Exhibit 10.1
SALE OF ASSETS AGREEMENT
This Sale of Assets Agreement is entered into this 15 day of April, 2002 by and
among Hamilton Aviation, Inc., an Arizona corporation ("Seller"), Hamilton
Aerospace Technologies, Inc., a Delaware corporation, or its assignees
("Purchaser").
WHEREAS, the Seller is engaged in the business of aircraft maintenance,
inspection and repairs and is the owner of assets including, but not limited to
equipment, inventories, property, contract rights, leasehold interests and
miscellaneous assets used in connection with the operation of its business;
WHEREAS, the Seller principally conducts its business at 6901 S. Park Avenue,
Tucson, AZ 85706;
WHEREAS, the Purchaser desires to purchase, and the Seller desires to sell, only
those assets used or useful, or intended to be used, in the operation of the
Purchaser's business; and
NOW THEREFORE, IT IS AGREED AS FOLLOWS:
Section 1. Assets Purchased.
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The Seller agrees to sell to the Purchaser and the Purchaser agrees to purchase
from the Seller, on the terms and conditions set forth in this Agreement, only
those assets specified and set forth on Schedule 1 hereto ("Purchased Assets").
Section 2. Excluded Assets. Excluded from this sale and purchase are the
Seller's accounts receivable, cash, notes receivable, prepaid accounts,
intangibles, businesses as a going concern, intellectual property, the corporate
seals, minute books, stock transfer books, and (except as otherwise provided
herein), other records related exclusively to the organization, existence or
share capitalization of the Seller, its affiliates, subsidiaries, and any other
assets of the business specified in Schedule 1 hereto. The Seller shall make its
general ledger and other accounting records available for inspection by the
Purchaser from time to time upon reasonable request.
Section 3. Liabilities Not Assumed.
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3.1 At Closing, the Purchaser agrees to assume and pay, discharge or perform, as
appropriate, only the liabilities and obligations of the Seller specifically
itemized on Schedule 3 hereto ("Assumed Liabilities"). Purchaser shall not be
responsible or liable for any of Seller's other liabilities whatsoever.
3.2 Further to Section 3.1 without limiting the generality thereof, the
Purchaser shall not assume, agree to pay, discharge or perform, or incur, as the
case may be, any of the following liabilities:
PAGE 1 - SALES OF ASSETS AGREEMENT
3.2.1 any liabilities (including principal and interest) arising out of loans
and other indebtedness owing to any person or entity, unless on Assumed
Liability;
3.2.2 any liabilities whatsoever of the Seller incurred or accrued prior to the
Closing, including but not limited to work in progress, unless an Assumed
Liability; and
3.2.3 any liability or obligation whatsoever owing to current or former
employees of the Seller and/or arising out of or in connection with any employee
benefit plan.
3.3 The obligations of the Purchaser under this Section are subject to whatever
rights the Purchaser may have under this Agreement or otherwise for breach by
the Seller of any representation, warranty, covenant or agreement contained in
this Agreement, including but not limited to any right of indemnification
provided by this Agreement.
Section 4. Purchase Price. The purchase price for the Purchased Assets shall be
$1.5 Million, allocated as follows:
Inventory: $300,000.
Equipment: $1.2 Million
Section 5. Payment of Purchase Price. The purchase price for the Assets shall be
paid as follows:
5.1 At the execution of this Agreement, the Purchaser shall provide to Seller a
debenture from the publicly traded company known as "OMAC" to be held in escrow
until all of the Conditions Precedent to Purchaser's Obligations set forth in
Section 17 herein are satisfied and good and marketable title to the assets are
transferred to the Purchaser pursuant to Section 15.7 herein. The form of the
debenture is attached hereto in Schedule 5.1. The Purchaser shall also have the
option at its discretion to pay (but in no event should be required to pay) in
cash or by check either the full purchase price or any balance of the purchase
price at any time.
Section 6. Reserved
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Section 7. Use of Names. The Seller agrees that after the Closing it shall no
longer utilize the names "Hamilton," "Hamilton Aviation," "Gordon B. Hamilton,"
"Gordon D. Hamilton," "Hamilton Brothers" or "Hamilton Aeronautics" in any
manner whatsoever, and further agree to execute such assignments, instruments
and documents, including corporate dissolution documents, as may be necessary or
appropriate, in the Purchaser's sole and absolute discretion, to effectuate the
complete and permanent transfer of such names to Purchaser. Further, it is
agreed that Gordon D. Hamilton will divest himself of all ownership in Hamilton
Brothers and cause Hamilton Brothers to change its name such that the name
"Hamilton" does not appear.
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Section 8. Other Agreement. At Closing, the parties shall execute additional
agreements as listed in Schedule 8 hereto, "Additional Agreements."
