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Exhibit 10.6
EQUIPMENT LEASE AGREEMENT
This EQUIPMENT LEASE AGREEMENT (the "LEASE") by and among
AVIATION SALES DISTRIBUTION SERVICES COMPANY, a Delaware corporation (the
"LESSOR"), whose principal address is 0000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx
00000, AVIATION SALES COMPANY, a Delaware corporation ("AVS"), whose principal
address is 0000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000, and XXXXXXXXX INDUSTRIES,
INC., a Delaware corporation (the "LESSEE"), whose principal address is 0000
Xxxxxxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000, is made this 1st day of
December, 2000 (the "EFFECTIVE DATE").
WHEREAS, Lessee desires to enjoy the exclusive use of the
Equipment (as hereafter defined); and
WHEREAS, Lessor is willing to provide such Equipment for
Lessee's exclusive use under this Lease;
WHEREAS, AVS is the parent of Lessor and joins in the
execution of this Agreement for the purposes stated herein;
NOW, THEREFORE, in consideration of the foregoing recitals,
the rental payments made hereunder, and the representations, warranties and
covenants herein contained, Lessor and Lessee agree as follows, intending to be
legally bound:
SECTION 1. LEASING AND PURPOSE.
1.1 Lessor agrees to lease to Lessee and Lessee agrees to
lease from Lessor the equipment more particularly described on SCHEDULE 1.1 (the
"EQUIPMENT"). Lessor represents that the Equipment does not include any
"equipment" as defined in that certain Participation Agreement dated as of
December 17, 1998 among AVS, as construction agent and lessee; First Security
Bank, N.A., f/k/a First Security Bank of Utah, N.A., not individually, except as
expressly stated in such Participation Agreement, but solely as Owner Trustee
under the Aviation Sales Trust 1998-1; the various banks and other financial
institutions a party thereto from time to time, as holders and lenders
thereunder; and Nationsbank, N.A., as administrative agent for the lenders (the
"TROL EQUIPMENT") and, in addition thereto, does not include any equipment that
is located in the Ardmore Facilities (as defined in that certain Transition
Services Agreement dated as of the date hereof among Lessor, Lessee and AVS (the
"TRANSITION SERVICES AGREEMENT")), such equipment being referred to as the
"ARDMORE EQUIPMENT". At such time as Lessor ceases operations at the Ardmore
Facilities in accordance with Article III of the Transition Services Agreement,
the Ardmore Equipment shall become part of the Equipment and the Rent (as
defined below) shall be adjusted in the manner described in Section 3.2 below.
1.2 Lessee agrees that the Equipment will be used by the
Lessee only for lawful purposes and in the normal and ordinary course of
Lessee's business. Lessee understands and agrees
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that it acquires no right of ownership or equity in the Equipment solely as a
result of the payment of Rent (as defined below) hereunder.
SECTION 2. ACKNOWLEDGMENT. The parties acknowledge and agree
that Lessor has made no representation or warranty of any kind, express or
implied, with respect to such Equipment, except as provided in Section 1.1 above
and Section 4 below.
SECTION 3. TERM, RENT, OPTIONS, ADDITIONAL CONSIDERATION AND
AUDIT.
3.1 The term of this Lease shall run from the Effective Date
through the date which is twelve (12) months from and after the Effective Date,
unless earlier terminated pursuant to the terms of this Lease (such period of
time being hereinafter referred to as the "TERM"). The last day of the Term
hereof shall be hereinafter referred to as the "TERMINATION DATE." Any use of
the Equipment by Lessee beyond the Termination Date shall be deemed an extension
of the original Term on a month-to-month basis and all obligations of Lessee
under this Lease (including the obligation to pay Rent) shall continue until the
Equipment is returned to Lessor as provided under Section 12. For purposes
hereof, the term "Senior Loan Agreement" means that certain Amended and Restated
Loan and Security Agreement dated as of December 14, 1998 among Lessee and
certain subsidiaries of Lessee, as borrowers, and Bank of America, N.A., certain
other lenders and other parties thereto, as amended through the date hereof.
