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HomeMy WebLinkAboutResolution - 3895 - Assignment Of Lease - Wes-Tex Aircraft Inc To Aviation Properties - LIA - 05/28/1992Resolution No. 3895 May 28, 1992 Item #9 RESOLUTION WHEREAS, the City of Lubbock, Texas, entered into a Fixed Base Operator Agreement in April 1976 with Wes -Tex Aircraft, Inc. (hereinafter called "Lessee"); and WHEREAS, Lessee exercised an option to extend the term of the Agreement for 10 years in 1986; and WHEREAS, Lessee now desires to execute an Asset Purchase Agreement which generally assigns all of the company's rights and obligations under the Fixed Base Operator Agreement to Aviation Properties, a partnership, except for fuel storage tanks and that portion of the leased premises occupied by such storage tanks; and WHEREAS, Lessee has requested the City to approve of the assignment in accordance with a provision in the Fixed Base Operator Agreement requiring prior written consent to an assignment of any interest in the Lease; and WHEREAS, the City Council has determined that consenting to the assign- ment would be in the best interest of the citizens of the City provided the assignor removes the fuel storage tanks from the leased premises and cleans up any spills and leakage from such structures in compliance with all federal, state and local laws, ordinances, rules and regulations; NOW THEREFORE: BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the City Council hereby consents to the assignment of the Fixed Base Operator Agreement hereinabove referred to in accordance with the provi- sions contained in the Asset Purchase Agreement, attached hereto and made a part of this Resolution, under the following conditions: (1) Prior to the closing date expressed in the Asset Purchase Agreement, Lessee agrees in writing to remove, within ninety (90) days of such closing date and at no expense to the City, all of the fuel storage tanks from the leased premises in compliance with all federal, state and local laws, ordi- nances, rules and regulations; and (2) Prior to the closing date expressed in the Asset Purchase Agreement, Lessee agrees in writing to clean up, within ninety (90) days of such closing date and at no expense to the City, all spills and leakage from the fuel storage tanks (unless clean up is delayed for a longer period by the Texas Water Commission) in compliance with all federal, state and local laws, ordinances, rules and regulations; and (3) On or before the closing date expressed in the Asset Pur- chase Agreement, Lessee deposits the sum of FIVE THOUSAND AND NO/100 DOLLARS ($5,000.00) in escrow to ensure the re- moval, within ninety (90) days of such date, of all fuel storage tanks on the leased premises in compliance with all federal, state and local laws, ordinances, rules and regula- tions; and (4) Prior to the closing date expressed in the Asset Purchase Agreement, Lessee agrees in writing to continue paying rent on the 5,440 square feet of leased pemises which the fuel storage tanks occupy (at the same rate for ground rentals charged the assignee) until such time as the storage tanks are removed and all spills and leakage from such structures are cleaned up in compliance with all federal, state and local laws, ordinances, rules and regulations; and (5) Prior to the closing date expressed in the Asset Purchase Agreement, Lessee agrees in writing to remit to the City the sum placed in escrow in the event that all of the storage tanks on the leased premises have not been removed in accor- dance with this Resolution within ninety (90) days of the closing date. If all such storage tanks have been removed from the leased premises within ninety (90) days of the closing date, said sum placed in escrow shall be refunded to Lessee; and -2- (6) Prior to the closing date expressed in the Asset Purchase Agreement, Lessee agrees in writing to fully indemnify and hold harmless the City, its officers, agents and employees from any and all claims, damages, suits and causes of action whatsoever resulting from Lessee's use of that portion of the leased premises containing the fuel storage tanks and from any spills and leakage from such storage tanks. Passed by the City Council on this ATTEST: ,APPROVED AS'TO CONTENT: KA, 6---2— ern Case, Director of Aviation APPROVED AS TO FORM: w ��o 4 Harold a ss stant ty Attorney aw:je/WEs-r$x.REs/n2-Agenda - 3 - ASSET PURCHASE AGREET This Asset Purchase Agreement ("Agreement") effective as of , 1992 by and between Wes -Tex Aircraft, Inc. ("Seller"), Roy K. Doshier ("boshier"), Kent Copeland ("Copeland") and Aviation Properties, a partnership ('Buyer") is as follows: WHEREAS, Buyer desires to purchase from Seller, and Seller desires to sell to Buyer, certain assets of Seller used in its business, according to the terms and conditions described herein; NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties agree as follows: 1. Sale and Purchase of Assets. Subject to the terms and conditions of this Agreement, Seller hereby agrees to sell, transfer, assign, convey and deliver to Buyer, and Buyer hereby agrees to purchase, accept and Acquire from Seller, on the Closing Date (as defined below), the following assets (sometimes collectively referred to herein as the "Assets"): (a) Certain real property owned by the Seller, consisting of (i) all of the Sellers rights and obligations under the Fixed Base Operator Agreements dated April 1, 1976 between Wes -Tex. Aircraft, Inc. ("Ground Lessee") and the City of Lubbock ("Ground Lessor") together with all rights and appurtenances thereto (the "Ground Leases"), and (ii) improvements and fixtures located on the Ground Leases, including one building (the "Office Building"), and (iii) excluding the fuel storage tanks and that portion of the leased premises which the fuel storage tanks occupy (as more fully described in the Partial Assignment of Ground Leases to be executed between the parties as of the Closing Date). (b) All of the equipment and inventory of Seller, as listed on Schedule A attached hereto (the "Equipment" and "Inventory"). (c) All existing licenses, contracts and agreements -between Seller and third parties that are listed on Schedule B (the "Assigned'Contraets"). The Assets shall be transferred to Buyer free and clear of all liens, claims and encumbrances. 