase the
Purchased Assets and to consummate the transactions
contemplated by this Agreement and on the Closing Date the
Purchaser will have sufficient funds available to consummate
the transactions contemplated hereby.
4.4 Assignee. In the event Purchaser assigns this
Agreement in accordance with Section 11.8, this Article IV
shall apply to such assignee.
ARTICLE V
COVENANTS OF SELLER
Seller agrees that, except as contemplated by this
Agreement or as agreed in writing by Purchaser, from the date
hereof to the Closing Date or the date of termination of this
Agreement:
5.1 Best Efforts. Subject to the terms and conditions of
this Agreement, Seller shall cooperate with Purchaser and use
its best efforts to fulfill its obligations under the terms of
this Agreement and to facilitate the consummation of the
transactions contemplated hereby.
5.2 Access to Facility and Information. Seller shall
afford Purchaser and Purchaser's representative reasonable
access during normal business hours, without unreasonable
interference with Seller's business operations, to the
Facility and to all of the facilities, properties and books
and records of Seller relating to its operations at the
Facility and the Purchased Assets and shall make Seller's
officers and employees available to Purchaser as Purchaser
shall from time to time reasonably request. Purchaser and its
representatives shall be furnished with such additional
information concerning Seller relating to its operations at
the Facility and the Purchased Assets as Purchaser shall
reasonably request. Subject to the requirements of law,
Purchaser shall hold in confidence all non-public information
and if this Agreement is terminated, shall deliver to Seller
all documents, work papers and other material (including
copies) obtained by Purchaser in connection herewith, whether
obtained before or after the execution hereof.
5.3 Ordinary Course. Seller (i) shall maintain its
Operations at the Facility substantially in the manner in
which it is presently being maintained and shall not take, or
permit to be taken, any action except in the usual and
ordinary course of business consistent with recent past
practice (except as required to consummate the transactions
contemplated hereby or as otherwise permitted by Purchaser)
and (ii) shall not enter into, modify, renew or terminate any
agreement, arrangement or transaction, except agreements,
arrangements or transactions in the usual and ordinary course
of business consistent with recent past practice.
5.4 Books and Records. Seller shall maintain its books,
accounts and records relating to its Operations at the
Facility and the Purchased Assets in the usual, regular and
ordinary manner, and on a basis consistent with past practice.
5.5 Preservation of Purchase Assets. Seller shall not
sell or dispose of, or agree to sell or dispose of, any of the
Purchased Assets, or suffer or permit the creation of any
mortgage, pledge, lien, security interest, claim or other
encumbrance (except for any liens for taxes not yet due and
payable or being contested in good faith or for any judgment
or other liens, in each case for which reserves required by
GAAP have been provided) and Seller shall preserve intact the
Purchased Assets and not commingle any Excluded Assets with
any Purchased Assets.
5.6 Maintenance of Insurance. Seller shall, consistent
with past practice, maintain insurance applicable to its
Operations at the Facility in full force and effect,
substantially comparable in amount, scope and coverage to that
in effect on the date of this Agreement.
5.7 No Default. Seller shall not do any act or omit to
do any act which will cause a material breach of any contract,
commitment or obligation which would have a material adverse
effect on the condition, business or Operations of the
Facility.
5.8 Non-Disclosure concerning Purchaser. Seller will not
disclose to any potential competitive bidder confidential
information concerning Purchaser gained by Seller in
connection with Purchaser's offer to purchase the Purchased
Assets.
5.9 Consents and Approvals. Seller shall cooperate with
Purchaser in determining whether any consents or approvals by
third parties are necessary or appropriate in order to
consummate the transactions contemplated hereby and shall use
all reasonable commercial efforts to obtain all such consents
and approvals. Seller shall cooperate with Purchase in making
all filings, applications, statements and reports to any
governmental authorities which may be required to be made
prior to the Closing Date pursuant to any applicable statue,
rule or regulations in connection with the Agreement and the
transactions contemplated hereby.