Section 9. Reserved
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9.2 Additional Documents. At Closing, the parties shall execute appropriate
documents to be filed with the agencies which record title to motor vehicles,
planes, boats and other property being transferred that will effect a transfer
of title to the Assets. The Seller shall pay all fees and other costs incurred
in connection with the filing of and transfer of title and registration.
9.3 Reserved.
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Section 10. Reserved.
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Section 11. Closing.
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11.1 Time and Place. The closing ("Closing") of the sale and purchase of the
Assets shall take place at the premises of the Seller or such other location as
designated by Purchaser as soon as the parties can reasonably schedule after the
Conditions Precedent to Purchaser's Obligations set forth in Section 17 herein
are satisfied and good and marketable title to the assets are transferred to the
Purchaser pursuant to Section 15.7 herein. Closing must occur, however, on or
before July 15, 2002, unless further extended by the mutual written agreement of
the parties.
11.2 Obligation of Seller at the Closing. At the Closing, the Seller shall
deliver to the Purchaser the following:
11.2.1 one or more Bills of Sale from the Seller conveying all of the Assets to
the Purchaser, in the form as set forth in Schedule 11.2;
11.2.2 a copy of the resolutions of the Seller, authorizing the execution,
delivery and performance of this Agreement and any other agreement to be entered
into by the Seller in connection herewith, and the transactions contemplated
hereby;
11.2.3 Reserved
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11.2.4 Any other documents as set forth in Schedule 11.2.4 ("Other Closing
Documents"); and
11.2.5 such other assignments, bills of sale, instruments of conveyance,
certificates of officers and other documents as reasonably may be requested by
the Purchaser prior to the Closing to consummate this Agreement and the
transactions contemplated hereby.
11.3 Obligations of Purchaser at the Closing. At the Closing, the Purchaser
shall execute, or cause to be executed, and shall deliver to the Seller the
following:
PAGE 3 - SALES OF ASSETS AGREEMENT
11.3.1 Reserved;
11.3.2 Reserved;
11.3.3 Debenture; and
11.3.4 such certificates of officers and other documents as reasonably may be
requested by the Seller prior to the Closing to consummate this Agreement and
the transactions contemplated hereby.
Section 12. Seller's Obligation Prior to Closing.
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12.1 Seller's Operation of Business Prior to Closing. The Seller agree that
between the date of this Agreement and the Closing Date, the Seller will:
12.1.1 Reserved
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12.1.2 Not assign, sell, lease or otherwise transfer or dispose of any of the
assets used in the performance of its business, whether now owned or hereafter
acquired, without approval in advance in writing by Purchaser.
12.1.3 Maintain all of its assets other than inventories in their present
condition, reasonable wear and tear and ordinary usage excepted, and maintain
the inventories at levels normally maintained.
12.2 Access to Premises and Information. At reasonable times prior to the
Closing Date, the Seller will provide the Purchaser and its representatives with
reasonable access during business hours to the assets, titles, contracts and
records of the Seller and furnish such additional information concerning the
Seller's business as the Purchaser from time to time may reasonably request.
12.3 Conditions and Best Efforts. The Seller will use his best efforts to
effectuate the transactions contemplated by this Agreement and to fulfill all
the conditions of the obligations of the Seller under this Agreement, and will
do all acts and things as may be required to carry out his respective
obligations under this Agreement and to consummate and complete this Agreement.
Section 13. Covenants of Purchaser Prior to Closing.
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13.1 Conditions and Best Efforts. The Purchaser will use its best efforts to
effectuate the transactions contemplated by this Agreement and to fulfill all
the conditions of the Purchaser's obligations under this Agreement, and shall do
all acts and things as may be required to carry out the Purchaser's obligations
and to consummate this Agreement.
13.2 Confidential Information. If for any reason the sale of Assets is not
necessarily closed, the Purchaser will not disclose to third parties any
confidential information received from the Seller in the course of
investigating, negotiating and performing the transactions contemplated by this
Agreement, in an intentional manner so as to harm Seller's business.
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Section 14. Rights and Obligations Subsequent to Closing.
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14.1 Reserved.
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14.2 Seller's Right to Pay. In the event the Purchaser fails to make any payment
of taxes, assessments, insurance premiums or other charges that the Purchaser is
required to pay to third parties under this Agreement, the Seller shall have the
right, but not the obligation, to make such payment. The Purchaser will
reimburse the Seller for any such payment immediately upon the Seller's demand,
together with interest at the prevailing rate from the date of the Seller's
payment until the date the Purchaser reimburses the Seller. Any such payment by
the Seller shall not constitute a waiver by the Seller of any remedy available
by reason of the Purchaser's default for failure to make such payment.
