Exhibit 10.1
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement ("Agreement") is made and entered into as of
this 31st day of March, 2005, at Scottsdale, Arizona, by and between Central
Plains Aviation, Inc., a Kansas corporation with offices at 0000 Xxxxx Xxx
Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxx 00000 ("Seller"), and F B O Air - Garden City,
Inc., a Kansas corporation with offices at 0000 Xxxx Xxxxxxx Xxx, Xxxxxxxxxx,
Xxxxxxx 00000 ("Buyer"); and Xxx X. Xxxxxx, an individual and President of
Seller ("Xxxxxx").
RECITALS
A. Seller is engaged in the business of a fixed base operator at Garden
City Regional Airport (the "Business");
B. Buyer and Seller are parties to that certain Offer to Purchase dated
January 19, 2004 ("Offer to Purchase");
C. Pursuant to the Offer to Purchase, Buyer desires to purchase certain
assets, and none of the liabilities, of Seller that are used in connection with
the Business at the price and under the terms and conditions set forth herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
ARTICLE 1
PURCHASED ASSETS; TRANSFER OF PURCHASED ASSETS
1.1 Purchased Assets. Subject to the terms and conditions set forth in the
recitals set forth above, which are incorporated herein by reference, and this
Agreement, Seller shall sell, assign, transfer and deliver to Buyer at the
Closing (defined below) and Buyer shall purchase, for the Purchase Price set
forth in ARTICLE 2 hereof, all of the assets and business of the Business
specifically set forth on Schedule 1.1 hereto, excluding the Excluded Assets
defined in Section 1.6, all of which are hereinafter called the "Assets,"
including, without limitation, the following specific assets described in this
Section 1.1:
(a) All inventories, including JetA and Avgas fuel inventories,
finished goods, work-in-progress and raw materials, supplies and parts owned by
Seller pertaining to the Business (the "Inventory") as of the close of business
on the date immediately prior to the Closing Date including, without limitation,
the Inventory set forth on Schedule 1.1(a).
(b) All rights and interests of Seller in and to all contracts,
leases of personal property, purchase orders, orders from customers, supply
agreements, distribution agreements, independent sales representative
agreements, license agreements, and other agreements entered into pertaining to
the Business or the Assets in effect on the Closing Date, excluding any
amendments, revisions, changes or new orders under such agreements (the
"Contracts"). All Contracts that are in effect on the date hereof, are set forth
on Schedule 1.1(b).
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Exhibit 10.1
(c) All rights of Seller under or pursuant to all warranties,
representations and guaranties made by suppliers in connection with products or
services furnished to the Business, or otherwise pertaining to the Business of
affecting the Assets.
(d) All of Seller's customer lists, together with all designs,
notes, and other intangibles which are used in the Business; and all records and
files (including computer records and files) and papers useful in operating the
Business or relating to the Assets, including, but not limited to, manuals and
data, sales, advertising materials, sales and purchase correspondence, shipping
records and employment records for current employees of Seller whom Buyer wish
to retain.
(e) All federal, foreign, state, provincial, municipal, local or
other governmental consents, certifications, licenses, permits, registrations,
grants and other authorizations that are necessary to permit Seller to conduct
the Business as presently conducted (collectively, the "Authorizations" and
individually, an "Authorization"). All Authorizations in effect as of the date
of this Agreement are set forth on Schedule 1.1(e).
(f) All fuel trucks, aircraft tows, utility carts, portable
generators, equipment, heavy equipment, machinery and vehicles of Seller used in
connection with the Business as of the Closing Date (collectively, the
"Equipment"). All of such assets as of the date of this Agreement are set forth
on Schedule 1.1(f).
1.2 Transfer of Title to the Assets. Seller's sale, assignment,
conveyance, transfer, and delivery of the Assets to Buyer shall be made at the
Closing by appropriate instruments of transfer as shall be reasonably requested
by Buyer or otherwise sufficient to vest in Buyer, as of the Closing Date, good
and marketable title to the Assets that are owned, as of the Closing Date by
Seller, and a valid and assignable leasehold interest in the Assets that are
leased by Seller as of the Closing Date, in each case free and clear of any
liens, charges and encumbrances. Such instruments of assignment, conveyance, and
transfer shall include, without limitation, a xxxx of sale transferring title to
tangible assets in the form of Exhibit A hereto (the "Xxxx of Sale") and
anything else reasonably contemplated by this Agreement to be delivered in order
to transfer possession and enjoyment of the Assets to Buyer. Risk of loss of the
Assets shall pass from Seller to Buyer at Closing.
1.3 Non-Assignable Assets. To the extent that any of the Assets to be
assigned to Buyer hereunder are not assignable without the consent of another
party, this Agreement shall not constitute an assignment or an attempted
assignment if such assignment or attempted assignment would constitute a breach
of any contract, right or commitment. Seller agree to use its best efforts to
obtain the consent of each other party to any such contract, right or commitment
to the assignment thereof to Buyer in all cases in which such consent is
required for assignment or transfer. If such consent is not obtained at or prior
to the Closing and Buyer shall have waived the conditions in Section 5.2(b) with
respect thereto, Seller agree to cooperate with Buyer in seeking (i) such
consent after the Closing Date and (ii) any reasonable arrangements designed to
provide for Buyer the benefits accruing under any such contract, right or
commitment, including enforcement at the cost and for the account of Buyer of
any and all rights of Seller against each other party thereto arising out of the
cancellation by such other party or otherwise. If and to the extent that such
arrangement cannot be made, Buyer shall have no obligation with respect to any
such contract, right or commitment and each such asset shall thereafter be
deemed an Excluded Asset (as defined below).
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Exhibit 10.1
1.4 Further Assurances. At any time and from time to time after the
Closing, at Buyer's reasonable request and without further consideration, Seller
shall execute and deliver such instruments of sale, transfer, conveyance,
assignment and confirmation, and take such other action, as Buyer may reasonably
request to more effectively transfer, convey and assign to Buyer, and to confirm
Buyer's title to, the Assets, to put Buyer in actual possession and operating
control thereof, to assist Buyer in exercising all rights with respect thereto
and to carry out the purpose and intent of this Agreement.
1.5 Non-Assumption of Liabilities. Buyer shall not assume and shall under
no circumstances be responsible for any liabilities or obligations of Seller
(whether personal or corporate) including, without limitation, any liabilities
or obligations arising out of the Assets and/or operation of the Business,
regardless of amount, character or description, or whether accrued, contingent
or otherwise.
