(10.65) Transfer Agreement between Aero Services International, Inc.
and TigerAir, Inc. dated November 8, 1995.
TRANSFER AGREEMENT
THIS TRANSFER AGREEMENT (this "Agreement") is made and
entered into as of the 8th day of November, 1995, by and between
AERO SERVICES INTERNATIONAL, INC., a Louisiana corporation
("Aero"), TIGERAIR, INC., a Texas corporation ("TigerAir"), and
XXXXXXX X. XXXXXXX ("Xxxxxxx").
W I T N E S S E T H:
WHEREAS, Eagle Directions, Inc., a Delaware corporation
("Eagle") is the lessee of certain real property, with
improvements thereon, located at the Houston Hobby Airport in
Houston, Texas (the "Airport"), at which location Eagle has
operated fixed base operations serving the aviation industry;
and
WHEREAS, Eagle's leasehold interest at the Airport is the
subject of that certain lease agreement by and between the City
of Houston and Sky Travel Jet Service, Inc., dated March 15,
1989 (the "Municipal Lease"), which Municipal Lease was assigned
to, and assumed by, Eagle pursuant to that certain assignment
and assumption of lease by and among Sky Travel Jet Service,
Inc. and Eagle, dated as of February 10, 1993; and
WHEREAS, as of October 20, 1994, Eagle and Aero entered into
that certain sublease agreement, a copy of which is attached
hereto as Exhibit A (the "Sublease"), pursuant to which Sublease
Aero, among other things, is the sub-lessee of Eagle's leasehold
interest under the Municipal Lease; and
WHEREAS, pursuant to the Sublease, Aero currently operates
the Houston FBO (as hereinafter defined); and
WHEREAS, as of October 20, 1994, Aero and Eagle entered into
that certain option agreement, a copy of which is attached
hereto as Exhibit B (the "Option Agreement"), pursuant to which,
among other things, Eagle granted Aero an option (the "Option")
to purchase and acquire, from Eagle, Eagle's leasehold interest
under the Municipal Lease, together with all of Eagle's rights,
title and interest in and to the Operational Assets (as defined
in the Option Agreement) used in the operation of the Houston
FBO; and
WHEREAS, Eagle's leasehold interest at the Airport and
Eagle's ownership interest in the Operational Assets, together
with all of Eagle's rights, title and interest therein or with
respect thereto, may be referred to as the "Houston FBO"; and
WHEREAS, Xxxxxxx has caused TigerAir to be incorporated for
the purposes of (i) acquiring the Transferred Rights (as
hereinafter defined), (ii) acquiring the Transferred Assets (as
hereinafter defined), and (iii) operating the Houston FBO; and
WHEREAS, Xxxxxxx and TigerAir desire that TigerAir (i)
acquire all of Aero's right, title and interest to, in and under
the Option Agreement and the Sublease, (ii) acquire all of
Aero's right, title and interest in and to the Transferred
Assets, and (iii) assume all of Aero's obligations under the
Option Agreement and the Sublease, and otherwise with respect to
the Transferred Assets and the Houston FBO; and
WHEREAS, under the terms and conditions hereinafter set
forth, Aero is willing to sell, transfer and assign the
Transferred Rights and the Transferred Assets to TigerAir,
including all of Aero's right, title, interest and obligations
with respect thereto, and otherwise with respect to the Houston
FBO;
NOW, THEREFORE, in consideration of the foregoing, for other
good and valuable consideration the receipt and adequacy of
which are hereby acknowledged, intending to be legally bound,
the parties agree as follows:
1. Recitals. The foregoing recitals constitute a material part of
this Agreement, and are expressly incorporated herein by reference.
2. Assignment of Option Agreement and Sublease; Sale of Equipment
and Inventory.
(a)Option
Agreement and Sublease. Aero hereby assigns, transfers and sets
over, without recourse, unto TigerAir all of its rights, title
and interest in, to and under the Option Agreement and the
Sublease (the "Transferred Rights"). TigerAir hereby accepts
the assignment of all of the Transferred Rights, and, further,
assumes all of Aero's obligations, whether actual or contingent,
under or otherwise with respect to the Option Agreement and the
Sublease, and otherwise with respect to the Houston FBO.
b)Equipment.