Section 15. Seller's Representations and Warranties. The Seller represents and
warrants to the Purchaser as follows:
15.1 Corporate Existence. The Seller is now, and on the Closing Date will be, a
corporation duly organized, validly existing and in good standing under the laws
of the State of Arizona, has all requisite corporate power and authority to own
its properties and assets and carry on its business and is good standing in each
jurisdiction in which such qualification is required.
15.2 Corporation Power and Authorization. The Seller has full corporate
authority to execute and deliver this Agreement and any other agreement to be
executed and delivered by the Seller in connection herewith, and to carry out
the transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary corporate action. The appropriate corporate
resolution is attached as Schedule 15.2. No other corporate proceedings by the
Seller will be necessary to authorize this Agreement or the carrying out of the
transactions contemplated hereby. This Agreement constitutes a valid and binding
Agreement of the Seller in accordance with its terms.
15.3 Conflict with Other Agreements, Consents and Approvals. With respect to (I)
the articles of incorporation or bylaws of the Seller, (ii) any applicable law,
statute, rule or regulation, (iii) any contract to which the Seller is a party
or may be bound, or (iv) any judgment, order, injunction, decree or ruling of
any court or governmental authority to which the Seller is a party or subject,
the execution and delivery by the Seller of this Agreement and any other
agreement to be executed and delivered by the Seller in connection herewith and
the consummation of the transactions contemplated hereby will not (a) result in
any violation, conflict or default, or give to others any interest or rights,
including rights of termination, cancellation or acceleration, (b) require any
authorization, consent, approval, exemption or other action by any court or
administrative or governmental body which has not been obtained, or any notice
to or filing with any court or administrative or governmental body which has not
been given or done, or (c) except as set forth on Schedule 15.3, require the
consent of any third party.
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15.4 Compliance with Law. The Seller's use and occupancy of the Assets, wherever
located, has been in compliance with all applicable federal, state, local or
other governmental laws or ordinances, the non-compliance with which, or the
violation of which, might have a material adverse affect on the Assets, the
Assumed Liabilities or the financial condition, results of operations or
anticipated business prospects of the Purchaser, and the Seller has received no
claim or notice of violation with respect thereto. Without in any way limiting
the generality of the foregoing, the Seller is in compliance with, and is
subject to no liabilities under, any and all applicable laws, governmental
rules, ordinances, regulations and orders pertaining to the presence,
management, release, discharge or disposal of toxic or hazardous waste material
or substances, pollutants (including conventional pollutants) and contaminants.
The Seller has obtained all material permits, licenses, franchises and other
authorizations necessary for the conduct of its business.
15.5 Financial Statements. Attached hereto on Schedule 15.5 are the Seller's
management certified financial statements for the periods 1998 - 2001
("Financial Statements"). The Financial Statements are in accordance with the
books and records of the Seller and are true, correct and complete; fairly
present financial conditions of the Seller at the dates of such Financial
Statements and the results of its operations for the periods then ended; and
were prepared in accordance with generally accepted accounting principles
applied on a basis consistent with prior accounting periods. Except as described
in this Agreement, since December 31, 2001 there has been no material adverse
change in the financial condition of the Seller.
15.6 Tax and Other Returns and Reports. (I) All federal, state, local and
foreign tax returns and reports (including without limitation all income tax,
social security, payroll, unemployment compensation, sales and use, excise,
privilege, property, ad valorem, franchise, license and school) required to be
filed by the Seller by the Closing ("Tax Returns") have been filed with the
appropriate governmental agencies in all jurisdictions in which such returns and
reports are required to be filed, and all such returns and reports properly
reflect the taxes of the Seller for the periods covered thereby; (ii) all
federal, state and local taxes, assessments, interest, penalties, deficiencies,
fees and other governmental charges or impositions, including those enumerated
above with respect to the Tax Returns, which are called for by the Tax Returns,
or which are claimed to be due from the Seller by notice from any taxing
authority, or upon or measured by its properties, assets or income ("Taxes"),
have been properly accrued or paid by or at the Closing if then due and payable
except as set forth in Schedule 15.7; and (iii) the reserves for Taxes contained
in the Financial Statements are adequate to cover the tax liabilities of the
Seller as of that date, and nothing other than tax on operations subsequent to
the date of the Financial Statements has occurred subsequent to that date to
make any of such reserves inadequate.
15.7 Title to Assets. Except as described in Schedule 1 of this Agreement, the
Seller holds good and marketable title to the Assets, free and clear of
restrictions on or conditions to transfer or assignment, and free and clear of
liens, pledges, charges or encumbrances, except for the liens identified in
Schedule 15.7.