ARTICLE VI
COVENANTS OF PURCHASER
Purchase agrees that from the date hereof to the Closing
Date or the date of termination of this Agreement:
6.1 Best Efforts. Subject to the terms and conditions of
this Agreement, Purchaser shall cooperate with Seller and use
its best efforts to fulfill its obligations under the terms of
this Agreement, and to facilitate the consummation of the
transactions contemplated hereby.
6.2 Consents and Approvals. Purchaser shall cooperate
with Seller in determining whether any other consents or
approvals by third parties are necessary or appropriate in
order to consummate the transactions contemplated hereby and
shall use all commercially reasonable efforts to obtain all
such consents and approvals. Purchaser shall cooperate with
Seller in making any filings, applications, statements and
reports to any governmental authorities which may be required
to be made prior to the Closing Date pursuant to any
applicable statue, rule or regulation in connection with this
Agreement and the transactions contemplated hereby.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
7.1 Conditions Precedent. The obligations of Purchaser
under this Agreement are subject to satisfaction by Seller or
waiver by Purchaser in writing of the following conditions
precedent on or before the Closing Date and upon the failure
timely to satisfy such conditions, Purchaser may terminate
this Agreement:
(a) Accuracy of Representations and Warranties. The
representations and warranties of Seller contained in this
Agreement shall be true and correct in all material respects
on and as of the Closing Date with the same force and effect
as though made on and as of the Closing Date (except for such
changes as are contemplated or permitted by this Agreement);
(b) Compliance with Agreements and Covenants; Schedules.
Seller shall, in all material respects, have performed all
obligations and agreements and complied with all covenants
contained in this Agreement to be performed and complied with
by it on or prior to the Closing Date.
(c) Actions or Proceedings. No court order shall have
been entered and remain in effect in any action or proceeding
which enjoins or prohibits the consummation of the
transactions contemplated by this Agreement.
(d) Licenses, Permits, Authorizations. Purchaser shall
have received all material licenses, permits, certificates,
agreements and authorizations required for it to acquire and
operate the Purchased Assets;
(e) No Material Adverse Change. No material adverse
change in the Purchased Assets shall have occurred from the
date of this Agreement until the Closing;
(f) Condition of Equipment. Purchaser shall have
satisfied itself that the Purchased Assets are in working
order and are usable, generally serviceable and complete and
intact and that all applicable ancillary equipment, tools,
spare parts, manuals and technical service bulletins,
operating systems used in connection therewith, wherever
located, have been delivered to Purchaser;
ARTICLE VIII
CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER
The obligations of Seller under this Agreement are subject
to the satisfaction by Purchaser or waiver by Seller in
writing of the following conditions precedent on or before the
Closing Date and upon the failure timely to satisfy such
conditions, Seller may terminate this Agreement:
8.1 Compliance with Agreements and Covenants. Purchaser
shall, in all material respects, have performed all
obligations and agreements and complied with all covenants
contained in this Agreement to be performed and complied with
by it on or prior to the Closing Date.
8.2 Actions or Proceedings. No court order shall have
been entered and remain in effect in any action or proceeding
which enjoins or prohibits the consummation of the
transactions contemplated by this Agreement. (Seller agrees
to use its good efforts to have such action or proceeding
dismissed or such order removed.)
ARTICLE IX
CLOSING
9.1 Closing. Subject to the terms and conditions set
forth herein, the Closing shall take place at the offices of
Purchaser, ▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or such other
place as may be agreed upon, on or before the Closing Date,
time being of the essence.
9.2 Deliveries by Seller. At the Closing, Seller will
deliver to Purchaser the following:
(a) A ▇▇▇▇ of Sale in the form set forth in Exhibit A;
(b) Evidence reasonably satisfactory to Purchaser of the
satisfaction of the conditions to Closing set forth in Article
VII;
(c) All Permits, certificates and other licenses referred
to in this Agreement which are in accordance with applicable
laws, regulations, rules and orders are assignable by Seller;
(d) Possession of the Purchased Assets as at the
Facility.