3.2 During the twelve (12) month Term hereof, Lessee agrees to
pay to Lessor monthly rental (the "RENT") for the Equipment, in an amount equal
to one percent (1.0%) of the net book value of the Equipment as shown on
SCHEDULE 1.1 (the "NET BOOK VALUE"). The initial Rent hereunder shall be in the
amount of Seventy Seven Thousand Three Hundred Eighty-Five and 67/100 Dollars
($77,385.67) per month. After the Lessor ceases operations at the Ardmore
Facilities in accordance with Article III of the Transition Services Agreement,
and the Ardmore Equipment becomes part of the Equipment pursuant to Section 1.1
above, the Rent shall be adjusted to take into consideration the Net Book Value
of the Ardmore Equipment. The Rent to be paid hereunder is due and payable on a
monthly basis in advance, the first such payment being due and payable on the
Effective Date and each subsequent payment being due and payable on the first
day of each month of the Term, all without demand. In the event the Lease does
not begin on the first day of the month or end on the last day of the month, the
first and last lease payments hereunder may be prorated for the actual number of
days the Lease is outstanding during the first and last month. Lessee agrees to
pay the Rent and all other payments to Lessor at the address referred to in
Section 15 below, or where Lessor may otherwise require. This Lease is a NET
Lease, under which Lessee's obligations are to pay all Rent and other sums
payable hereunder, and Lessee shall pay all costs, expenses and obligations of
every kind and nature relating to the Equipment other than claims relating to
indebtedness incurred by Lessor or claims arising at any time that are
attributable to Lessor. Net Book Value, as used herein, shall not be altered
from the amount set forth on SCHEDULE 1.1 hereof, notwithstanding the passage of
time or other circumstances which might change the net book value of the
Equipment for accounting purposes; however, Net Book Value may be reduced in the
event that any of the Equipment is lost, damaged or taken and paid for by Lessee
pursuant to Section 8.2. Any such reduction in the aggregate Net Book Value of
all the Equipment shall be in an amount of the Net
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Book Value for the particular equipment lost, damaged or taken (and paid for by
Lessee in accordance with Section 8.2).
3.3 Lessee acknowledges and agrees that Lessor may sell all or
part of the Equipment to a third party purchaser (a "SUPPLEMENTAL PURCHASER").
In the event that Lessor sells all or part of the Equipment to a Supplemental
Purchaser (such sold Equipment hereinafter referred to as the "SOLD EQUIPMENT"),
such sale shall be subject to the terms and conditions contained in this Lease.
Thereafter, Lessee shall continue to pay Rent hereunder in the same amount as
prior to such sale to a Supplemental Purchaser, however, the Rent payments shall
be divided in accordance with written instructions jointly provided to Lessee by
Lessor and such Supplemental Purchaser. Any Equipment sold to a Supplemental
Purchaser shall continue to be subject to the Equipment Purchase Agreement, and
such Supplemental Purchaser's purchase of the Equipment shall be subject to the
Equipment Purchase Agreement.
3.4 The Lessor and Lessee shall conduct a joint inventory of
the Equipment, to be completed within ninety (90) days of the Effective Date.
Upon completion of such audit, the parties will prepare and attach hereto an
amended SCHEDULE 1.1 hereto, whereupon the Net Book Value and the Rent
calculated therefrom shall each be adjusted to reflect the findings of the
audit. Any overage or underage in payments of Rent made hereunder prior to
completion of the audit shall be applied toward the next scheduled payment date
after audit completion.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF LESSOR.
4.1 Other than Permitted Liens (as defined in that certain
Asset Purchase Agreement by and between Lessor, Lessee, and AVS (the "ASSET
PURCHASE AGREEMENT")), Lessor has good and marketable title to all of the
Equipment. Lessor will as of the Effective Date own the Equipment free and clear
of any Liens (as defined in the Asset Purchase Agreement) other than Permitted
Liens, with full power to lease the same to Lessee free and clear of any Liens
(other than Permitted Liens). The Equipment, taken as a whole, is in good
operating condition, normal wear and tear excepted. SCHEDULE 1.1 represents all
of the Furniture, Fixtures and Equipment line items of the Base Balance Sheet
(as defined in the Asset Purchase Agreement), except that SCHEDULE 1.1 does not
contain the Ardmore Equipment or the TROL Equipment. If the Lessee pays the Rent
as provided hereunder, and observes all other material terms, covenants and
conditions hereof, it may peaceably and quietly have, hold and enjoy the
Equipment during the Term.