PAGE 6 - SALES OF ASSETS AGREEMENT
15.8 Reserved
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15.9 Labor Agreements and Disputes. The Seller is not aware of any labor dispute
or labor trouble involving The Seller is neither a party to, nor otherwise
subject to any collective bargaining or other agreement governing the wages,
hours and terms of employment of the Seller's employees. employees of the
Seller, nor has there been any such dispute or trouble during the 3 years
preceding the date of this Agreement, except as provided in the attached
Schedule 15.9.
15.10 Reserved.
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15.11 Reserved
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15.12 Government Contracts. Except as disclosed in Schedule 15.12, to the best
knowledge of the Seller, the Seller has not entered into any contract with the
United States government or and agency, department, instrumentality, prime
contractor or higher-tier subcontractor thereof ("Government Contract"). The
Seller is not a party to any Governments Contracts that require access to
classified information, and there are no security clearances necessary for the
operation of the Seller's business. To the best knowledge of the Seller, and
except as disclosed on Schedule 15.12, there are no outstanding quotations, bids
or proposals submitted by he Seller to any agency, department or instrumentality
of the United States government or to a prime contractor or higher-tier
subcontractor thereof.
15.13 Litigation. The Seller has no knowledge of any claim, litigation,
proceeding or investigation pending or threatened against the Seller that might
result in any material adverse change in the business or condition of Assets
being conveyed under this Agreement, except as set forth and disclosed in
Schedule 15.13.
15.14 Environmental Issues.
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15.14.1 Except as set forth in Schedule 15.14, the Seller's business and Assets
are in compliance with all Environmental Laws and the Seller has obtained all
permits required under the Environmental Laws in connection with the
construction, ownership and operation of the Assets and the Seller's business.
The Seller has not received, nor is aware of, any notice of any past, present or
anticipated future events, conditions, activities, investigations, plans,
studies or proposals which (I) would interfere with or prevent compliance by the
Seller or the Assets with any Environmental Law, or (b) may give rise to any
common law or statutory liability, or otherwise form the basis of a claim,
action, suit, proceeding, investigation or hearing, involving the Seller or the
Assets and related in any way to Hazardous Substances or Environmental Laws.
15.14.2 Except as set forth on Schedule 15.14, no Hazardous Substance has been
disposed of, spilled, leaked or otherwise released on, in, under, or from, or
otherwise come to be located in the soil or water on or under, the real property
PAGE 7 - SALES OF ASSETS AGREEMENT
owned, leased or otherwise occupied by the Seller in connection with the
Seller's business, now or in the past. Except as set forth in Schedule 15.14,
all wastes generated in connection with the Seller's business are and have been
transported to and disposed of at an authorized waste disposal facility in
compliance with all Environments Laws. Except as set forth in Schedule 15.14,
none of the Assets have incorporated into them any lead-based paint, urea
formaldehyde foam insulation, asbestos, polychlorinated biphenyls or any other
Hazardous Substance that is prohibited, restricted or regulated when present in
buildings, structures, fixtures or equipment. Except as set forth in Schedule
15.14, the Seller is not liable under any Environmental Law for remedial,
removal, investigation or other response costs, natural resources damages, or
other claims arising out of the release or threatened release of any Hazardous
Substance at any real property owned, leased or otherwise occupied by the Seller
or at any other real property site, now or in the past, and no basis exists for
any such liability.
15.14.3 Except as set forth in Schedule 15.14, there are no underground storage
tanks (in or out of service) on any real property owned, leased or otherwise
occupied by the Seller's business.
15.14.4 Except as set forth on Schedule 15.14, the Seller has disclosed and made
available to the Purchaser true, correct and complete copies or results of any
and all studies, reports, monitoring, tests, analysis, correspondence with
governmental agencies or other documents in its possession or initiated by the
Seller or otherwise known to the Seller and pertaining to the existence or
Hazardous Substances, to compliance with Environmental Laws or to any other
environmental concern relating to the Assets or the Seller's business.
15.14.5 For purposes of this Agreement, "Environmental Laws" shall mean any
federal, state or local statute, ordinance or regulation pertaining to the
protection of human health or the environment and any applicable orders,
decrees, permits, judgments, licenses or other authorizations or mandates under
such statutes, ordinances or regulations.
15.14.6 For purposes of this Agreement, "Hazardous Substance" shall mean any
toxic, infectious, hazardous or radioactive substance, pollutant, contaminant,
material or waste as defined, listed or regulated under any Environmental Law.
15.15 Brokerage. The Seller has not employed any broker, finder or similar agent
in connection with the transactions contemplated by this Agreement, or taken
action that would give rise to a valid claim against any party for a brokerage
commission, finder's fee or similar compensation.