Aero hereby sells, transfers and assigns to TigerAir, all of the
personal property used in the operation of the Houston FBO and
located at the Houston FBO as of the Closing, other than
computer equipment and software (the "Transferred Assets"). The
parties expressly acknowledge and agree that any and all
computer equipment and software used by Aero at the Houston FBO
is excluded from the Transferred Assets. THE TRANSFERRED ASSETS
ARE SOLD AND TRANSFERRED HEREUNDER "AS IS" AND TIGERAIR ACKNOWLEDGES THAT
AERO HAS NOT MADE, AND AERO HEREBY EXPRESSLY DISCLAIMS AND NEGATES ANY
REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,
RELATING TO THE PHYSICAL CONDITION OF THE TRANSFERRED ASSETS (INCLUDING,
WITHOUT LIMITATION, ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY
OR FITNESS FOR A PARTICULAR PURPOSE) AND FURTHER, TIGERAIR ACCEPTS ALL OF THE
PURCHASED ASSETS IN THEIR "AS IS" CONDITION.
(c)Fuel and Oil
Inventory. Aero and TigerAir will mutually conduct a physical
inventory of all fuel and oil on hand at the Houston FBO at the
Closing Date (the "Fuel and Oil Inventory"), which Fuel and Oil
Inventory shall be sold, transferred and assigned to TigerAir as
of the Closing.
3. Consents.
(a)Consent of Eagle.
The assignment of the Transferred Rights is subject to
and contingent on the execution of an assignment and consent by
and among Aero, TigerAir and Eagle (the "Assignment and
Consent"), pursuant to which (i) Aero assigns the Sublease and
the Option Agreement to TigerAir, (ii) TigerAir assumes Aero's
obligations under and with respect to the Sublease and the
Option Agreement, and (iii) Eagle consents to the non-recourse
assignment of the Sublease and the Option Agreement by Aero to
TigerAir.
(b)Consent of the City of Houston. The assignment of the Transferred Rights
and TigerAir's assumption of the Sublease and the Option Agreement
is subject to the approval and consent of the City of Houston,
Texas (the "City"), to be evidenced by an instrument in form and
substance acceptable to the City. The foregoing
notwithstanding, as between Aero and TigerAir, the City's
approval and consent shall not be a condition precedent to the
effectiveness of this Agreement or any provision hereof. Aero
makes no representations or warranties with respect to the
City's willingness to consent to TigerAir's assumption of the
Sublease and the Option Agreement.
4. Assumption of Obligations. In conjunction with the sale,
transfer and assignment of the Transferred Rights and the Transferred
Assets, TigerAir shall assume (i) all of Aero's obligations under and
with respect to the Option Agreement, (ii) all of Aero's
obligations under and with respect to the Sublease, (iii) the
Exxon Fuel Supply Contract described in Section 8 hereof, (iv)
the AvFuel Refueler Agreements described in Section 9 hereof,
(v) the employment of all current employees at the Houston FBO,
as further described in Section 10 hereof (the "Employees"), and
(vi) all other obligations of Aero with respect thereto, and
otherwise in connection with, the Houston FBO. (Hereinafter,
the obligations of Aero assumed by TigerAir under and with
respect to the Option Agreement, the Sublease, the Exxon Fuel
Supply Contract, the AvFuel Refueler Agreements, the Employees,
and otherwise in connection with the Houston FBO, may be
referred to as the "Assumed Obligations".)
5. Consideration. In consideration of Aero's sale, transfer and
assignment of the Transferred Rights and the Transferred Assets
to TigerAir, TigerAir shall pay to Aero the amount of Two
Hundred Fifty Thousand Dollars ($250,000), (ii) assume the
Assumed Obligations, and (iii) indemnify and hold Aero harmless
as described in Section 23 hereof. In addition to the
foregoing, at the Closing TigerAir shall pay Aero an amount
equal to Aero's invoice cost of the Fuel and Oil Inventory.