4.2 NOTWITHSTANDING ANYTHING CONTAINED IN THIS SECTION OR ANY
OTHER PROVISION HEREOF, IT IS THE EXPLICIT INTENT OF EACH PARTY HERETO THAT THE
LESSOR AND THE LESSEE ARE NOT MAKING ANY REPRESENTATION OR WARRANTY WHATSOEVER,
EXPRESS OR IMPLIED, BEYOND THOSE EXPRESSLY GIVEN IN THIS SECTION 4 OR IN ANY
TRANSACTION DOCUMENTS (AS DEFINED IN THE ASSET PURCHASE AGREEMENT), INCLUDING,
BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR REPRESENTATION AS TO CONDITION,
MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE AS TO ANY OF
THE EQUIPMENT, AND EXCEPT AS EXPRESSLY SET FORTH HEREIN AND IN THE TRANSACTION
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DOCUMENTS, IT IS UNDERSTOOD THAT LESSEE IS LEASING ALL OF THE EQUIPMENT ON AN
"AS-IS" "WHERE-IS" BASIS.
SECTION 5. TITLE, IDENTIFICATION, INSPECTION AND REPORTS.
Lessee acknowledges and agrees that unless and until the Equipment is sold
pursuant to the Equipment Purchase Agreement (a) ownership of and title to the
Equipment and all accessions thereto remain with Lessor (or a Supplemental
Purchaser to the extent applicable); (b) Lessee will make no claim or assert any
right to any such Equipment inconsistent with Lessor's ownership, and will make
appropriate entries upon the books and records disclosing Lessor's title to the
Equipment; (c) if Lessor so requests, Lessee will specifically identify the
Equipment in a manner reasonably acceptable to Lessor as being owned and leased
by the Lessor, (d) Lessee, at its expense, will protect and defend Lessor's
title to the Equipment from and against all claims, encumbrances, liens and
legal processes other than those arising out of indebtedness incurred by Lessor
or otherwise attributable to Lessor; (e) Lessee will, whenever requested by
Lessor, execute and deliver to Lessor all agreements, instruments and documents
necessary to fully consummate all of the transactions contemplated herein and
necessary for the protection of Lessor's title to the Equipment; (f) Lessee will
allow Lessor to inspect the Equipment at reasonable times; (g) Lessee agrees to
provide to Lessor at least thirty (30) days prior written notice in the event
any portion of the Equipment shall be moved to a location other than as is set
forth on SCHEDULE 5 attached hereto; and (h) Lessee agrees not to move any
portion of the Equipment that remains subject to the Lease out of the United
States.
SECTION 6. USE AND MAINTENANCE.
6.1 Lessee's use and operation of the Equipment shall be in
compliance with the provisions of all applicable Insurance Policies (as
hereafter defined) and all pertinent rules, regulations, permits, certification,
ordinances and laws of all governmental or regulatory bodies having jurisdiction
over Lessee, the Equipment or the use or operation thereof by Lessee. Lessee
will use and operate the Equipment in compliance with normal, safe operating
procedures for such Equipment and in conformance with applicable operating
manuals. Lessee, at its expense, will pay for all required operating services,
materials, maintenance and repair and will keep the Equipment in good, safe and
satisfactory repair and in the same good and safe operating condition and
appearance as when received, excepting only reasonable wear and tear.
6.2 Lessee shall not materially alter, modify, make additions
or make improvements to the Equipment without prior written approval of Lessor
(which shall not be unreasonably withheld). Lessee shall promptly notify Lessor
in writing of the nature of any such material change to the Equipment and, if
Lessor's approval is given, Lessee shall subsequently notify Lessor that the
required work has been accomplished in accordance with Lessor's approval. All
such Lessor-approved alterations, modifications, additions and improvements made
to the Equipment shall become the property of Lessor and Lessee shall be in
default under this Lease if Lessee shall make any material alterations,
modifications, or additions to the equipment that have not been approved in
writing by Lessor.