1.6 Excluded Assets. Excluded Assets means (i) the aircraft set forth on
Schedule 1.6 (collectively the "Aircraft"); (ii) that certain 2002 Chevrolet
Tahoe bearing Kansas vehicle registration 0XXXX00X0XX000000, and that certain
2001 Chevrolet Silverado bearing Kansas vehicle registration 0XXXX00X00X000000
(collectively the "Retained Vehicles"); (iii) any Non-assignable assets
described in Section 1.3; (iv) any assets of Seller not used in connection with
the Business as more fully set forth on Schedule 1.6 ("Unrelated Assets"); and
(v) any real property owned by Seller or any or real property leases leased by
Seller and not set forth on Schedule 1.1(b).
ARTICLE 2
PURCHASE PRICE; ALLOCATION OF PURCHASE PRICE
2.1 Purchase Price. The total purchase price for the Assets shall be Six
Hundred Seventy Five Thousand Dollars ($675,000) ("Purchase Price").
2.2 Payment of Purchase Price. The Purchase Price shall be paid by Buyer
to Seller as follows:
(a) Cash at Closing. Four Hundred Thirty Five Thousand Dollars
($435,000), by wire transfer at Closing.
(b) Promissory Note. Two Hundred Forty Thousand Dollars ($240,000)
shall be paid by Buyer to Seller under a promissory note having a term of
eighteen (18) months and bearing an interest of five percent (5%) per annum in
the form attached hereto as Exhibit B ("Promissory Note"). The Promissory Note
shall be payable on a quarterly basis to Seller.
2.3 Allocation of Purchase Price. The Purchase Price shall be allocated
among the Assets as set forth on Schedule 2.3, which Buyer shall deliver to
Seller at least five business days prior to Closing.
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Exhibit 10.1
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of Seller and Xxxxxx. As a material
inducement to Buyer to enter into this Agreement and to consummate the
transactions contemplated hereby, each of Seller and Xxxxxx represents and
warrants to Buyer that the statements set forth in this Section 3.1 are correct
and complete as of the date of this Agreement and will be correct and complete
as of the Closing Date (as though made then and as though the Closing Date were
substituted for the date of this Agreement throughout this Section 3.1). Certain
exceptions to such representations and warranties are set forth on Schedule 3.1
("Schedule of Exceptions") attached hereto and incorporated herein, which shall
be arranged in sections corresponding to the subsections of this Section 3.1.
(a) Organization and Qualification. Seller is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Kansas and has full corporate power and corporate authority to own or lease its
properties and to conduct its business in the manner and in the places where
such properties are owned or leased or as such business is currently conducted.
The copies of Seller's Articles of Incorporation, as amended to date
(hereinafter referred to as its "Articles"), certified by the Secretary of State
of the State of Kansas, and of Seller's Bylaws, as amended to date (hereinafter
referred to as its "Bylaws"), certified by Seller's Secretary, are complete and
correct and no amendments thereto have been filed or are pending. Seller is and
has been at all times in compliance with its Articles and Bylaws. Seller is duly
qualified or licensed to conduct business as a foreign corporation in, and is in
good standing in, each jurisdiction in which the nature of the business as
conducted by Seller or the character and nature of any of the Assets makes such
qualification necessary.
(b) Authority. Seller has full right, power and authority to enter
into this Agreement and each agreement, document and instrument to be executed
and delivered by Seller pursuant to this Agreement (the "Related Agreements")
and to carry out the transactions contemplated hereby and thereby (the
"Transactions"). The execution, delivery and performance of this Agreement and
the Related Agreements by Seller has been duly and validly authorized and
approved by all necessary action on the part of Seller, and no other action on
the part of Seller is required in connection therewith. This Agreement and each
Related Agreement constitutes, or when executed and delivered will constitute,
the legal, valid and binding obligation of Seller, each enforceable in
accordance with its respective terms. The execution, delivery and performance by
Seller of this Agreement and each Related Agreement:
(i) does not and will not violate any foreign, federal, state,
local or other laws, regulations or ordinances applicable to Seller;
(ii) does not or will not violate any term or provision of the
Articles or Bylaws of Seller; or
(iii) except as set forth on Schedule 3.1(b)(iii) does not and
will not result in a breach of, constitute or result in a default under,
accelerate any obligation under or give rise to a right of termination of, any
indenture, loan or credit agreement, or any other agreement, contract,
instrument, mortgage, lien, lease, permit, authorization, order, writ, judgment,
injunction, decree, determination or arbitration award to which Seller is a
party or by which Seller or any property of Seller is bound or affected, or
result in the creation or imposition of any mortgage, pledge, lien, security
interest or other charge or encumbrance on any of the Assets. Except as set
forth on Schedule 3.1(b)(iii), no consent or waiver by, approval of, or
designation, declaration or filing with, any Person is required in connection
with the execution, delivery and performance by Seller of this Agreement and
each Related Agreement. "Person" shall mean an individual, a partnership, a
corporation, an association, a joint stock company, a trust, a joint venture, an
unincorporated organization, a governmental authority or entity or any
department, agency or political subdivision thereof.
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Exhibit 10.1
(c) Financial Statements. The audited, or unaudited if audited
unavailable, balance sheets and statements of income of Seller for the fiscal
years ended December 31, 2004, December 31, 2003 and December 31, 2002 have been
previously provided to Buyer (such financial statements being referred to
collectively herein as the "Financial Statements"). All of the Financial
Statements (including the notes thereto) have been prepared in accordance with
generally accepted accounting principles applied consistently during the periods
covered thereby, are complete and correct, present fairly the financial
condition of Seller and the results of its operations as of the dates of such
statements and for the periods covered thereby, and are consistent with the
books and records of Seller.
(d) Title to Assets; Liens; Condition of Assets. Except as set forth
on Schedule 3.1(d), Seller has good and marketable title to the Assets that are
owned and a valid and assignable leasehold interest in the Assets that are
leased. The Assets are free and clear of all mortgages, liens, security
interests, pledges, charges and other encumbrances of every nature whatsoever,
except for liens for current taxes not yet due and payable or being contested in
good faith by appropriate proceedings, and such imperfections of title,
easements and encumbrances as do not materially detract from the value of the
properties subject thereto or affected thereby or otherwise do not materially
interfere with their present or future use in a manner consistent with present
practices of the Business. The Assets constitute all of the material assets used
to conduct the Business. All of the leasehold improvements included in the
Assets are in good repair, have been well maintained, conform with all
applicable ordinances, regulations and zoning, environmental and other laws,
regulations and ordinances and do not encroach on property of others. All
machinery and equipment is in good working order subject to ordinary wear and
tear.