6. Payment of Cash Portion of Consideration. TigerAir shall pay the Two
Hundred Fifty Thousand Dollars ($250,000) referenced in Section
5 hereof in the form of a non-interest bearing promissory note
made payable by TigerAir to Aero in the original principal
amount of Two Hundred Fifty Thousand Dollars ($250,000), which
promissory note shall contain the terms and conditions set forth
in Exhibit C hereof (the "Acquisition Promissory Note"). The
principal amount of the Acquisition Promissory Note shall be due
and payable on the first to occur of: (i) TigerAir's subsequent
sale of the Houston FBO; (ii) a change in ownership of TigerAir;
or (iii) the third anniversary date of the date of the Closing
Date (as hereinafter defined). The invoice cost of Fuel and Oil
Inventory shall be treated as an advance on the Working Capital
Note (as hereinafter defined).
7. Closing. The Closing at which the all of Aero's right, title and
interests to the Transferred Rights shall be transferred to
TigerAir, and at which TigerAir shall assume the Assumed
Obligations (the "Closing") shall occur at 12:00 a.m., local
time, at the offices of Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx, located
at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000, on
November 8, 1995 or such other date as may be mutually agreed to
by Aero, Xxxxxxx and TigerAir, which date shall not be more that
two (2) weeks from the date of this Agreement (the "Closing
Date").
8. Exxon Fuel Supply Contract. As of the Closing, Tiger Air shall assume
that certain fuel supply contract by and between Aero and Exxon
Company, U.S.A., a division of Exxon Corporation, a New Jersey
corporation ("Exxon"), a copy or which is attached hereto as
Exhibit D (the "Exxon Fuel Supply Contract"). TigerAir shall be
responsible for obtaining Exxon's consent to the assignment and
the assumption of the Exxon Fuel Supply Contract, and shall
provide Aero with adequate assurances, reasonably acceptable to
Aero, that the Exxon Fuel Supply Contract will not be canceled
by TigerAir prior to its expiration in accordance with its
terms.
9. AvFuel Refueler Agreements. As of the Closing, TigerAir shall assume
those certain refueler lease agreements by and between Aero and
AvFuel Corporation, a Michigan corporation ("AvFuel"), a copies
of which are attached hereto as Exhibit E (the "AvFuel Refueler
Agreements"). TigerAir shall be responsible for obtaining
AvFuel's consent to the assignment and the assumption of the
AvFuel Refueler Agreements, and shall provide Aero with adequate
assurances, reasonably acceptable to Aero, that the AvFuel
Refueler Agreements will not be canceled by TigerAir prior to
their expiration in accordance with their respective terms. In
the event that AvFuel requires a sublease of the AvFuel Refueler
Agreements rather than an assignment to TigerAir, then TigerAir
shall, as directed by Aero, either (i) promptly pay each invoice
from AvFuel within the period set forth for payment in the
AvFuel Refuel Agreements and sublease, or (ii) within two (2)
days of Aero's payment of any such invoices fully reimburse Aero
for such payment.
10. Employees. As of the Closing, TigerAir shall continue the employment,
under current terms and conditions, of each of the Employees of
Aero at the Houston FBO whose names are set forth on Schedule 10
hereto. TigerAir shall assume all obligations with respect to
the Employees, and shall provide each such Employee with the
same salaries and benefits currently provided by Aero.
11. Aero Accounts Receivable. Aero's accounts receivable are expressly
excluded from the assignment described in Section 2 hereof. As
of the Closing Date, or as soon as practicable thereafter, Aero
and TigerAir shall prepare a schedule (to be attached hereto as
Schedule 11) of Aero's accounts receivable in existence as of
12:01 a.m. on the Closing Date ("Aero's Accounts Receivable").
From and after the Closing, TigerAir shall use its best efforts
to collect Aero's Accounts Receivable and to remit the same to
Aero without withholding any fees or commissions therefor. Each
amount collected by TigerAir with respect to Aero's Accounts
Receivable shall be remitted by TigerAir to Aero within five (5)
days after the collection thereof.
12. Work in Process. Work in process shall be prorated based on percentage
of completion at the Closing Date. Aero and TigerAir shall
identify on a schedule (to be attached hereto as Schedule 12)
all such items of work in process as of the Closing Date, and
shall indicate the percentages of the fee to be allocated
between Aero and TigerAir based on the percentage work completed
as of the Closing Date. To the extent practicable, Aero shall
invoice customers for so much of any work in process as has been
completed by Aero as of the Closing Date. Any portion of a
deposit received by Aero for work in process that exceeds Aero's
allocated percentage of the fee for such work shall be delivered
to TigerAir at the Closing. Any uncollected amounts owing to
Aero for work in process shall be remitted by TigerAir within
five (5) days after the collection thereof. Aero and TigerAir
shall warrant any work in process completed by them to the
extent of their respective contributions to such completed work
in process, and shall indemnify and hold each other harmless
with respect thereto.