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SECTION 7. INSURANCE. Lessee will, at its expense, at all
times during the Term, and until the Equipment is returned pursuant to Section
12 or purchased pursuant to the Equipment Purchase Agreement, procure and
maintain insurance covering the Equipment, and such insurance shall be of the
type, in the amount and with the insurers currently used by Lessee or other
insurers of recognized reputation and responsibility. In no event shall such
insurance be in amounts less than the applicable Net Book Value for the
Equipment. A description of all insurance policies covering the Equipment is set
forth on SCHEDULE 7 attached hereto (the "Insurance Policies"). All Insurance
Policies shall name Lessor and Lessor's assignee (if any) as additional insured
and additional loss payee, as their interests may appear, and shall provide that
the policies may be altered or cancelled by Lessee or insurer only after 30
days' prior written notice to Lessor, and, within 15 days prior to the
expiration of any insurance policy, Lessee shall furnish Lessor with a copy of
each replacement insurance policy written with respect to Equipment and with
evidence that the required insurance remains current and in full force and
effect and has been renewed for the applicable period. Any operation of the
Equipment by Lessee while required insurance is not in full force and effect
will constitute a default by Lessee under this Lease. The insurance policy or
policies evidencing coverage against loss or damage to the Equipment shall also
provide that any insurance proceeds payable by such insurer pursuant thereto
shall be payable jointly to Lessee and Lessor (or to Lessor's Assignee). Lessee
hereby irrevocably appoints Lessor as Lessee's attorney-in-fact coupled with an
interest to make claim for, receive payment of, and execute and endorse all
instruments, documents, checks or drafts received in payment for loss or damage
under insurance policies. Notwithstanding any provision to the contrary
contained herein, Lessor shall only be entitled to receive insurance proceeds to
the extent of its interest in the Equipment; accordingly, in the event of loss
or damage to any of the Equipment, Lessor shall be entitled to receive no more
than the applicable Net Book Value of the applicable Equipment.
SECTION 8. LOSS OR DAMAGE.
8.1 Lessee, during the Term or any other period in which
Lessee is in possession of the Equipment, assumes and shall bear the entire risk
of loss, destruction, theft, or taking of, or damage to the Equipment from any
cause whatsoever (other than attributable to Lessor). Lessee will promptly
report to Lessor in writing any material loss, destruction, theft, taking of,
damage to, the Equipment, and shall promptly provide Lessor with copies of all
reports or documents made by it relating thereto.
8.2 In the event that any of the Equipment shall have been
lost, destroyed, stolen, or damaged to such an extent that repair thereof is
impractical, or in the event of a total taking, which term includes without
limitation, seizure, hijacking, condemnation, requisition or taking of
possession of any Equipment by any governmental authority, domestic or foreign,
or any agency or political subdivision thereof, Lessee shall pay to Lessor or to
its assignee or mortgagee the Net Book Value of the applicable Equipment upon
the sooner to occur of sixty (60) days after such loss, destruction, theft,
damage or taking or three (3) days following the receipt of insurance proceeds
therefor. Until such time as the Net Book Value of the applicable Equipment is
paid for either directly by Lessee or by the insurer, Lessee shall continue to
pay the applicable Rent for such Equipment, as well as all other sums payable
under this Lease relating to such Equipment. Unless
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otherwise agreed to in writing by Lessor, any nonpayment of insurance proceeds
that may be due hereunder will not excuse Lessee from its obligations to pay
Lessor as set forth hereinabove.
8.3 To the extent that any such loss, damage or taking is
covered by insurance, all proceeds of such insurance shall be first applied by
Lessee toward satisfaction of the payment required to be made to Lessor or its
assignee or mortgagee pursuant to Section 8.2. Upon receipt of the payment in
full, as required by Section 8.2, the Term of the Lease for the Equipment so
lost, destroyed, damaged, taken or stolen shall terminate and the Rent for the
remaining Equipment shall be reduced in accordance with the rental formula
contained in Section 3.2 above. In such event, Lessee shall become entitled to
(a) all remaining proceeds of insurance pertaining to such Equipment; and (b)
all of Lessor's rights, title, duties and interest with regard to such Equipment
as they exist at the time of termination, without warranty, express or implied,
as to any matter whatsoever. Lessor agrees to deliver to Lessee such duly
executed instruments as may be required, and to take such other action necessary
to transfer any of the foregoing to the Lessee, and Lessee agrees to accept such
transfer.
8.4 If the Equipment or any part, component or material
thereof shall suffer any loss, destruction, damage or taking, to such an extent
that repair remains practicable, Lessee shall, at its own expense (which shall
be reimbursable upon completion from any insurance proceeds or, with the written
consent of Lessor, shall be made with insurance proceeds), promptly restore such
Equipment to good and safe condition, repair and working order, including
without limitation, replacing all equipment, parts, components, or materials of
such Equipment as shall have been lost, destroyed, damaged or taken with
manufacturer approved Equipment, parts, components, or materials of equal or
greater value.