(e) Taxes
(i) Definitions. As used herein, "IRC" means the Internal
Revenue Code of 1986, as amended and interpreted by treasury regulations; "Tax
Return" means any return, declaration, report, claim for refund, or information
return or statement relating to Taxes, including any schedule or attachment
thereto, and including any amendment thereof, and "Taxes means any federal,
state, local, or foreign income, gross receipts, license, payroll, employment,
excise, severance, stamp, occupation, premium, windfall profits, environmental,
customs duties, capital stock, franchise, profits, withholding, social security
(or similar), unemployment, disability, real property, personal property, sales,
use, transfer, registration, value added, alternative or add-on minimum,
estimated, or other tax of any kind whatsoever, including any interest, penalty,
or addition thereto, whether disputed or not.
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Exhibit 10.1
(ii) Returns and Payments. Seller has filed all Tax Returns
that it was required to file. All such Tax Returns are correct and complete in
all respects. All Taxes owed by Seller (whether or not shown on any Tax Return)
have been paid. Seller currently is not the beneficiary of any extension of time
within which to file any Tax Return, or to the extent due, reserved for on the
Financial Statements. No claim has ever been made by an authority in a
jurisdiction where Seller does not file Tax Returns that it is or may be subject
to taxation by that jurisdiction. There are no liens, encumbrances, or charges
against any of the assets of Seller that arose in connection with any failure
(or alleged failure) to pay any Tax.
(iii) Withholding Taxes. Seller has withheld and paid all
Taxes required to have been withheld and paid in connection with amounts paid or
owing to any employee, independent contractor, creditor, shareholder, or other
third party.
(iv) Tax Liabilities. Neither Seller's nor any of Seller's
officers, directors, or employees responsible for Tax matters has knowledge of
any facts that would lead them to expect any authority to assess any additional
Taxes for any period for which Tax Returns have been filed. There is no dispute
or claim concerning any Tax liability of Seller either claimed or raised by any
authority in writing or as to which any of Seller or any of Seller's, officers,
directors, or employees responsible for Tax matters has knowledge based upon
personal contact with any agent of such authority. Schedule 3.1(e) lists all Tax
Returns filed for taxable periods ended on or after December 31, 2001, indicates
those Tax Returns that have been audited and indicates those Tax Returns that
currently are the subject of an audit. Seller has disclosed on its federal
income Tax Returns all positions taken therein that could give rise to a
substantial understatement of federal income Tax within the meaning of IRC
Section 6662.
(v) Statute of Limitations. Seller has not waived any statute
of limitations in respect of Taxes or agreed to any extension of time with
respect to a Tax assessment or deficiency.
(f) Absence of Undisclosed Liabilities. Except as set forth on
Schedule 3.1(f), Seller had and has no indebtedness, liabilities or obligations
of any nature or kind, whether accrued, absolute, contingent or otherwise
asserted or unasserted, known or unknown and whether due or to become due
(including, without limitation, potential liabilities relating to products or
services provided by Seller or the conduct of the Business prior to the
Effective Date, regardless of whether claims in respect thereof had been
asserted as of such date).
(g) Inventory. Except to the extent of reserves set forth in the
Financial Statements, all Inventory is of a quality and quantity saleable in the
ordinary course of the Business at prevailing market prices and is adequate in
amount, consistent with past practices of the Business, to continue operations
without creating backlogs, in excess of customary levels for the Business.
(h) Absence of Certain Changes. Since the December 31, 2003, there
has not been:
(i) any operation of the Business out of the ordinary course
of business or any change in the financial condition, properties, assets,
liabilities, business, prospects or operations of the Business that, by itself
or in conjunction with all other such changes, has or is likely to have a
materially adverse effect on the Business;
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Exhibit 10.1
(ii) any purchase, sale, license or other disposition, or any
agreement or other arrangement for the purchase, sale, license or other
disposition, of any part of Seller's properties or assets (including any
patents, trademarks and copyrights) included in the Assets, other than purchases
for and sales from inventory in the ordinary course of business;
(iii) any damage, destruction or loss, whether or not covered
by insurance, adversely affecting Seller's properties or assets included in the
Assets or the Business in excess of $5,000 per single occurrence;
(iv) any change with respect to Seller's officers, management
or supervisory personnel employed in the Business, other than changes in
supervisory personnel occurring in the ordinary course of business;
(v) any payment or discharge of a lien or liability of Seller
that is not shown on the Financial Statements incurred in the ordinary course of
business thereafter;
(vi) any obligation or liability incurred by Seller to any
bank, officer, director, employee, other than in the ordinary course of
business, or any loans or advances made by Seller to any officer, director,
employee, except for normal compensation and expense allowances payable to
officers or employees;
(vii) any change in the accounting methods or practices
followed by Seller or any change in depreciation or amortization policies or
rates theretofore adopted;
(viii) any change in the manner in which Inventory of Seller
used in the Business is marketed or any increase in Inventory levels in excess
of historical levels for comparable periods;
(ix) any delay or postponement of payment of any accounts
payable or other liabilities relating to the Business outside the ordinary
course of business;
(x) any declaration, setting aside or payment of any dividend
or distribution with respect to its capital stock, or redemption, purchase or
other acquisition of its capital stock;
(xi) any change in the employment terms or employment-related
benefits for any independent sales representative or employee employed in the
Business outside the ordinary course of business; or
(xii) any agreement or understanding, whether in writing or
otherwise, for Seller to take any of the actions specified in subsections (i)
through (xi) above.
(i) Trade Secrets and Customer Lists. Seller owns or has the right
to use, free and clear of any claims or rights of others, all trade secrets,
inventions, developments, customer lists, manufacturing and secret processes,
hardware designs, programming processes, software and other information, and
know-how (if any) required for the Business, including products licensed from
others. There are no payments that are required to be made by Seller for the use
of such trade secrets, inventions, developments, customer lists, copyrighted
materials, manufacturing and secret processes and know-how. Seller is not using
or in any way making any unlawful or wrongful use of any confidential
information, copyrighted materials, know-how or trade secrets of any third
party, including, without limitation, any former employer of any present or past
employee, of Seller or of any of Seller's predecessors. To Seller's knowledge no
employee is or was a party to any non-competition or confidentiality agreement
with any party other than Seller or Buyer.
E-76
Exhibit 10.1
(j) Contracts. All of the Contracts are in full force and effect and
are freely assignable in accordance with the terms of this Agreement.
(i) Copies of all Contracts, have been provided to Buyer or
their counsel prior to the execution of this Agreement and are true, correct and
complete, and have not been subject to any amendment, extension or other
modification as of the date hereof.
(ii) Each Contract is in full force and effect without any
default thereunder by Seller or, to the knowledge of Seller, by any other party
thereto (a "default" being defined for purposes hereof as an actual default or
any set of facts that would, upon receipt of notice or passage of time,
constitute a default).
(iii) All Contracts with respect to the real estate premises
on which the Business has been conducted as of the Effective Date shall each
have a minimum remaining term of at least twenty five (25) years, pending
approval of the applicable municipality and/or airport authority.