15.16 Accuracy of Representations and Warranties. None of the representations or
warranties of the Seller contain or will contain any untrue statement of a
material fact or omit or will omit or misstate a material fact necessary in
order to make statements in this Agreement not misleading. The Seller knows of
no fact that has resulted, or that in reasonable judgment will result in, a
material change in the business, operations or assets of the Seller that has not
been set forth in this Agreement or otherwise disclosed to the Purchaser.
PAGE 8 - SALES OF ASSETS AGREEMENT
Section 16. Representations of Purchaser. The Purchaser represents and warrants
as follows:
16.1 Corporate Existence. The Purchaser is now, and on the Closing Date will be,
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, has all requisite corporate power and authority
to enter into this Agreement and perform its obligations hereunder.
16.2 Authorization. The Purchaser has full corporate authority to execute and
deliver this Agreement and any other agreement to be executed and delivered by
the Purchaser in connection herewith, and to carry out the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action. No other corporate proceedings by the
Purchaser will be necessary to authorize this Agreement or the carrying out of
the transactions contemplated hereby. This Agreement and the Agreement of
Unconditional Guaranty each constitute a valid and binding Agreement of the
Seller, respectively, in accordance with its terms.
16.3 Conflict with Other Agreements, Consents and Approvals. With respect to (I)
the articles of incorporation or bylaws of the Purchaser, (ii) any applicable
law, statute, rule or regulation, (iii) any contract to which the Purchaser is a
party or may be bound, or (iv) any judgment, order, injunction, decree or ruling
of any court or governmental authority to which the Purchaser is a party or
subject, the execution and delivery by the Purchaser of this Agreement and any
other agreement to be executed and delivered by the Purchaser in connection
herewith and the consummation of the transactions contemplated hereby will not
(a) result in any violation, conflict or default, or give to others any interest
or rights, including rights of termination, cancellation or acceleration, or (b)
require any authorization, consent, approval, exemption or other action by any
court or administrative or governmental body which has not been obtained, or any
notice to or filing with any court or administrative or governmental body which
has not been given or done.
16.4 Reserved.
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16.5 Brokerage. The Purchaser has not employed any broker, finder or similar
agent in connection with the transactions contemplated by this Agreement, or
taken action that would give rise to a valid claim against any party for a
brokerage commission, finder's fee or similar compensation.
16.6 Accuracy of Representations and Warranties. None of the representations or
warranties of the Purchaser contain or will contain any untrue statement of a
material fact or omit or will omit or misstate a material fact necessary in
order to make the statements contained herein not misleading.
PAGE 9 - SALES OF ASSETS AGREEMENT
Section 17. Conditions Precedent to Purchaser's Obligations. The obligation of
the Purchaser to purchase the Assets is subject to the fulfillment, prior to or
at the Closing Date, of each of the following conditions, any one or portion of
which may be waived in writing by the Purchaser:
17.1 Representations, Warranties and Covenants of Seller. The representations
and warranties of the Seller contained herein and the information contained in
the Schedules and any other documents delivered by the Seller in connection with
this Agreement shall be true and correct in all material respects at the
Closing; and the Seller shall have performed all obligations and complied with
all agreements, undertakings, covenants and conditions required by this
Agreement to be performed or complied with by it or prior to the Closing.
17.2 Reserved
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17.3 Licenses and Permits. The Purchaser shall have obtained all licenses and
permits from public authorities necessary to authorize the ownership and
operation of the business of the Seller, including all of the FAA Certifications
set forth in Schedule 17.3, "FAA Certifications". The Purchaser shall have
obtained a lease for the Seller's premises from the Tucson Airport Authority,
which is acceptable to the Purchaser.
17.4 Reserved.
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17.5 Reserved
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17.6 Opinion of Counsel for Seller. The Seller shall have furnished the
Purchaser with an opinion of counsel for the Seller in form and substance
reasonably satisfactory to the Purchaser's counsel to the effect that (I) the
representations and warranties contained in Sections 15.1 and 15.2 are true; and
(ii) the instruments of conveyance and transfer to be delivered to the Purchaser
at Closing are effective to vest in the Purchaser all of the Seller's right,
title and interest in and to the Assets.
17.7 No Suits or Actions. At the Closing Date no suit, action or other
proceeding shall have been threatened or instituted to restrain, enjoin or
otherwise prevent the consummation of this Agreement or the contemplated
transactions.
17.8 Additional Conditions Precedent. The Purchaser's obligations under this
Agreement are further subject to and conditioned upon (I) receipt of a
Facilities Report which is acceptable to the Purchaser, (ii) receipt of an
Accountant's Report which is acceptable to the Purchaser, (iii) the approval by
all of the applicable regulatory authorities of the Purchaser conducting its
aircraft repair station business at the premises, (iv) the method of settlement
with Seller's creditors must be acceptable to Purchaser, including but not
limited to the IRS, and (v) the release of all liens and claims by Seller's
creditors including the IRS.