9.3 Deliveries by Purchaser. At the Closing, Purchaser
will deliver to Seller the portion of the Purchase Price to be
paid at the Closing pursuant to Section 2.1.
ARTICLE X
TERMINATION
10.1 Termination. This Agreement may be terminated by
written notice at any time on or prior to the Closing Date (a)
with the mutual consent of Seller and Purchaser; (b) by Seller
or Purchaser provided that the party electing so to terminate
this Agreement shall not have breached in any material respect
its covenants and agreements set forth in this Agreement; (c)
by Purchaser pursuant to Article VII hereof; or (d) by Seller
pursuant to Article VIII hereof. If the Closing does not take
place on or before the Closing Date, this Agreement shall be
void.
10.2 Effect of Termination. In the event this Agreement
is terminated in accordance with Section 10.1, neither Seller
or Purchaser shall have any further obligations under this
Agreement except that the indemnification provisions of this
Agreement and the obligations set forth in of Section 5.2
shall continue in full force and effect thereafter and any
Permits or other property of Seller therefore transferred to
Purchaser shall be retransferred or returned to Seller or its
nominee at Seller's expense.
ARTICLE XI
MISCELLANEOUS
11.1 Expenses. Except as otherwise provided by this
Agreement, each party shall bear its own fees, costs and
expenses incurred in connection with Purchaser's acquisition,
and Seller's sale. of the Purchased Assets, including, but not
limited to fees of attorneys, consultants and accountants.
11.2 Amendment; Waiver. This Agreement may be amended,
modified or supplemented but only in writing signed by all of
the parties hereto. The failure of a party hereto at any time
or times to require performance of any provision hereof shall
in no manner affect its right at a later time to enforce the
same. No waiver by a party of any condition or of any breach
of any term, covenant, representation or warranty contained in
this Agreement shall be effective unless in writing, and no
waiver in any one or more instances shall be deemed to be a
further or continuing waiver of any such condition or breach
in other instances or a waiver of any other condition or
breach of any other term, covenant, representation or
warranty.
11.3 Survival. All representations and warranties of the
parties contained in this Agreement or in any other
certificate or other writing delivered or to be delivered
pursuant to this Agreement and in connection with the Closing
hereunder shall terminate on the Closing Date. All
indemnities of the parties contained in this Agreement shall
survive the Closing.
11.4 Notices. Any notice, request, instruction or other
document to be given hereunder by a party hereto shall be in
writing and shall be deemed to have been given, (i) when
received if delivered by hand, (ii) on the date of
transmission if sent by telex, telecopy or other wire
transmission or (iii) three days after being deposited in the
U.S. mail, certified or registered mail, postage prepaid:
(a) If to Seller, addressed as follows:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
AERO SERVICES INTERNATIONAL, INC.
Midway Airport
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Eckert, Seamans, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
One South Market Square Building
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
(b) If to Purchaser addressed as follows:
▇▇▇▇▇ ▇. Winner, Jr., President
WINNER AVIATION CORPORATION
▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
with a copy to ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., General Counsel
Fax: ▇▇▇-▇▇▇-▇▇▇▇
or to such other individual or address as party hereto may
designate for itself by notice given as herein provided.
11.5 Counterparts. This Agreement may be executed
simultaneously in counterparts, each of which shall be deemed
an original, but all of which together shall constitute one
and the same instrument.
11.6 Headings. The headings preceding the text of
Articles, Sections, Subsections and Schedules of this
Agreement are for convenience only and shall not be deemed
part of this Agreement, nor shall they affect its meaning,
construction or effect.
11.7 Applicable Law. This Agreement shall be governed by
and construed and enforced in accordance with the internal
laws of the Commonwealth of Pennsylvania, without giving
effect to the principles of conflicts of law thereof. Any
arbitration proceedings provided for in this Agreement shall
be conducted in Pittsburgh, Pennsylvania. The forum for any
court action between the parties relating to this Agreement
shall be in the Federal District Court for Western District of
Pennsylvania.