(iv) There are no employment contracts with any employees of
the Seller and all Seller employees are at-will employees.
(k) Litigation. There are no suits, actions or administrative,
arbitration or other proceedings or governmental investigations pending or, to
the knowledge of Seller, threatened against or relating to Seller, the Assets or
the Business. Seller is not otherwise engaged as a party in any suit, action or
administrative, arbitration or other proceeding. Seller has not entered into or
been subject to any consent decree, compliance order, or administrative order
with respect to any property owned, operated, leased, or used by Seller. Seller
has not received any request for information, notice, demand letter,
administrative inquiry, or formal or informal complaint or claim with respect to
any property owned, operated, leased or used by Seller or any facilities or
operations thereon. Seller has not been named by the U.S. Environmental
Protection Agency or a state or local environmental agency as a potentially
responsible party (or similar designation under applicable state law) in
connection with any site at which hazardous substances, hazardous materials,
toxic substances, oil, or petroleum products have been released or are
threatened to be released. There are no existing or, to the knowledge of Seller,
threatened product liability, warranty or other similar claims, or any facts
upon which a claim of such nature could be based, against Seller or the Business
for services or products that are defective or fail to meet any service or
product warranties. Seller is not aware of any facts providing a basis for any
matter addressed in this Section 3.1(k) and has no reason to believe that any
such matters will be forthcoming.
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Exhibit 10.1
(l) Compliance with Laws. Seller is in compliance in all material
respects with, and Seller does not have any material liability under, any and
all applicable federal, state or local statutes, laws, ordinances and
regulations applicable to the Business, including, without limitation, any
applicable franchise, health, environmental, safety, employment (including the
Worker Adjustment and Retraining Notification Act of 1988, as amended ("WARN")),
labor relations or other statute, law, ordinance or regulation.
(m) Insurance. The Assets are insured to the extent set forth in
Schedule 3.1(m) which sets forth a list of all insurance policies, the
expiration date thereof and a brief description of the coverage provided
therein. All such present policies of insurance are with insurance companies
reasonably believed by Sellers to be financially sound and reputable and are in
full force and effect, all premiums with respect thereto are currently paid,
Sellers are in compliance with the terms thereof and no party to any such policy
has repudiated any provision thereof. Such insurance policies are sufficient for
compliance by Sellers with all requirements of law and all agreements and leases
to which Sellers are a party and provide insurance coverage for the properties,
assets, operations and employees of Sellers generally comparable in type and
amount to that which is customarily carried by other corporations engaged in
similar businesses and of approximately the same size and similarly situated as
Seller. The workmen's compensation insurance of Seller complies with applicable
statutory requirements as to the amount of such coverage.
(n) Authorizations. Each Authorization is in full force and effect
without any default thereunder by Seller (a "default" being defined for purposes
hereof as an actual default or any set of facts which would, upon receipt of
notice or passage of time, constitute a default), and can be assigned by Seller
to Buyer hereunder such that it will remain in full force and effect after
giving effect to the purchase of the Assets. Seller has not received any notice
of any claim or charge that Seller has breached any Authorization. Seller has
the right to conduct the Business that it now conducts without any limitations
or restrictions of any kind.
(o) Transactions with Interested Persons. No officer, supervisory
employee or director of Seller, nor any of their respective spouses or children,
owns, directly or indirectly, on an individual or joint basis, any material
interest in, or serves as an officer or director or in another similar capacity
of, any customer, competitor or supplier of Seller or the Business, or any
organization that has a material contract or arrangement with Seller or the
Business.
(p) Employment Benefit Plans. Schedule 3.1(p) sets forth a list of
all employee benefit plans, as that term is defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended, ("ERISA"), that now
are or ever have been maintained by Seller (or any subsidiary of Seller) or to
which Seller (or any subsidiary of Seller) now has or has ever had an obligation
to contribute (the "Employee Benefit Plans"). No event has occurred nor has
there been any omission which would result in violation of any laws, rulings or
regulations applicable to any Employee Benefit Plan. There are no claims pending
or threatened with respect to any Employee Benefit Plan, other than claims for
benefits by employees, beneficiaries or dependents arising in the normal course
of the operation of any such plan. Each such Benefit Plan (and each related
trust, insurance contract, or fund) complies in form and in operation in all
material respects with the applicable requirements of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), the Code and other applicable
laws.
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Exhibit 10.1
(q) Hazardous Materials; Environmental Compliance; Disclosure of
Environmental Information.
(i) Except for its fueling activity with respect to Jet A and
avgas fuel, all of which was conducted in full compliance of all Environmental
Laws (as defined below), Seller has never generated, used, stored or handled any
Hazardous Materials (as hereinafter defined) nor has it treated, stored,
disposed of, spilled or released any Hazardous Materials at any site presently
or formerly owned, leased, operated or used by Seller or shipped any Hazardous
Materials for treatment, storage or disposal at any other site or facilities. No
other person has ever generated, used, handled, stored or disposed of any
Hazardous Materials at any site presently or formerly owned, leased, operated or
used by Seller, nor has there been or is there threatened any release of any
Hazardous Materials on or at any such site. Seller does not presently own or
lease, nor has it previously owned or leased, any site on which underground
storage tanks are or were located. No lien has been imposed by any governmental
agency on any property, facility, machinery, or equipment owned, operated,
leased or used by Seller in connection with the presence of any Hazardous
Materials. For purposes of this Agreement, "Hazardous Materials" shall mean and
include ethylene oxide, any hazardous waste, hazardous material, hazardous
substance, petroleum product, oil, toxic substance or pollutant as defined in or
pursuant to the Resource Conservation and Recovery Act, as amended, the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, the Hazardous Materials Transportation Act or any other foreign,
federal, state or local law, regulation, ordinance, rule or by-law, whether
existing as of the date hereof, previously enforced or subsequently enacted
pertaining to environmental or health and safety matters.
(ii) Seller has no material liability under nor has it ever
violated any Environmental Law (as hereinafter defined), a violation of which
may have a material adverse effect on the Business or the Assets, with respect
to any property owned, operated, leased, or used by Seller and any facilities
and operations thereon. In addition, any property owned, operated, leased, or
used by Seller, and any facilities and operations thereon are presently in
compliance with all applicable Environmental Laws. Seller has not entered into
or been subject to any consent decree, compliance order or administrative order
with respect to any environmental or health and safety matter or received any
request for information, notice, demand letter, administrative inquiry, or
formal or informal complaint or claim with respect to any environmental or
health and safety matter or any enforcement of any Environmental Law; and Seller
has no reason to believe that any of the above will be forthcoming. For purposes
of this Agreement, "Environmental Law" shall mean any environmental or health
and safety-related law, regulation, rule, ordinance, or by-law at the federal,
foreign, state, or local level.