8.5 Other than with respect to Equipment that is paid for in
accordance with Section 8.2 above, no loss, theft, destruction or damage to, or
taking of, the Equipment, however occurring and whether or not the same is
covered by insurance, shall relieve Lessee of any of its obligations under this
Lease.
SECTION 9. GENERAL INDEMNITIES. Lessee assumes liability for,
and hereby agrees to indemnify, protect, save and keep harmless Lessor, its
agents, employees, officers, directors, successors and assigns from and against
any and all liabilities, obligations, losses, damages, penalties, claims,
actions, suits, costs and expenses, including legal fees and expenses, of
whatsoever kind and nature imposed on, incurred by or asserted against Lessor,
its agents, employees, officers, directors, successors and assigns, in any way
relating to or arising out of this Lease or the Equipment (other than as relates
to the use or ownership of the Equipment prior to the Effective Date or any
indebtedness incurred by Lessor with respect to the Equipment or otherwise
attributable to Lessor), including, without limitation, the ownership,
possession, use, selection, delivery, leasing, operation, maintenance, return or
condition of the Equipment or any failure on the part of Lessee to perform or
comply with any of the terms of this Lease. The assumptions of liability and
indemnities contained in this Section 9 shall remain in full force and effect at
all times, shall survive the expiration or other termination of this Lease and
shall terminate only upon the applicable passage of time outlined in the Asset
Purchase Agreement for continuing obligations of the parties thereto. Payments
hereunder shall be due on demand.
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SECTION 10. LICENSES, CERTIFICATES, PERMITS, FEES AND TAXES.
Lessee agrees during its possession of the Equipment, at its expense, to procure
and maintain in effect all licenses, certificates, permits and other approvals
and consents required by municipal, state, federal or foreign laws and
regulations in connection with the possession, use and operation of the
Equipment. Lessee shall pay promptly when due all registration, title, license,
permit and certificate fees, assessments, sales, use, gross receipts, property
and any and all other taxes or other charges of whatever nature incurred on or
after the Effective Date (hereinafter collectively called "impositions") and by
whomever payable (except federal taxes levied on Lessor's net income), now or
hereafter imposed during the Term or prior to the return of the Equipment to
Lessor, by any state, federal, local or foreign government upon use, ownership,
rental, shipment, transportation, delivery or operation of the Equipment or upon
or measured by any payments due hereunder or by virtue of any additions,
modifications or repairs to the Equipment. In the event any of such impositions
and any penalties or interest thereon shall be paid by Lessor or if Lessor is
required to collect and pay the foregoing, Lessee shall promptly reimburse
Lessor upon demand for such sums and for any expenses incurred therein. Lessor
agrees that if Lessee determines in good faith that a claim exists to all or a
portion of any such imposition in respect to which Lessee has made payment to
Lessor as aforesaid, Lessor shall, upon request and at the expense of the
Lessee, take all such legal or other appropriate action in order to sustain such
claim. Lessor shall not be obligated to take any such legal or other appropriate
action unless Lessee shall first have indemnified Lessor for all liabilities and
expenses which may be entailed therein, and shall have furnished Lessor with
such reasonable security therefor as may be requested. Lessee shall be entitled
to the proceeds of the successful prosecution of any such claim.
SECTION 11. DEFAULT AND REMEDIES.
11.1 An event of default shall occur if (a) Lessee fails to
pay when due any installment of Rent or any other sum payable hereunder;
provided, however, no event of default shall be deemed to have occurred on
account of this clause (a) unless and until Lessor has provided Lessee five (5)
days written notice of such payment failure and Lessee has failed to cure the
payment failure during the five (5) day period; and provided, further, that
Lessee shall only be entitled to such notice and five (5) day non default period
an aggregate of twice during the Term and no notice of payment default need be
given by Lessor thereafter; (b) either party fails to perform or observe in any
material respect any covenant, condition or agreement to be performed or
observed by it hereunder, and such failure continues for a period of fifteen
(15) days after written notice of such failure (other than the requirement to
maintain insurance for which no period of grace shall apply); (c) either party
ceases doing business as a going concern, makes an assignment for the benefit of
creditors, admits in writing its inability to pay its debts as they become due
or such fact is determined by judicial proceedings, files a voluntary petition
in bankruptcy, is adjudicated a bankrupt or an insolvent, files a petition
seeking for itself any reorganization, rearrangement, composition, readjustment,
liquidation, dissolution, or similar arrangement under any present or future
statute, law or regulation, or files an answer admitting the material
allegations of a petition filed against it in any such proceedings, consents to
or acquiesces in the appointment of a trustee, receiver, or liquidator of, all
or any substantial part of its assets or properties; (d) Lessee attempts to
move, remove, sell, transfer, encumber, part with possession or sublet the
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Equipment or any item thereof in breach of this Lease; or (e) Lessee fails to
maintain the insurance required hereunder.