13. Revolving Working Capital Loan. Aero agrees that, at the Closing, Aero
shall provide a revolving working capital loan (the "Working
Capital Loan") to TigerAir in the principal amount not to exceed
Fifty Thousand Dollars ($50,000), which loan shall be evidenced
by a promissory note in the form attached hereto as Exhibit F
(the "Working Capital Note"). The Working Capital Loan shall be
subject to the following terms and conditions:
(a)Interest.
The outstanding principal amount of the Working Capital Note shall
bear interest at the fixed annual rate of nine and one-half
percent (9.5%). Interest accrued under the Working Capital Loan
shall be due and payable monthly in arrears.
(b)Credit Line Cap. The principal amount outstanding under the Working Capital
Loan shall not, at any time, exceed the Maximum Availability (as
hereinafter defined). Any amounts under the Working Capital
Loan that exceed the Credit Line Cap shall be immediately due
and payable.
(c)Maximum
Availability; Repayment. As of the Closing, the maximum
availability (the "Maximum Availability") under the Working
Capital Loan shall be Fifty Thousand Dollars ($50,000).
Commencing on the sixtieth (60th) day following the Closing, and
on the same day of each month thereafter, the Maximum
Availability shall be reduced by Five Thousand Dollars ($5,000),
such that on the sixtieth (60th) day following the Closing the
Maximum Availability shall be reduced to Forty-five Thousand
Dollars ($45,000), and on the same day of the next following
month, the Maximum Availability shall be reduced to Forty
Thousand Dollars ($40,000), and so on until the Maximum
Availability is reduced to zero.
14. Security. The full and prompt payment by TigerAir of Acquisition
Promissory Note, the Working Capital Note and TigerAir's other
obligations hereunder shall be secured by: (i) TigerAir's
accounts receivable and work in process from the operation of
the Houston FBO; (ii) a first priority security interest in all
existing and after-acquired fixtures and personal property owned
by TigerAir, including replacements, additions, substitutions,
products and proceeds thereof; (iii) a pledge by Xxxxxxx of all
of Xxxxxxx'x options to acquire stock of Aero; (iv) a pledge by
Xxxxxxx of all of the issued and outstanding shares of TigerAir
now or hereafter owned by Xxxxxxx. TigerAir and Xxxxxxx shall
execute and deliver such assignments, pledge agreements,
security agreements and financing statements as shall be
required by Aero to create and perfect all such security
interests. The foregoing notwithstanding, Aero acknowledges and
agrees that on the payment in full of all amounts due on account
of the Working Capital Note and on the Termination of the
Working Capital Loan, Aero will, on TigerAir's request, agree to
subordinate its first priority security interest in TigerAir's
accounts receivable and personal property to the first priority
security interest therein of a commercial lending institution
that, at such time, provides a credit facility to TigerAir.
15. Prorations. Operation of the Houston FBO until 12:01 a.m. on the
Closing Date shall be for the account of Aero, and thereafter
for the account of TigerAir. Those items of revenue and expense
of the Houston FBO and other items hereinafter described shall
be prorated and adjusted between Aero and TigerAir as of the
Closing Date as follows:
(a)General Adjustment. Real estate taxes, possessory interest taxes,
personal property taxes, lease payments and rents, and any other
receipts and expenses attributable to any lease by Aero, as
lessor or lessee, and other operating income and expenses
relating to the Houston FBO, shall be prorated as of the Closing
Date between Aero and TigerAir. All business, license,
occupation, sales, use, withholding or similar taxes, or any
other taxes of any kind relating to the Houston FBO and
attributable to the period prior to the Closing Date shall be
paid by Aero, and all such taxes attributable to the period on
and after the Closing Date shall be paid by TigerAir.
(b)Utilities.