PAGE 10 - SALES OF ASSETS AGREEMENT
Section 18. Conditions Precedent to Obligations of the Seller. The obligations
of the Seller to consummate the transactions contemplated by this Agreement are
subject to the fulfillment, prior to or at the Closing Date, of each of the
following conditions, any one or a portion of which may be waived in writing by
the Seller;
18.1 Representations, Warranties and Covenants of Purchaser. All representations
and warranties made in this Agreement by the Purchaser shall be true as of the
Closing Date as fully as though such representations and warranties had been
made on and as of the Closing Date, and the Purchaser shall not have violated or
shall not have failed to perform in accordance with any covenant contained in
this Agreement.
18.2 Opinion of Counsel for Purchaser. The Purchaser shall have furnished the
Seller with an opinion of counsel in form and substance reasonably satisfactory
to the Seller's counsel to the effect that the representations and warranties
contained in Sections 16.1 and 16.2 are true.
18.3 Reserved.
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Section 19. Purchaser's Acceptance. The Purchaser represents and acknowledges
that it has entered into this Agreement on the basis of its own examination,
personal knowledge and opinion of the value of the Purchased Assets. The
Purchaser has relied upon additional representations made by the Seller in
addition to those specified in this Agreement. The Purchaser further
acknowledges that the Seller has not made any agreement or promise to repair or
improve any of the leasehold improvements, equipment or other personal property
being sold to the Purchaser under this Agreement, and that the Purchaser takes
all such property in the condition existing on the date of this Agreement,
except as otherwise provided in this Agreement.
Section 20. Risk of Loss. The risk of loss, damage or destruction to any of the
equipment, inventory or other personal property to be conveyed to the Purchaser
under this Agreement shall be borne by the Seller to the time of Closing. In the
event of such loss, damage or destruction, the Seller, to the extent reasonable,
shall replace the lost property or repair or cause to repair the damaged
property to its condition prior to the damage. If replacement, repairs or
restorations are not completed prior to Closing, then the purchase price shall
be adjusted by an amount agreed upon by the Purchaser and the Seller that will
be required to complete the replacement, repair or restoration following
Closing. If the Purchaser and the Seller are unable to agree, then the
Purchaser, at its sole option and notwithstanding any other provision of this
Agreement, upon notice to the Seller, may rescind this Agreement and declare it
to be of no further force and effect, in which event there shall be no Closing
of this Agreement and all the terms and provisions of this Agreement shall be
deemed null and void. If, prior to Closing, any of the real properties that are
the subject of the leases to be assumed by the Purchaser are materially damaged
or destroyed, then the Purchaser may rescind this Agreement in the manner
provided above unless arrangements for repair satisfactory to all parties
involved are made prior to Closing.
Section 21. Indemnification and Survival.
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PAGE 11 - SALES OF ASSETS AGREEMENT
21.1 Survival of Representations and Warranties. All representations and
warranties made in this Agreement shall survive the Closing of this Agreement,
except that any party to whom a representation or warranty has been made in this
Agreement shall be deemed to have waived any misrepresentation or breach of
representation or warranty of which such party had knowledge prior to Closing.
Any party learning of a misrepresentation or breach of representation or
warranty under this Agreement shall immediately give written notice thereof to
all other parties to this Agreement. The representations and warranties in this
Agreement shall terminate 3 years from the Closing Date, and such
representations or warranties shall thereafter be without force or effect,
except any claim with respect to which notice has been given to the party to be
charged prior to such expiration date.
21.2 Seller's Indemnification.
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21.2.1 The Seller hereby agrees to indemnify and hold the Purchaser, it
successors and assigns harmless from and against:
21.2.2 (I) Any and all damages, losses, claims, liabilities, deficiencies and
obligations of every kind and description, contingent or otherwise, arising out
of or related to the operation of the Seller's business prior to the close of
business on the day before the Closing Date, except for damages, losses, claims,
liabilities, deficiencies and obligations of the Seller expressly assumed by the
Purchaser under this Agreement, if any, (ii) any liability or obligation of the
Seller which is not an Assumed Liability, (iii) any and all damage or deficiency
resulting from any material misrepresentation, breach of warranty or covenant,
or nonfulfillment of any agreement on the part of the Seller under this
Agreement, and (iv) any and all actions, suits, claims, proceedings,
investigation, audits, demands, assessments, fines, judgments, costs and other
expenses (including, without limitation, reasonable audit and attorneys fees)
incident to any of the foregoing.
21.2.3 The Seller's indemnity obligations under Section 21.2 shall be subject to
the following:
(I) If any claim is asserted against the Purchaser that would give rise to a
claim by the Purchaser against the Seller for indemnification under the
provisions of this Section, then the Purchaser shall promptly give written
notice to the Seller concerning such claim and the Seller shall, at no expense
to the Purchaser, defend and otherwise be fully responsible for any such claim.