(iii) Seller has provided to Buyer copies of all material
documents, records, and information available to Seller concerning any
environmental or health and safety matter relevant to Seller, whether generated
by Seller or others, including, without limitation, environmental audits,
environmental risk assessments, site assessments, documentation regarding
off-site disposal of Hazardous Materials (as defined above), spill control
plans, and reports, correspondence, permits, licenses, approvals, consents, or
other authorizations issued by any environmental agency. Seller has not entered
into any negotiations or agreements with any Person relating to any remedial
action or Hazardous Materials or Environmental Law-related claim.
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Exhibit 10.1
(iv) Seller has obtained all permits necessary for the
Business's operation, and all such permits are in good standing, and the Seller
is in compliance with all terms and conditions of such permits. All premises
involved in the Business and being assigned to Buyer pursuant to the Contracts
will, as of both the Effective Date and the Closing Date pass all inspections
necessary to conduct the Business as currently conducted by Seller and as
foreseeably to be conducted by Buyer. All permits set forth on Schedule 1.1(e)
are in full force and effect and are not and have not been subject to any
default or enforcement action by the applicable issuing authority.
(r) Backlog. As of the date hereof, Seller has a backlog of firm
orders for the Business, for which revenues have not been recognized by Seller,
as set forth in the Schedule 3.1(r).
(s) Customers, Distributors and Independent Sales Representatives.
Schedule 3.1(s) sets forth a list of all customers and independent
representatives with whom Seller has entered into a contract or agreement.
During such period and through the date hereof, no such customer or independent
representative has canceled or otherwise terminated its relationship with Seller
or decreased materially its usage or purchase of the products or services of
Seller, except for changes in customer relationships that have occurred in the
ordinary course of business. To the knowledge of Seller, no such customer or
independent representative has any plan or intention to terminate, cancel or
otherwise modify its relationship with Seller in a manner that would be adverse
to Seller.
(t) Labor Relations; Employees. Schedule 3.1(t) sets forth a list of
all employees of Seller employed in the Business and a schedule of the total
compensation of each employee, including, but not limited to, base salaries,
commissions, bonus/incentive pays, stock options and car allowances. Seller is
not delinquent in payments to any of its employees for any wages, salaries,
commissions, bonuses or other direct compensation for any services performed for
it to the date hereof or amounts required to be reimbursed to such employees.
Seller is in compliance with all applicable laws and regulations respecting
labor, employment, fair employment practices, worker's compensation, terms and
conditions of employment, and wages and hours. There are no charges of
employment discrimination or unfair labor practices, claims by employees against
Seller or strikes, slowdowns, stoppages of work, or any other concerted
interference with normal operations existing, pending or to the knowledge of
Seller, threatened against or involving Seller or the Business. No question
concerning representation exists with respect to the employees of Seller and
Seller is not aware of any organizational activity. No collective bargaining
agreement is in effect or is currently being, or is about to be, negotiated by
Seller. No independent contractors have been utilized by Seller in provided
services to its customers with respect to the Business. Seller has not violated
the WARN Act or any similar state or local legal requirement. During the ninety
(90) day period prior to the date of this Agreement, Seller has terminated zero
(0) employees.
E-80
Exhibit 10.1
(u) Other Agreements. There are no material agreements or
arrangements relating to the Business not disclosed in any Schedule hereto, to
which Seller, any affiliate of Seller, or any individual currently or formerly
serving as director or officer of Seller, is a party.
(v) Copies of Documents. Seller has made available for inspection
and copying by Buyer and their counsel true and correct copies of (i) all
documents referred to in this Section 3.1 including, without limitation, those
referred to in the Schedules delivered to Buyer pursuant to this Agreement, and
(ii) all other corporate books and records including, without limitation, all
stock record books, all minutes of shareholders' and directors' meeting, and all
consents in lieu of such meetings, which books and records accurately record all
action taken by Seller and Board of Directors of Seller and committees thereof
from the date of organization of Seller through the date hereof.
(w) Disclosure of Material Information and Potentially Adverse
Developments. Seller has reported to Buyer any and all information of which
Seller and any officers and directors of Seller has knowledge as to potentially
adverse factors in the Business, other than factors affecting the industry
generally. The representations, warranties and statements contained in this
Agreement and in the Certificates, Exhibits and Schedules delivered by Seller to
Buyer pursuant to this Agreement, when taken together, do not and shall not
contain any untrue statement of a material fact, and do not and shall not omit
to state a material fact required to be stated therein or necessary in order to
make such representations, warranties or statements not misleading in light of
the circumstances in which they were made.
(x) Knowledge. All references to "knowledge" herein shall mean in
the case of Xxxxxx, Xxxxxx' actual knowledge after reasonable investigation, and
in the case of Seller, Seller's actual knowledge of its executive officers after
reasonable investigation.
(y) Disclosure. Neither this Agreement nor any written document,
certificate or statement furnished by or on behalf of Seller to Buyer in
connection with the transactions contemplated hereby contains any untrue
statement of material fact necessary in order to make the statements in the
circumstance under which they were made not misleading. There is no fact which
materially and adversely affects, or will materially and adversely affect, the
financial condition of Seller or the Business which has not been set forth in
this Agreement, or in the other documents, certificates and statements furnished
to Buyer by or on behalf of Seller in connection with the transactions
contemplated hereby.
3.2 Buyer's Warranties and Representations. Buyer represents and warrants
to Seller as follows:
(a) Organization. Buyer is an entity duly organized, validly
existing and in good standing under the laws of the State of Kansas and has all
requisite corporate authority to carry on its business as is now carried on and
enter into this Agreement.
(b) Validity of Agreement. All corporate or action on the part of
Buyer necessary for the authorization, execution, delivery and performance of
this Agreement by Buyer, including but not limited to, the performance of
Buyer's obligations hereunder has been taken or will be taken prior to the
Closing. This Agreement, when executed and delivered by Buyer, shall constitute
the valid and binding obligation of Buyer enforceable in accordance with its
terms.
E-81
Exhibit 10.1
3.3 Survival of Representations and Warranties. All of Seller's and
Buyer's representations and warranties set forth herein shall be true as of, and
survive, the Closing.
ARTICLE 4
CLOSING; CLOSING DELIVERIES
4.1 Closing. The closing ("Closing") shall occur on the 31st day of March,
2005, which date may be extended for an additional 30 days, in Buyer's sole
discretion (the "Closing Date"). The Closing shall take place at such time and
place as the parties to this Agreement shall agree.
4.2 Buyer's Deliveries. On the Closing Date, Buyer shall deliver to
Seller:
(a) A wire transfer in an amount equal to Four Hundred Thirty Five
Thousand Dollars ($435,000).