2. Purchase Price. M7 e Assets. 3. Liabilities. Buyer does not assume or agree to pay, perform or discharge any liabilities or obligations of Seller, whether accrued, absolute, contingent or otherwise, except (i) Seller's obligations for all periods after the Closing Date under the Ground Leases as set forth in the Partial Assignment of Ground Leases and (ii) Seller's liabilities and obligations under the Assigned Contracts for all periods after the Closing Date. 4. Clo2ing. The closing of the transactions contemplated under this Agreement shall take place on June 1, 1992 (the "Closing Date"). 1 APR 24 '92 14:44 H$ILEVIE HERO P. c 5. Representations and Warranties of Spller. Seller hereby represents and warrants that the following will . be true and correct as of the Closing Date: (a) Organization. Seller is a corporation duly organized, validly existing and in good standing under the laws of the State of Texas. (b) iut ority. This Agreement has been duly executed and delivered by Seller and constitutes a valid and binding obligation of Seller, enforceable in accordance with its terms. (c) Condition of Assetg. The Equipment listed on Schedule A is owned free and clear of lien or encumbran-e by Seller and on the Closing Date will be in place and in good operating condition. (d) Contracts and Agreements. Seller has performed all the obligations required to be performed under the Ground Lease, the licenses, contracts and agreements listed on Schedule B hereto. Seller is not in default and no event has occurred which, but for the passage of .time and/or giving of notice, would constitute default. (e) Bulk Sales. Seller has complied with all applicable state and federal laws regarding sale or transfer of the assets of a business, including but not limited to, Article 6 of the Texas Business and Commerce Code, also known as the Texas Bulk Sales'Aet. (f) Compliance with Laws. The Assets comply in all material respects with all applicable ordinances, regulations and rules of governmental entities and agencies, as well as state and federal law. (g) Pension Plans. Seller is not directly or indirectly a party to any profit --sharing, bonus, deferred compensation, stock option, severance pay, pension, retirement or similar plan or agreement, whether funded or otherwise. 6. Representations and Warranties of Buyer. Buyer hereby represents and warrants that the following will be true and correct as of the Closing Date: (a) Organization. Buyer is a general partnership duly organized, validly existing and in good standing under the laws of the State of Texas. (b) authority. This Agreement has been duly executed and delivered by Buyer and constitutes a valid and binding obligation of Buyer, enforceable in accordance with its terms. (c) Broker. Buyer has not engaged the services of and owes no fees or expenses to any broker in connection with this transaction. 7. Fuel Storage Tanks. Seller shall remove the fuel storage tanks in complete compliance with all state, local and federal laws and regulations. In addition, Seller shall execute a Partial Assignment of Ground Leases, which excludes from the Ground Lease which Buyer is to assume under the terms of this Agreement that portion of the leased premises on which fuel storage tanks are presently located. S. Proration. Buyer and Seller agree that all -ams, tom, --^, ad valorem and/or other taxes attributable to the Assets shall be prorated as of the Closing Date. Further, Buyer and Seller agree that any fees for licenses and payments under the APR 24 '92 14:46 ABILEf IE AERO P. .3 Ground Leases transferred to Buyer shall be prorated as of the Closing.Date. 9,. Covenant Not to Complete. (a) Seller, Roy K. Doshier ("Doshier") and Kent E. Copeland ("Copeland"), hereby agree that, for a period of three ( 3 ) years from the Closing Date, Seller, Doshier and Copeland, individually or collectively, will not engage in the following activities in any location that is within a fifty (50) mile radius of the principal office of Seller at the Lubbock International Airport: (1) Aircraft refueling; (2) Airline refueling; (3) Flight training; (4) Aircraft maintenance and repair; (5) Propeller repair. (b) The above stated covenant not to compete shall not apply to the following activities: (1) Sales and brokering of aircraft; (2) Pilot service; (3) Flight instruction in aircraft owned by customer and ground instruction; (4) Flight testing; (5) Written testing; (6) Maintenance, repair and salesd.LtA#(, of'ground equipment. (c) Doshier and Copeland hereby represent that they are the sole shareholders of Seller. As officers and sole shareholders of Seller, Doshier and Copeland recognize and agree that Doshier and Copeland will ultimately receive the benefits and proceeds of the sale of Sellerts assets under this Agreement. Further, Buyer represents and Seller, Doshier and Copeland, understand and agree that the above stated covenant not to compete is a condition precedent to this Agreement and that Buyer will not enter into this Agreement without the above stated covenant' not to compete. In addition, Seller, Doshier, Copeland, and Buyer understand and agree that the above stated covenant not to compete is given as an inducement to Buyer to enter into this Agreement. Finally, Seller, Doshier and Copeland, understand and agree that the above stated covenant not to compete is given as and amounts to consideration to Buyer under this Agreement. (d) The above stated covenant not to compete shall be assignable by Buyer without the consent of Seller, Doshier and/or Copeland, and without notice to Seller, Doshier and/or Copeland. 