(ii) Reserved.
21.3 Purchaser's Indemnification. The Purchaser agrees to defend, indemnify, and
hold harmless the Seller from and against (I) any and all claims, liabilities
and obligations of every kind and description arising out of or related to the
operation of the business following Closing or arising out of the Purchaser's
failure to perform obligations of the Seller assumed by the Purchaser pursuant
PAGE 12 - SALES OF ASSETS AGREEMENT
to this Agreement; (ii) after the Closing, any liability or obligation of the
Seller which is an Assumed Liability, (iii) any and all damage or deficiency
resulting from any material misrepresentation, breach of warranty or covenant,
or nonfulfillment of any agreement on the part of the Purchaser under this
Agreement, and (iv) any and all actions, suits, claims, proceedings,
investigation, audits, demands, assessments, fines, judgments, costs and other
expenses (including, without limitation, reasonable audit and attorneys fees)
incident to any of the foregoing.
Section 22. Reserved
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Section 23. Default.
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23.1 Purchaser Default. If the Purchaser fails to perform any of the terms,
covenants, conditions or obligations of this Agreement, time of performance
being of the essence, then the Seller, subject to the requirement of the 10 day
written notice to the Purchaser, may have any remedy available in law or equity
to the Seller. The Purchaser shall not be deemed in default for failure to
perform the terms, covenants and conditions of this Agreement, until 10 day
written notice of the default has been given to the Purchaser and the Purchaser
has failed to cause or remedy the default within 10 days after the notice.
23.2 Seller Default. If the Seller fails to perform any of the terms, covenants,
conditions or obligations of this Agreement, time of performance being of the
essence, then the Purchaser, subject to the requirement of the 30 day written
notice to the Seller, may have any remedy available in law or equity to the
Purchaser. The Seller shall not be deemed in default for failure to perform the
terms, covenants and conditions of this Agreement, until 30 day written notice
of the default has been given to the Seller and the Seller has failed to cause
or remedy the default within 30 days after the notice. Further and in addition
to all such other legal and equitable remedies , Seller may declare this
Agreement null and void, after which all of Purchaser's obligations and
responsibilities under this Agreement shall cease and Purchaser shall have no
further obligations or responsibilities hereunder. Further and in addition to
all such other legal and equitable remedies, in such case, the Debenture shall
also effectively be declared null and void and Purchaser shall have no further
responsibility under the Debenture as well.
23.3 Cross-Default Provision. A default in this Agreement, shall constitute a
default in the other agreements described in this Agreement to be delivered by
the parties at Closing, and a default in any one or more of such agreements
shall constitute a default in this Agreement.
Section 24. Bulk Transfers. The parties agree that the Bulk Sales laws do not
apply to this transaction. Nevertheless, the Purchaser waives compliance by the
Seller with the Arizona Bulk Transfers Article of the Uniform Commercial Code,
and any other similar laws in any applicable jurisdiction if any are applicable
(collectively "Bulk Transfers Law") in respect to the transactions contemplated
by this Agreement. The Seller shall indemnify the Purchaser from, and hold it
PAGE 13 - SALES OF ASSETS AGREEMENT
harmless against, any liabilities, damages, costs and expenses resulting from or
arising out of (I) the parties' failure to comply with any Bulk Transfers Law
with respect to the transactions contemplated by this Agreement, or (ii) any
action brought or levy made as a result thereof, except for the Assumed
Liabilities. If the Seller fails to comply with the provisions of this Section
and the Purchaser is required to pay any creditor of the Seller in order to
protect the property purchased under this Agreement from claims or liens of the
Seller's creditors, except those assumed by the Purchaser, then the Purchaser
may offset the amount it pays against purchase price.
Section 25. Notices. Any notices permitted or required under this Agreement
shall be deemed given upon the date of personal delivery or when received by
trackable overnight carrier, addressed to Seller at:
Hamilton Aviation, Inc.
Attention: Gordon D. Hamilton, President
6901 S. Park Avenue
Tucson, AZ 85706
With a copy to:
Jeffrey H. Greenberg, Esq.
Leonard Felker Altfeld Greenberg & Battaile, P.C.
250 North Meyer Avenue
Post Office Box 191
Tuscon, Arizona 85702
addressed to the Purchaser at:
OMAC
Attention: Corwin Foster
445 E. Front Street
Traverse City, Michigan 49686
With copies to:
Ian M. Herman
3908 S. Ocean Blvd., Suite #1
Highland Beach, FL 33487
and
Brian A. Sullivan, Esquire
Werb & Sullivan
300 Delaware Avenue
10th floor
Wilmington, DE 19899
or at any other address as any party may, from time to time, designate by notice
given in compliance with this section.