TigerAir shall make appropriate arrangements for transfer of all
necessary utility and other services in TigerAir's name to be
effective as of the Closing Date. In lieu of prorating power,
gas and water bills, the appropriate utilities will be requested
by Aero to take meter readings as close to the Closing Date as
possible and to xxxx Aero for service prior to such readings and
to xxxx TigerAir for service thereafter. The readings may occur
before or after the Closing Date. With respect to telephone
services, on receiving a copy of the next following billing for
telephone service after the Closing, Aero will either pay
directly or reimburse TigerAir within ten (10) business days
after receipt thereof for those charges attributable to calls
made prior to the Closing Date. General monthly charges
reflected by such billing for telephone service to the Houston
FBO will be prorated on the basis of the number of days Aero
occupied the Houston FBO during the period covered by the
billing.
(c)Fuel and Oil
Flowage Fees and Taxes. Any and all fuel flowage fees and taxes
paid, or due to be paid, with respect to Fuel and Oil Inventory
shall be prorated as of the Closing.
(d)Implementation
of Prorations and Other Payments. Prior to the Closing Date,
Aero and TigerAir shall undertake in good faith to mutually
agree on a closing statement setting forth the determination of
the items to be prorated and accounted for hereunder, and the
net amount due, if any, to either Aero or TigerAir, as the case
may be, shall be paid or credited at the Closing.
16. Resignation. Effective as of the Closing, Xxxxxxx shall resign as
President and as a director of Aero. Xxxxxxx shall execute a
general release in favor of Aero, in form and content identical
to the form of release attached hereto as Exhibit G, waiving any
and all rights, claims and causes of action associated with
Xxxxxxx'x employment with Aero and with the termination thereof
in accordance with this Section 16.
17. Cooperation. Following his resignation as described in Section 16
hereof, Xxxxxxx shall cooperate with, and make himself available
to, Aero at mutually agreed times for the purpose of concluding
and winding-up any matters, including litigation, in which
Xxxxxxx has participated, supervised, or otherwise been
involved. Aero will reimburse Xxxxxxx for his actual out-of-
pocket expenses in connection with his activities pursuant to
this Section 17.
18. Aero's Representations and Warranties. Aero represents and warrants to
Aero as follows:
(a)Aero is a corporation duly organized and validly existing under the laws
of the State of Louisiana. Aero has the right, power and
authority to enter into this Agreement.
(b)The execution
and delivery of this Agreement by Aero, has been duly and
validly authorized by all requisite action of Aero and does not
contravene or breach any provision of Aero's certificate of
incorporation or bylaws.
(c)This Agreement
has been duly executed and delivered by Aero and constitutes a
legal, valid and binding obligation of Aero, enforceable against
Aero in accordance with its terms.
19. Representations and Warranties of Xxxxxxx and TigerAir. Xxxxxxx and
TigerAir represent and warrant to Aero as follows:
(a)TigerAir is
a corporation duly organized, validly existing and in good
standing under the laws of the State of Texas, and has all
requisite corporate power and authority to enter into this
Agreement, and to purchase and assume the Sublease, the Option
Agreement, the Exxon Fuel Supply Contract, and the AvFuel
Refueler Agreements, together with all of Aero's rights and
obligations under and with respect to each of the foregoing, and
to perform and carry out all of its duties and obligations in
the transactions contemplated by this Agreement.
(b)The execution,
delivery and performance of this Agreement and the consummation
of transactions on the part of TigerAir herein contemplated have
been duly authorized by all necessary corporate action on the
part of TigerAir. This Agreement, and the other documents to be
executed and delivered by TigerAir pursuant hereto, are the
legal, valid and binding obligations of TigerAir, enforceable in
accordance with their terms.
(c)The execution
and delivery of this Agreement by TigerAir, and the performance
of its obligations hereunder, do not (i) contravene its articles
of incorporation or bylaws, or (ii) breach any contract or
agreement to which TigerAir is a party or by which it is bound.
(d)Xxxxxxx has
the right, power and authority to enter into this Agreement and
to perform and carry out all of his duties and obligations in
the transactions contemplated by this Agreement.
(e)The execution
and delivery of this Agreement by Xxxxxxx, and the performance
of his obligations hereunder, do not contravene or breach any
contract or agreement to which Xxxxxxx is a party or by which he
is bound.