(b) An executed Promissory Note in the amount of Two Hundred Forty
Thousand Dollars ($240,000).
(c) Anything else reasonably contemplated by this Agreement to be
delivered at the Closing in order to transfer the Assets to Buyer.
4.3 Seller's Deliveries. On the Closing Date, Seller shall deliver to
Buyer:
(a) The Xxxx of Sale.
(b) Uniform Commercial Code Termination Statement(s) necessary to
eliminate any security interest in the Assets that may be required in order to
deliver to Buyer good and marketable title to the Assets as provided herein.
(c) Resolutions, of the directors and shareholder of Seller,
certified by the secretary of Seller, approving the transactions contemplated by
this Agreement.
(d) All third party consents, in form reasonably acceptable to
Buyer, necessary or desirable to transfer good and marketable title to the
Assets to Buyer; and
(e) Anything else reasonably contemplated by this Agreement to be
delivered at the Closing in order to transfer the Assets to Buyer.
4.4 Xxxxxx' Deliveries. On the Closing Date, Xxxxxx shall deliver to
Buyer:
(a) An employment agreement executed by Xxxxxx in the form of
Exhibit C attached hereto and fully incorporated herein ("Employment
Agreement").
E-82
Exhibit 10.1
ARTICLE 5
COVENANTS; CONDITIONS TO CLOSING
5.1 Seller's Covenants
(a) Access to Information. From the date of execution of this
Agreement to the Closing, Seller will allow Buyer, its professional advisors and
other representatives access during normal business hours to the properties,
books, records, contracts and commitments and all such information and documents
relating to Seller's operation of the Business as Buyer, Buyer's professional
advisors and other representatives reasonably request. Buyer, its professional
advisors and other representatives will keep confidential information received
concerning Seller's operation of the Business. If this Agreement is terminated
prior to the Closing, Buyer will promptly return to Seller all documents and
other written materials pertaining to the Business.
(b) Tax Clearances. If requested by Buyer, Seller shall apply for an
Official Tax Clearance Letter from the Kansas Department of Revenue, Secretary
of State and any other governmental agency having the power to impose a tax
which is or may become a lien on the Assets and diligently prosecute such
applications until such certificates have been obtained.
(c) Bulk Sale Compliance. If requested by Buyer, Seller shall take
the steps necessary to record and publish notice of intended transfer and
otherwise comply with applicable Bulk Sales Law.
(d) Conduct of the Business. During the period between Buyer's
execution and tender of this Agreement and the Closing Date, Seller shall
conduct the Business strictly in accordance with past practice and shall not,
without the prior written consent of Buyer:
(i) merge or consolidate with any third party or acquire
assets or the business of any other third party (other than purchase of
inventory in the ordinary course of the Business consistent with past
practices):
(ii) sell, lease, license, encumber, transfer, or otherwise
dispose of any Assets except (i) pursuant to Contracts or commitments existing
as of the date of this Agreement, and (ii) in the ordinary course of the
Business consistent with past practices;
(iii) enter into or terminate any Contracts, or amend or
otherwise change in any material respect the terms thereof in a manner adverse
to the Business or the Assets; or
(iv) agree or commit to do any of the foregoing.
5.2 Conditions Precedent to Closing.
(a) Conditions to Seller's Obligations. Seller's obligations to make
the deliveries at the Closing are subject to each of the following conditions:
E-83
Exhibit 10.1
(i) Buyer shall have performed and complied with each and
every covenant on Buyer's part to be performed which, by its terms, is capable
of performance before the Closing.
(ii) All of the representations and warranties of Buyer
contained herein shall continue to be true and correct at the Closing in all
material respects.
(iii) Buyer shall have delivered, or be prepared to deliver,
all cash and documents required by Buyer to be delivered at the Closing.
(iv) Seller may waive any condition specified in this Section
5.2(a) provided that such waiver shall be in writing, signed by Seller and
delivered at or prior to the Closing.
(b) Conditions to Buyer's Obligation.
(i) Seller shall have performed and complied with each and
every covenant on Seller's part to be performed which, by its terms is capable
of performance before the Closing;
(ii) The representations and warranties of Seller set forth in
ARTICLE 3 or elsewhere in this Agreement shall be true and correct as of the
Closing Date.
(iii) Seller shall have procured all of the third party
consents, approvals and authorizations that Buyer, in their sole and reasonable
discretion, shall consider necessary or appropriate in connection with the
Transactions.
(iv) Buyer shall have completed its due diligence with respect
to the Assets and the Business, including, but not limited to, a Phase 1
environmental site assessment and if necessary more thorough environmental site
assessments, and the results of its due diligence shall have been determined by
Buyer, in its sole and absolute discretion, to be satisfactory.
(v) No action, suit or proceeding shall be pending or
threatened before any court of judicial, quasi-judicial or administrative agency
of any federal, state, local or foreign jurisdiction or before any arbitrator
wherein an unfavorable injunction, judgment, order, decree, ruling or charge
would or could, in the sole and absolute opinion of Buyer (i) prevent
consummation of any of the Transactions, (ii) cause any of the Transactions to
be rescinded following consummation (and no such injunction, judgment, order,
decree, ruling, or charge shall be in effect), or (iii) affect adversely the
right of Buyer to own the Assets or to operate the Business;
(vi) Seller shall have delivered to Buyer a certificate to the
effect that each of the conditions specified above in Section 5.2(b)(i)-(iii) is
satisfied in all respects;
(vii) Buyer shall have received all Schedules referenced in
ARTICLE 1 and ARTICLE 3 updated through the Closing Date, all of which shall be
satisfactory in all respects to Buyer;
E-84
Exhibit 10.1
(viii) Buyer may waive any condition specified in this Section
5.2(b) provided that such waiver shall be in writing, signed by Buyer and
delivered at or prior to the Closing.
ARTICLE 6
EMPLOYEES
6.1 Employees. Seller shall be responsible for all unpaid earned wages
(including unpaid accrued vacation benefits) and unreimbursed expenses which
were incurred on or before the Closing Date and shall pay such unpaid earned
wages and unreimbursed expenses on the date of the Closing. Seller shall be
liable for any workers' compensation claim, or claim made for work-related
injuries or illnesses which pertains to injuries or illnesses occurring prior to
or on the Closing Date.
6.2 Employee Benefit Plans and COBRA. Buyer is under no obligation to
continue any of Seller's employee benefit plans (within the meaning of Section
3.3 ERISA) nor is Buyer obligated to replace any such plans. Seller shall have
the sole responsibility and obligation for complying with the health care
continuation coverage requirements of Internal Revenue Code ("Code") Section
162(k) and Section 601 et seq. of ERISA ("COBRA") that are applicable to any of
Seller's employees and shall be solely responsible for providing COBRA
continuation coverage to any persons entitled to such coverage in connection
with any health plan sponsored by Seller.