11.2 Upon the occurrence of an event of default, Lessor or
Lessee, as applicable, at its option, may take one or more of the following
actions: (a) proceed by appropriate court action or actions either at law or in
equity to enforce performance by the other party of the applicable covenants and
terms of this Lease or to recover from the applicable party, any and all damages
or expenses including reasonable attorneys' fees, which the such party shall
have sustained by reason of the defaulting party in any covenant or covenants of
this Lease or on account of such party's enforcement of its remedies hereunder;
(b) in the event Lessee has brought about the event of default, terminate
Lessee's rights under this Lease whereupon Lessee, at its sole cost and expense,
shall cause the Equipment to be delivered to Lessor in accordance with Section
12 hereinbelow; or (c) in the event that Lessee has brought about the event of
default, take possession of all of the Equipment leased hereunder, and thereupon
Lessee's right to the possession thereof shall terminate. Notwithstanding the
foregoing, in the event of repossession of the Equipment, Lessor shall not be
entitled to receive more than is provided in Section 11.3 below.
11.3 In the event of any such repossession as provided in
11.2(c) above, Lessor may either lease the Equipment or any portion thereof for
such period and rental, and to such persons as Lessor may elect, or sell the
Equipment or any portion thereof at public or private sale and without demand or
notice of intention to sell or of sale, or presence of the same at the place of
sale. If any Equipment is sold, leased or otherwise disposed of pursuant to this
Subsection 11.3, Lessee shall be liable to Lessor for, and Lessor may recover
from Lessee, as liquidated damages for the breach of this Lease but not as a
penalty, the amount by which the proceeds of such lease, sale or other
disposition (less the expense of retaking, servicing, repairing, demonstrating,
storing, leasing, selling or other disposition) is less than the sum of (a) all
due and unpaid rent for such Equipment; (b) the Net Book Value of the Equipment
repossessed; (c) an amount equal to due and payable impositions, and other
amounts payable hereunder by Lessee with respect to such Equipment; and (d)
interest at the lesser of one and one-half percent (1-1/2%) per month or the
highest legal rate permitted to be contracted for, charged, paid, taken or
received under applicable law (the "Maximum Rate") on each of the foregoing and
on all sums not paid when due under any provision of this Lease. If on the date
of such termination or repossession any Equipment shall be damaged, lost, stolen
or destroyed, or be subject to any levy, seizure, assignment, application for
sale for or by any creditor or governmental agency, other than damages caused by
or attributable to Lessor or its agents, Lessee shall also be liable to Lessor
as provided in Section 8 with regard to such Equipment, less the amount of any
insurance recovery received by Lessor in connection therewith.
11.4 No right or remedy conferred upon or reserved to Lessor
by this Lease shall be exclusive of any other right or remedy herein or by law
provided; all rights and remedies of Lessor conferred upon Lessor by this Lease
or by law shall be cumulative and in addition to every other right and remedy
available to Lessor.
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11.5 In the event of any default, the defaulting party shall
pay to the non defaulting party a reasonable sum for attorneys' fees and such
costs and expenses as shall have been incurred by the non defaulting party in
the enforcement of any right or privilege hereunder.
SECTION 12. RETURN OF EQUIPMENT.