(f)This Agreement
has been duly executed and delivered by TigerAir and Xxxxxxx and
constitutes the legal, valid and binding obligation of each of
TigerAir and Xxxxxxx, enforceable against TigerAir and Xxxxxxx
in accordance with its terms.
(g)Neither
TigerAir nor Xxxxxxx have any knowledge of any actions,
proceedings or investigations pending or threatened against or
involving TigerAir and/or Xxxxxxx (including any bankruptcy
proceeding) before any court, arbitrator, administrative agency
or other governmental authority which would adversely affect
TigerAir's ability to assume, and perform under, the Sublease,
the Option Agreement, the Exxon Fuel Supply Contract, and the
AvFuel Refueler Agreements.
20. Covenant Not to Compete. Aero covenants and agreed that for a
period of three (3) years from the Closing Date, Aero will not,
directly or indirectly, at the Houston Hobby Airport, engage in,
or own (excluding passive investment interests of publicly-
traded and registered under Section 12 of the Securities
Exchange Act of 1934, as amended), manage, operate, control or
participate in the ownership, management, operation or control
of or otherwise be connected in any manner with any business
which engages in any activity that is directly or indirectly
competitive with the fixed base operation business of TigerAir
at the Houston FBO.
21. Salary Cap. TigerAir and Xxxxxxx covenant and agree that so
long as there exists an outstanding balance under the Acquisition
Promissory Note or the Working Capital Loan, Xxxxxxx shall not
be paid a salary by TigerAir that exceeds his current salary as
President of Aero.
22. Insurance. At TigerAir's own cost and expense, TigerAir shall
maintain at all times during which there is a balance outstanding under
the Acquisition Promissory Note and the Working Capital Note
Agreement (i) all-risk property and casualty insurance against
loss, destruction or damage to the Houston FBO for the
replacement value thereof, (ii) comprehensive general liability
insurance (on an occurrence basis), with policy limits not less
than Two Million Dollars ($2,000,000) per occurrence, which
shall cover risks of bodily injury and property damage arising
out of the condition, maintenance, use or operation of Houston
FBO, (iii) workers' compensation insurance required by
applicable law, (iv) all-risk builder's risk insurance during
any construction at the Houston FBO, (v) business interruption
insurance in amounts sufficient to cover debt service, lease
payments, property taxes, insurance and general operating
expenses of the Houston FBO, and (vi) such other insurance Aero
may reasonably require, all (except workers' compensation
insurance) naming Aero as additional loss payee or additional
insured, as applicable. At the request of Aero, from time to
time, TigerAir shall furnish to Aero with a certificate signed
by a duly authorized representative of each insurer showing the
insurance then maintained by TigerAir, and stating that such
insurance complies with the terms of this Section 22, together
with evidence that payment of the premiums on such insurance is
current. If TigerAir shall fail to maintain insurance as
provided by this Section 22, then Aero may at its option
maintain the insurance required by this Section 22 and, in such
event, TigerAir shall reimburse Aero on demand for the
reasonable cost of such insurance together with interest at the
rate of nine and one-half percent (9.5%) per annum. Each policy
for insurance described in this Section 22 shall provide that,
if any premium or installment is not paid when due, or if such
insurance is to be canceled, terminated or materially changed
for any reason whatsoever, the insurer will notify Aero at least
thirty (30) days prior to such cancellation, termination or
change.
23. Indemnification. In addition to the other obligations and
covenants of TigerAir and Xxxxxxx hereunder, TigerAir and Xxxxxxx agree to
indemnify, hold harmless and defend Aero and its directors,
officers, agents and employees, from and against any and all
losses, costs, damages, liabilities or expenses (including, but
not limited to, experts', consultants' and attorneys' fees and
costs) arising out of or related to the Transferred Rights, the
Transferred Assets, and the Assumed Obligations.
24. Broker. Each of the parties hereto represents and warrants
to the other that neither such party nor any director, officer or agent
of such party, as the case may be, has entered into any
agreement for the payment of any brokerage or finder's fees to
any person, firm or corporation in connection with the
transactions contemplated by this Agreement, and each agrees to
indemnify and hold and save the other harmless from any such
fees (including reasonable attorneys' fees and other expenses
incurred in connection with any such claim) which may be due or
asserted by reason of any such agreement or purported agreement
by the indemnifying party.