ARTICLE 7
COVENANTS NOT TO COMPETE
7.1 Covenant Not to Compete.
(a) Restrictions on Competitive Activities. In consideration for the
agreements of Buyer in connection with the sale and purchase of the Assets, and
other good and valuable consideration, Seller and Xxxxxx acknowledge that the
Business has uniquely valuable and proprietary information that would be
competitively unfair to make available to any competitor of Buyer as the
acquirer of the Assets. For this and other reasons, and as an inducement to
Buyer to enter into this Agreement, Seller and Xxxxxx agree that for a period of
five (5) years after the Closing Date, Seller and Xxxxxx shall not, directly or
indirectly, for their own benefit or as agent for another, carry on or
participate in the ownership, management or control of, or the financing of, or
be employed by, or consult or otherwise render services to, or allow their
respective names or reputations to be used in or by any other present or future
business enterprise that directly or indirectly competes with Buyer in any
business activity similar to any business activity comprising part of the
Business being acquired by Buyer in Xxxxxx County or in the State of Kansas.
(b) Exceptions. Nothing contained herein shall limit the right of
Xxxxxx as investor to hold and make investments in securities of any corporation
or limited partnership that is registered on a national securities exchange or
admitted to trading privileges thereon or actively traded in a generally
recognized over-the-counter market, provided the equity interest therein of
Xxxxxx in the aggregate does not exceed one percent (1%) of the outstanding
shares or interests in such corporation or limited partnership.
E-85
Exhibit 10.1
(c) Restrictions on Soliciting Employees. To protect Buyer against
any efforts by Seller and/or Xxxxxx to cause former employees of Seller
subsequently employed by Buyer in the Business acquired from Seller to terminate
their employment, Seller and Xxxxxx agree that for a period of five (5) years
following the Closing Date, each of Seller and Xxxxxx will not directly or
indirectly, (i) induce any such employee of Buyer to leave the employ of Buyer
or to accept any other employment position, or (ii) assist any other entity in
hiring any such employee.
(d) Nondisclosure of Propriety Data. Seller, Xxxxxx, nor any of
their respective agents or representatives, shall, at any time, make use of,
divulge or otherwise disclose, directly or indirectly, any trade secret or other
proprietary data (including, but not limited to, any customer list, record or
financial information) concerning the Assets (including, but not limited to, the
Business) acquired by Buyer hereunder that Seller or any such agent or
representative may have learned prior to the Closing.
(e) Special Remedies and Enforcement. Seller recognize and agree
that a breach by Seller and/or Xxxxxx of any of the covenants set forth in this
section could cause irreparable harm to Buyer, that Buyer's remedies at law in
the event of such breach would be inadequate, and that accordingly, in the event
of any such breach a restraining order or injunction or both may be issued
against Seller and/or Xxxxxx in addition to any other rights and remedies which
are available to Buyer. If this Section is more restrictive than permitted by
applicable law, this Section shall be limited to the extent required by such
law.
ARTICLE 8
INDEMNIFICATION
8.1 Seller's and Xxxxxx' Indemnity. Seller and Xxxxxx shall jointly and
severally indemnify, defend and hold harmless Buyer, its assigns, and their
respective officers, directors, shareholders, employees, agents and
representatives (collectively "Buyer Indemnitees") against all damages, claims,
liabilities, losses and other expenses, including without limitation reasonable
attorneys' fees and costs, whether or not a lawsuit or other proceeding is
filed, that arise out of: (i) Seller's operation of the Business or use of the
Assets; (ii) Seller's operation of any other business or any other transactions,
including without limitation all activities and transactions related to the
Aircraft, whether prior to or following the Closing Date; (iii) a material
breach of any obligation, representation, warranty, covenant or agreement made
by Seller in this Agreement, or any material representation or warranty by
Seller contained herein, in any document furnished or required to be furnished
pursuant to this Agreement by Seller to Buyer or any of their representatives,
or in any documents furnished to Buyer in connection with the Closing hereunder
being false; (iv) any violations of COBRA, ERISA, the Code or any other federal
or state law arising as a result of the termination of any of Seller's employees
as a result of the purchase of the Assets; (v) any use, spill, release, escape
or presence of Hazardous Materials in or about any real property used, leased or
owned by Seller; (vi) any violations of Environmental Laws arising out of
Seller's operation of the Business or otherwise arising prior to the Closing
Date; and (vii) cost and expenses (including reasonable attorneys' fees)
incurred by Buyer in connection with any action, suit, proceeding, demand,
assessment or judgment incident to any of the foregoing. Seller and/or Xxxxxx,
as the case may be, shall have exclusive control over the settlement or defense
of such claims or actions, except that Buyer Indemnitees may appear in the
action, at their own expense, if such parties reasonably determine that an
actual conflict of interest would exist by Seller's representation of such Buyer
Indemnitees and Seller and/or Xxxxxx in such action. In the event Seller and
Xxxxxx fail to promptly indemnify and defend such claims and/or pay Buyer
Indemnitees' expenses, as provided above, each of the Buyer Indemnitees shall
have the right to defend itself, and in that case, Seller and Xxxxxx shall
jointly and severally reimburse such Buyer Indemnitees for all of their
attorneys' fees, costs and damages incurred in settling or defending such claims
within thirty (30) days of each of such parties' written requests. Buyer shall
have the right to set off all obligations of Seller and Xxxxxx incurred pursuant
to this Section 8.1 against any debt or other monetary obligation owed to Seller
and Xxxxxx.
E-86
Exhibit 10.1
8.2 Buyer's Indemnity. Buyer shall indemnify, defend and hold harmless
Seller, its assigns, and their respective officers, directors, shareholders,
employees, agents and representatives (collectively "Seller Indemnitees")
against all damages, claims, liabilities, losses and other expenses, including
without limitation reasonable attorneys' fees and costs, whether or not a
lawsuit or other proceeding is filed, that arise out of: (i) Buyer's operations
of the Business or use of the Assets following the Closing Date, but only to the
extent any such damages, claims, liabilities, losses and other expenses do not
arise from or are not otherwise related to events taking place prior to the
Closing or are not otherwise indemnified by Seller in Section 8.1 above; (ii) a
material breach of any obligation, representation, warranty, covenant or
agreement made by Buyer in this Agreement, or any material representation or
warranty by Buyer contained herein, in any document furnished or required to be
furnished pursuant to this Agreement by Buyer to Seller or any of its
representatives, or in any documents furnished to Seller in connection with the
Closing hereunder being false; and (iii) cost and expenses (including reasonable
attorneys' fees) incurred by Seller in connection with any action, suit,
proceeding, demand, assessment or judgment incident to any of the foregoing.