12.1 Prior to the expiration or other termination of this
Lease, unless otherwise agreed in writing, Lessee will schedule an inspection of
the Equipment to be performed and completed immediately prior to the return of
the Equipment to Lessor jointly by Lessee and Lessor, and Lessee, at its sole
cost and expense, will pay for all work determined by such inspection to be
necessary to enable Lessee to return the Equipment to Lessor at a location
reasonably specified by Lessor free from all advertising or insignia placed
thereon by Lessee and in the same condition and appearance as when first
received by Lessee, reasonable wear and tear only excepted. In the event Lessee
and Lessor are not able to mutually agree with respect to the foregoing by the
date the Equipment is due to be returned to Lessor, Lessor shall, subject to
Lessee's approval (which shall not be unreasonably denied), appoint an
appropriate service and repair facility to inspect the Equipment and perform the
work described above. In the event any required work, repairs or services should
delay the return of the Equipment to Lessor beyond the expiration date of the
Lease or other termination date, Lessee shall continue to pay Rent in the same
manner as if there had been no expiration or other termination of the Lease
until all such required work, repair, or servicing has been completed and the
Equipment returned to Lessor as provided hereinabove.
12.2 Unless Lessee has purchased the Equipment pursuant to the
Equipment Purchase Agreement, then in the event Lessee does not return the
Equipment to Lessor in the condition described in Section 12.1 above, Lessor
may, without limiting its remedies hereunder on account of such failure, make
any repairs or replacements reasonably necessary to restore such Equipment to
said condition, and Lessee shall immediately reimburse Lessor on demand for the
expense of any such repairs or restoration and until all such work has been
satisfactorily completed and Lessor reimbursed for any expense in connection
therewith, Lessee shall continue to pay Rent in the same manner as if there has
been no expiration or termination of the Lease with respect to such Equipment.
SECTION 13. ASSIGNMENT, SUBLEASE AND MORTGAGE.
13.1 Lessee acknowledges and understands that the terms and
conditions of this Lease have been fixed by Lessor to permit Lessor, at its sole
election, to sell all or any portion of the Equipment to a Supplemental
Purchaser, so long as any such purchaser purchases the Equipment subject to the
terms of this Lease and assumes the obligations of Lessor hereunder. Any such
purchaser is expected to rely and shall be entitled to the benefit of the
provisions of this Section 13.1. In connection therewith, Lessor agrees to
provide to Lessee not less than fifteen (15) days prior written notice of any
such assignment. In consideration of the provisions hereof, Lessee agrees with
Lessor and with such purchaser and/or such other party (for whose benefit this
covenant is expressly made) to do as follows: (a) to recognize any such
assignment; (b) to accept the directions or demands of such assignee in place of
those of Lessor in accordance with the terms of this Agreement (or in addition
to those of Lessor if the Supplemental Purchaser purchases only a
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portion of the Equipment); (c) to surrender any Equipment only to such assignee
in accordance with the terms of this Agreement; (d) to pay all rent payable
hereunder and to do any and all things required of Lessee hereunder; and (e) to
execute any documents (or consents to the assignment) which Lessor may
reasonably request in order to effectuate the foregoing. In addition to the
foregoing, this Lease may be assigned by Lessor to any successor of Lessor, no
matter how such successor is brought about. HOWEVER, NOTHING HEREINABOVE SHALL
RELIEVE LESSOR FROM ITS OBLIGATIONS TO LESSEE HEREUNDER; AND ANY SUCH ASSIGNMENT
OR TRANSFER SHALL BE SUBJECT AND SUBORDINATE TO THE TERMS AND PROVISIONS OF THIS
LEASE AND THE RIGHTS AND INTERESTS OF LESSEE HEREUNDER.
13.2 Lessee may not, without prior written consent by Lessor,
assign any part of this Lease or sublease all or any part of the Equipment
included herein; provided, however, Lessee may upon prior written notice to
Lessor assign all or any part of this Lease to any direct or indirect subsidiary
of Lessee. In the event Lessee desires to do any of the foregoing, Lessee shall
provide Lessor with a list of the Equipment to be subleased, along with the name
and address of the proposed sublessee or assignee. Such sublessee or assignee
shall cooperate with Lessor in matters relating to credit worthiness of the
sublessee, and Lessor shall have reasonable discretion as to whether to permit
the sublease or assignment, except as provided above. In the event Lessor
desires to permit Lessee to sublease the Equipment or assign the Lease, Lessor
shall be permitted to impose reasonable requirements upon the sublessee,
including the making by sublessee of the representations contained in Section 16
hereof. Even if Lessor permits such sublease or assignment, Lessee shall remain
liable for all obligations of the sublessee under this Lease.
SECTION 14. PERSONAL PROPERTY; EXPENSES; FURTHER ASSURANCES.