10. professional Fees. Seller shall pay any and all broker's fees and commissions which are due or otherwise incurred by Seller in connection with this transaction. Seller shall pay any and all costs, of surveyors utilized in preparing the Partial Assignment of Ground Leases. Each party shall be responsible for paying any other' fees and expenses incurred by it in connection with this transaction. 11. Lease with Roy W. Neal, Jr. Agency, Inc. Seller has a written lease agreement with Roy W. Neal, Jr. Agency, Inc. regarding 1,394 square feet in the west end of the office Building. Buyer will honor the above referenced lease until 12:01 a.m. on May 1, 1994. 3 HF'R �4 "+c: 14:4'r` HUILL11L HLKu P.4 12. Office and HAnger Space. Buyer will provide office space and hanger space for Seller at no charge for ninety (90) days immediately following the Closing Date. Buyer will provide to Seller office space for ONE HUNDRED AND NO/100 DOLLARS ($100,00) per month and hanger space for TWENTY --FIVE AND NO1100 DOLLARS ($25.00) per aircraft for an additional ninety (90) days immediately following the initial ninety (90) day period. 13. Indemnification. Seller agrees to and shall indemnify and hold harmless Buyer, its officers; agents, and employees, from and against any and all claims,. losses, damages, causes of action, suits, and liability of every kind, including all expenses of litigation, court costs, and attorney's fees, for injury to or death of any person, or for damage to any property, arising out of or in connection with the Seller's business prior to the effective date of this Agreement. 14. Necessary Payments. Seller represents that it will make any and all payments required to have been made as of the Closing Date under the terms.of any Assigned Contract. Seller shall also pay all amounts due as stated -on the Accounts Payable list, attached hereto as Exhibit 1 as they come due in the course of business. 15. Closing Documents. At the Closing, the parties will execute and deliver such other contracts and instruments as may be necessary and proper to vest good and marketable title in and to the Assets in Buyer and as are sufficient to consummate the transactions contemplated hereunder. lb. Severability. If any provision of this Agreement is held to be void, illegal or unenforceable under present or future laws, such provision shall be fully severable and this Agreement shall be construed and enforced as if such void, illegal or unenforceable provision never comprised a part hereof, and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected in any way by the void illegal or unenforceable provision or its severance. Furthermore, there shall be added in lieu of such severed provision a provision as similar in its terms to such severed provision as may be possible and be valid, legal and enforceable. 17. Further Assurances. Each party agrees that it will cooperate with the other party to execute, deliver and file all documents and instruments after the Closing that the other party reasonably requests in connection with this Agreement. 18. notices. Any notice given hereunder must be in writing -ter and given by depositing the notice in the United States mail, addressed to the other party, postage prepaid and certified, return receipt requested, or by delivering the notice in person. Notice by mail shall be effective on the earlier of the third business day after mailing or on the date of receipt by the person to be notified. For purposes of notice, the addresses of the parties shall be the addresses listed above their respective names on the signature pages hereto. Any party may change its address for giving notice by written notice given to the other party in accordance with this paragraph. 19. Entire Agreement. This Agreement,. and the schedules and exhibits hereto, embody the entire agreement and understanding between the parties with respect to the subject matter hereof and supersede all prior agreements and undertakings relating to the subjectmatter hereof whether written or oral. 20. Amendment. This Agreement may be amended, modified or, supplemented only by a written instrument executed by both parties. 21. Governing Law. This Agreement shall be interpreted, construed and governed by'the laws of the State of Texas. 4 s � APP. 24 92 14:49 ABILENE AEP() P.5 22. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and such counterparts together shall constitute only one original. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the date first above written. WES-TEX AIRCRAFT, INC. Route 3, Box 48 Lubbock, Texas 79401 By: Roy K. Doshier, President By: Kent E. Copeland, Vice President ROY K. DOSHIER By: Roy K. Doshier, Individually KENT COPELAND By: Kent Copeland, Individually AVIATION PROPERTIES 2850 Airport Boulevard Abilene, Texas 79602 By: , Wayne V. Ramsey, Partner