Buyer shall have exclusive control over the settlement or defense of such claims
or actions, except that Seller Indemnitees may appear in the action, at their
own expense, if such parties reasonably determine that an actual conflict of
interest would exist by Buyer's representation of such Seller Indemnitees and
Buyer in such action. In the event Buyer fails to promptly indemnify and defend
such claims and/or pay Seller Indemnitees' expenses, as provided above, each of
the Seller Indemnitees shall have the right to defend itself, and in that case,
Buyer shall reimburse such Seller Indemnitees for all of their attorneys' fees,
costs and damages incurred in settling or defending such claims within thirty
(30) days of each of such parties' written requests.
8.3 Contrary Intentions. The foregoing indemnities shall be payment
obligations and not merely reimbursement obligations, it being understood that
Xxxxxx, Seller and Buyer have a "contrary intention" with respect to the
provisions of paragraph 2 of Section 2778 of the California Civil Code.
E-87
Exhibit 10.1
ARTICLE 9
MISCELLANEOUS
9.1 Relationship of Parties. With respect to this Agreement and the
Transactions contemplated hereby, the relationship between the parties is only
that of a seller and buyer. With respect to this Agreement and the Transactions
contemplated hereby, neither Buyer on the one hand nor Seller and Xxxxxx, on the
other hand, is the agent or legal representative of the other party, and neither
party has the right or authority to bind the other party in any way.
9.2 Notices and Reports. All notices and reports required or permitted
pursuant to this Agreement shall be in writing and delivered by (i) Federal
Express or United Parcel Service ("Express Carrier"), each postage pre-paid and
sent via overnight delivery (or if overnight delivery is not available, then the
soonest delivery offered by such carrier); or (ii) confirmed fax message
followed by delivery by Express Carrier of a copy of the notice. All such
notices shall be addressed to Buyer or Seller at their addresses and fax numbers
as listed herein or to such other address as either party may from time to time
advise in writing in accordance with this section.
If to Seller:
Central Plains Aviation, Inc
0000 Xxxxx Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxxxxx 00000
If to Buyer: With a copy to:
F B O Air - Garden City, Inc. Xxx Xxxxxxx, Esq.
0000 Xxxx Xxxxxxx Xxx Xxxx Xxxxxxx Xxxxxxxx & Scripps, LLP
Xxxxxxxxxx, Xxxxxxx 00000 00000 Xx Xxxxxx Xxxx, #000
Xxx Xxxxx, Xxxxxxxxxx 00000
If to Xxxxxx:
0000 Xxxxxx Xxxxx
Xxxxxx Xxxx, Xxxxxx 00000
All notices required or permitted under this Agreement which are addressed
as provided in this section, if delivered by facsimile, shall be effective upon
transmission provided a confirmation copy is sent by Express Carrier and upon
confirmed delivery if sent by Express Carrier. All notices and reports shall be
written in English.
9.3 Entire Agreement; Governing Law.
(a) The provisions of this Agreement contain the entire agreement
between the parties relating to the subject matter hereof. This Agreement may
not be released, discharged, abandoned, changed or modified in any manner except
by an instrument in writing signed by the parties.
E-88
Exhibit 10.1
(b) This Agreement will be governed by and interpreted under the
laws of the State of California, without regard to choice of law principles.
(c) All parties irrevocably submit to the jurisdiction of the state
and federal courts located in San Diego, California for any action or proceeding
regarding this Agreement, and all parties waive any right to object to the
jurisdiction or venue of the courts in San Diego, California.
9.4 Assignability. Seller may not assign, encumber or in any way transfer
or delegate any interest, right or duty under this Agreement without the prior
written consent of the Buyer, which consent may be withheld for any reason or no
reason. Buyer may assign this Agreement without consent to any direct or
indirect subsidiary or other affiliate of Buyer.
9.5 Binding Nature. This Agreement shall be binding on the heirs,
successors, subsidiaries and permitted assigns of the parties hereto.
9.6 Waiver. The waiver by either party or the failure by either party to
claim a breach or default of any provision of this Agreement shall not
constitute a waiver of any subsequent breach or default. Nor shall any waiver of
any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring.
9.7 Unenforceable Provision. If any provision of this Agreement violates
or is unenforceable under any applicable law of any jurisdiction in which
activities hereunder are performed, that provision shall be deemed void and the
remaining provisions shall remain in full force and effect. In lieu of such void
provision, there shall automatically be added a substitute valid provision as
near to the intent and purpose of the void provision as is possible.
9.8 Attorneys' Fees. In the event a dispute arises regarding this
Agreement, the prevailing party shall be entitled to recover its reasonable
attorneys' fees and costs, in addition to other relief to which it is entitled.
9.9 Counterparts. This Agreement may be executed in several counterparts
that together shall be originals and constitute one and the same instrument.
9.10 Interpretation. The language in this Agreement shall in all cases be
construed as a whole and in accordance with its fair meaning. This Agreement
shall not be construed for or against either party as a result of the initial
preparation or drafting by a party of any provision hereof.
9.11 Headings; Exhibits. The headings of the sections are inserted for
convenience of reference only and are not intended to affect the meaning or
interpretation of this Agreement. All Exhibits to this Agreement are hereby
incorporated herein. All capitalized defined terms used in the Exhibits but not
defined in the Exhibits shall have the meanings defined in this Agreement.
9.12 Confidentiality. Each of Buyer, Xxxxxx and Seller shall maintain in
confidence and shall cause their respective officers, directors, employees,
advisors and agents to maintain in confidence any information obtained in
confidence from any other party hereto and, at the request of any party
disclosing such information, shall return such information immediately if this
Agreement is terminated for any reason.
E-89
Exhibit 10.1
9.13 Construction. In the interpretation and construction of this
Agreement, the parties acknowledge that the terms hereof reflect extensive
negotiations between the parties and that this Agreement shall not be deemed,
for the purpose of construction and interpretation, that either party drafted
this Agreement.
9.14 Representation. Seller and Xxxxxx warrant and represent that in
executing this Agreement, they have been advised by Buyer to, and have had the
opportunity to, rely upon legal advice from the attorney of their choice, that
the terms of this Agreement and its consequences have been completely read by
Seller, and that Seller and Xxxxxx fully understand the terms of this Agreement.
9.15 Further Assurances. All parties agree to execute such additional
documents and perform such acts as are reasonably necessary to effectuate the
intent of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
Central Plains Aviation, Inc. F B O Air - Garden City, Inc.
By: By:
-------------------------------- --------------------------
Name: Xxx X. Xxxxxx Name: Xxx Xxxxxxxxx
----------------------------- ------------------------------
Title: President Title: President
----------------------------- ------------------------------
Xxx X. Xxxxxx
----------------------------------
E-90