PAGE 14 - SALES OF ASSETS AGREEMENT
Section 26 Time. Time is of the essence of this Agreement.
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Section 27 No Release. Both parties agree that the termination of this Agreement
or the expiration of the term of this Agreement shall not release either party
from any obligations under Sections 3, 15, 16.5, 20, 21.1, 21.2, 21.3, 23, 23.3,
24, and 25 through 47 herein.
Section 28 Survival. Any of the terms and covenants contained in this Agreement
which require the performance of either party after the Closing shall survive
the Closing and delivery of the deed.
Section 29 Waiver. Failure of either party at any time to require performance of
any provision of this Agreement shall not limit the party's right to enforce the
provision, nor shall any waiver of any breach of any provision be a waiver of
any succeeding breach of any provision or a waiver of the provision itself for
any other provision.
Section 30 Assignment. Seller may assign this agreement. Purchaser may not
transfer or assign this Agreement without the prior written consent of the
Seller.
Section 31 Law Governing. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware. Section 32 Venue. This
parties to this Agreement agree that any action on this Agreement shall be
brought in a court of competent jurisdiction located in New Castle County,
Delaware.
Section 33 Attorney Fees. In the event an arbitration, suit or action is brought
by any party under this Agreement to enforce any of its terms, or in any appeal
therefrom, it is agreed that the prevailing party shall be entitled to
reasonable attorneys' fees to be fixed by the arbitrator, trial court and/or
appellate court.
Section 34 Presumption. This Agreement or any section thereof shall not be
construed against any party due to the fact that said Agreement or any section
thereof was drafted by said party.
Section 35 Computation of Time. In computing any period of time pursuant to this
Agreement, the day of the act, event or default from which the designated period
of time begins to run shall be included, unless it is a Saturday, Sunday or a
legal holiday, in which event the period shall begin to run on the next day
which is not a Saturday, Sunday or a legal holiday, in which event the period
shall run until the end of the next day thereafter which is not a Saturday,
Sunday or legal holiday.
Section 36 Titles and Captions. All article, section and paragraph titles or
captions contained in this Agreement are for convenience only and shall not be
deemed part of the context nor affect the interpretation of this Agreement.
Section 37 Pronouns and Plurals. All pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine, neuter, singular or plural as the
identity of the Person or Persons may require.
PAGE 15 - SALES OF ASSETS AGREEMENT
Section 38 Entire Agreement. This Agreement contains the entire understanding
between and among the parties and supersedes any prior understandings and
agreements among them respecting the subject matter of this Agreement.
Section 39 Prior Agreements. This document is the entire, final and complete
agreement of the parties, and supersedes and replaces all prior or existing
written and oral agreements (including any earnest money agreement) between the
parties or their representatives relating to the Property.
Section 40 Modifications Must Be in Writing. This Agreement may not be changed
orally. All modifications of this Agreement must be in writing and must have be
signed by each party.
Section 41 Agreement Binding. This Agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of the parties hereto.
Section 42 Further Action. The parties hereto shall execute and deliver all
documents, provide all information and take or forbear from all such action as
may be necessary or appropriate to achieve the purposes of this Agreement.
Section 43 Good Faith, Cooperation and Due Diligence. The parties hereto
covenant, warrant and represent to each other good faith, complete cooperation,
due diligence and honesty in fact in the performance of all obligations of the
parties pursuant to this Agreement. All promises and covenants are mutual and
dependent.
Section 44 Counterparts. This Agreement may be executed in several counterparts
and all so executed shall constitute one Agreement, binding on all the parties
hereto even though all the parties are not signatories to the original or the
same counterpart.
Section 45 Facsimile Signatures. Facsimile transmission of any signed original
document, and the retransmission of any signed facsimile transmission, shall be
the same as delivery of the original signed document. At the request of any
party, a party shall confirm documents with a facsimile transmitted signature by
signing an original document.
Section 46 Parties in Interest. Nothing herein shall be construed to be to the
benefit of any third party, nor is it intended that any provision shall be for
the benefit of any third party.
Section 47 Savings Clause. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remainder of this Agreement, or the application of such provision
to persons or circumstances other than those as to which it is held invalid,
shall not be affected thereby.
PAGE 16 - SALES OF ASSETS AGREEMENT
Wherefore the parties hereto do set their hand and seal on the date indicated
below:
Seller: Purchaser:
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Hamilton Aviation, Inc. Hamilton Aerospace Technologies, Inc.
By: President By: President
Date: April 15, 2002 Date: April 15, 2002
PAGE 17 - SALES OF ASSETS AGREEMENT