25. Further Assurances. Each party shall, at the request of the
other, at any time and from time to time prior to or following the
Closing, execute and deliver to the requesting party all such
further instruments as may be reasonably necessary or
appropriate in order effectuate or confirm the transactions
herein contemplated.
26. Notices. All
notices, requests, demands, directions and other communications
required or permitted under the provisions of this Agreement, or
otherwise with respect hereto, shall be in writing and shall be:
(i) mailed by first class registered or certified mail, return
receipt requested, postage prepaid; or (ii) sent by next day
business courier (such as Federal Express or the like); or (iii)
personally delivered; or (iv) transmitted by fax, telegram or
telex (with a hard copy to follow within twenty-four (24) hours
by first class registered or certified mail, return receipt
requested, postage prepaid, or by next day business courier
[such as Federal Express or the like], or by personal delivery),
as follows:
if to Aero, to:
Aero Services International, Inc.
000 Xxxxxx-Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx
One South Market Square Building
213 Market Street, P. O. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxxxxxx X. Xxxxxxx, Esquire
Facsimile: (000) 000-0000
if to TigerAir or Xxxxxxx, to:
Xxxxxxx X. Xxxxxxx
0000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxx, Esq.
0000 Xxxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
or to such other address(es) or to the attention of such other
person(s) and officer(s) as the addressee of any such notice
shall have previously furnished to the sender in writing. Each
notice or communication which shall be transmitted in the manner
described above, or which shall be delivered to a telegraph
company, shall be deemed sufficiently given, served, sent, or
received for all purposes at such time as it is sent to the
addressee (with return receipt, delivery receipt [or with
respect to a telex the answer back, or a fax the activity
report] being deemed conclusive evidence of such mailing,
transmission or delivery), or at such time as delivery is
refused by the addressee on presentation.
27. Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the internal, substantive laws of
the Commonwealth of Pennsylvania, including its statutes of
limitation, but without regard to its rules governing conflict
of laws.
28. Assignment; Binding Effect. This Agreement may not be assigned
by either party hereto without the prior written consent of the
other, which consent shall not be unreasonably withheld.
29. Partial Invalidity. If any term, provision, covenant or condition of
this Agreement, or any application thereof, should be held by a
court of competent jurisdiction to be invalid, void or
unenforceable, shall continue in full force and effect and shall
in no way be affected, impaired or invalidated.
30. Headings. The section headings appearing herein are for the
convenience of reference only, and in no way whatsoever define,
limit or describe the scope or intent of this Agreement.
31. Entire Agreement; Amendment; Waiver. This Agreement constitutes the
entire agreement between the parties pertaining to the subject
matter contained herein and supersedes all prior agreements,
informational memoranda, representations and understandings of
the parties. No amendment or modification of this Agreement
shall be binding unless executed in writing by the parties.
Except as may be otherwise provided in this Agreement, no waiver
of any of the provisions of this Agreement shall be deemed, or
shall constitute, a waiver of any other provision, whether or
not similar, nor shall any waiver constitute a continuing
waiver, and no waiver shall be binding unless evidenced by an
instrument in writing executed by the party against whom the
waiver is sought to be enforced.
32. Counterparts. This Agreement may be executed in any number of
counterparts, with each such counterpart being deemed to be an
original instrument.
33. Confidentiality. Neither party shall provide this Agreement or a copy
or summary hereof to any person or entity or disclose its
existence or any of the provisions thereof without the prior
written consent of the other, except as may be required by law
or order of court.
IN WITNESS WHEREOF, and intending to be legally bound
hereby, the parties have executed this Agreement as of the date
first set forth above.
AERO SERVICES
INTERNATIONAL, INC.
xxxxxxxxxx Xxxxxxx By: Xxxx X. Xxxxx
Secretary Its: Assistant Secretary
TIGERAIR, INC.
Xxxxxxx X. Xxxxxx By: W. E. Xxxxxxx
Assistant Secretary Its:President
Xxxxxxx X. Xxxxxx W. E. Xxxxxxx
Witness
Xxxxxxx X. Xxxxxxx