11.8 Assignment. This Agreement may not be assigned by
any party hereto without the prior written consent of the
other party except that Purchaser may, on or before the
Closing Date, may assign all of its rights and obligations
under this Agreement to an affiliate of Purchaser where upon
such assignee shall be deemed the "Purchaser" hereunder and
Winner Aviation Corporation will thereafter have no rights or
obligations under this Agreement, except that Winner Aviation
Corporation shall remain liable for repayment of the Indemnity
Fund.
11.9 Third-Party Beneficiaries. This Agreement is solely
for the benefit of the parties hereto and, other than as
specified herein, no provision of this Agreement shall be
deemed to confer upon third parties any remedy, claim,
liability, reimbursement, claim of action or other right in
excess of those existing without reference to this Agreement.
11.10 Other Instruments. Upon the reasonable request of
Purchaser, Seller will on and after the Closing Date, execute
and deliver to Purchaser such other documents, releases,
assignments and other instruments and take such other steps as
may be reasonably required to effectuate completely the
transfer and assignment to Purchaser of, and to vest fully in
Purchaser title to, each of the Purchased Assets.
11.11 Entire Understanding. This Agreement sets forth
the entire agreement and understanding of the parties hereto
in respect to the transactions contemplated hereby and
supersedes all prior agreements, arrangements and
understandings relating to the subject matter hereof and is
not intended to confer upon any other person any rights or
remedies hereunder, other than as expressly provided herein.
The representations and warranties contained in this Agreement
are the sole representations and warranties made by the
parties hereto with respect to the transactions contemplated
hereby and supersede any and all prior disclosures or other
information, oral or written, provided in connection with the
negotiation of this Agreement or otherwise. There have been
no representations or statements, oral or written, that have
been relied on by any party hereto, except those expressly set
forth in this Agreement.
11.12 Waiver of Jury Trial. Each of Seller and Purchaser
irrevocably waives trial by jury in any action or proceeding
with respect to this Agreement.
11.13 Indemnification. Seller shall indemnify Purchaser
and save it harmless from, and against, and pay any damages,
losses, obligations, liabilities, claims, costs and expenses
incident to any obligations or liabilities or any action,
claim or proceeding arising out of Seller's conduct of the
Operations before Closing Date*, Purchaser shall indemnify
Seller and save it harmless from, and against, and pay any
damages, losses, obligations liabilities, claims, costs and
expenses incident to any obligations or liabilities on any
action, claim or proceeding arising out of Purchaser's conduct
of the Operations after Closing Date.
IN WITNESS WHEREOF, intending to be legally bound hereby,
the parties hereto have caused this Agreement to be executed
and delivered by their respective duly authorized
representatives on the date first above written.
AERO SERVICES INTERNATIONAL,
INC.
BY
R. ▇▇▇ ▇▇▇▇▇
Chairman and CEO
Attest:
Secretary
WINNER AVIATION CORPORATION
BY
▇▇▇▇▇ ▇. Winner, Jr.,
President
Attest:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇.
Secretary
Page 15a
Addendum to 11.13*
*or Seller's non-payment of the wholesale cost of any item
reflected in Inventory Parts as set forth on Schedule 1.1f.
In the event that Seller fails to pay the wholesale cost of
any item set forth on Schedule 1.1f within twenty (20) days
after receiving written notice of such non-payment from
Purchaser, then in lieu of any other indemnity payments to be
made hereunder resulting from such non-payment, Purchaser
shall be entitled to receive liquidated damages from Seller in
concurrent equal to three times (3X) the wholesale cost of
such unpaid Inventory Part(s).
WINNER AVIATION CORPORATION
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice President
Attest:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇., Secretary
AERO SERVICES INTERNATIONAL,
INC.
R. ▇▇▇ ▇▇▇▇▇, Chairman and CEO
Attest:
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Secretary