The Equipment shall remain personal property regardless of whether it becomes
affixed or attached to real property or any improvement thereof. Lessee will not
permit any Equipment to become so related to any particular real estate so as to
become a fixture on such real estate or to be installed in or affixed to other
goods so as to become an accession to such other goods, except as may already be
the case. Lessee agrees to execute all such agreements and other documents, and
to obtain the execution thereof by other persons as Lessor may request, in
recordable form, by all parties having an interest in any real property to which
any of the Equipment is related, with respect to the identity of the Equipment
as personal property, and the disclaimer of any interest in the Equipment by
such other persons. Lessee consents to the recordation of all such agreements
and documents. Lessee agrees to pay all out-of-pocket costs and expenses
(including legal fees and expenses) of Lessor in connection with the enforcement
of this Lease.
SECTION 15. NOTICES. All notices, requests, consents and other
communications hereunder shall be given in the manner and to the addresses
described in the Asset Purchase Agreement.
SECTION 16. ADDITIONAL REPRESENTATIONS, WARRANTIES AND
COVENANTS. Each of Lessor and Lessee represents, warrants and covenants to each
other all of the following: (a) such party is a corporation or other legal
entity duly organized, validly existing and in good standing under the laws of
the state in which it is incorporated or domiciled, and is duly qualified and
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authorized to do business wherever the nature of its activities or the ownership
of its properties require such qualification and authorization; (b) such party
has the full power, authority and legal right to execute, deliver and perform
the terms of this Lease; and this Lease has been duly authorized by all
necessary corporate or other applicable action of such party and constitutes a
valid and binding obligation of such party, enforceable in accordance with its
terms; (c) there is no law, nor any charter or bylaw provision of such party,
nor any provision in any existing mortgage, indenture, contract or agreement
binding upon such party which would be contravened by the execution, delivery or
performance by such party of this Lease; (d) no consent of the shareholders, or
of any trustee or holder of any indebtedness of such party is or will be
required as a condition to the validity of this Lease, or if required, all such
consents have been obtained and duly certified copies thereof shall be delivered
to the other party; and (e) no registration with, or approval of, any
governmental agency or commission is necessary for the execution, delivery or
performance by such party of the terms of this Lease or for the validity and
enforceability thereof or with respect to the obligations of such party
hereunder, or if required, all such registrations and approvals have been or
will be duly made or obtained and certified copies thereof shall be delivered to
the other party.
SECTION 17. CONDITIONS PRECEDENT TO OBLIGATIONS OF LESSOR. The
obligations of Lessor hereunder are subject to the conditions precedent that
Lessor shall have received all of the documents and items set forth below in
form and substance satisfactory to Lessor.
17.1 Lessor shall have received resolutions of the Board of
Directors of Lessee certified by its Secretary or an Assistant Secretary, which
authorize the execution, delivery and performance by Lessee of this Agreement
and any other documents relating hereto.
17.2 Lessor shall have received a certificate of incumbency
certified by the Secretary or an Assistant Secretary of Lessee certifying the
names of the officers of Lessee authorized to sign the Lease and the other
documents to be executed in connection herewith, together with specimen
signatures of such officers.
17.3 Lessor shall have received such Uniform Commercial Code
financing statements evidencing the Lease, executed by Lessee, as Lessor may
request.
17.4 Lessor shall have received copies of all Insurance
Policies required by Section 7, together with loss payable endorsements in favor
of Lessor with respect to all insurance policies covering the Equipment.
17.5 Lessor shall have received an opinion of Akerman,
Senterfitt & Xxxxxx, P.A., legal counsel to Lessee.
SECTION 18. CONDITIONS PRECEDENT TO OBLIGATIONS OF LESSEE. The
obligations of Lessee hereunder are subject to the conditions precedent that
Lessee shall have received all of the documents and items set forth below in
form and substance satisfactory to Lessee.
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18.1 Lessee shall have received resolutions of the Board of
Directors of Lessor certified by its Secretary or an Assistant Secretary, which
authorize the execution, delivery and performance by Lessor of this Agreement
and any other documents relating hereto.
18.2 Lessee shall have received a certificate of incumbency
certified by the Secretary or an Assistant Secretary of Lessor certifying the
names of the officers of Lessor authorized to sign the Lease and the other
documents to be executed in connection herewith, together with specimen
signatures of such officers.
SECTION 19. FURTHER ASSURANCE. From time to time, each party
shall execute and deliver to the other such additional documents and will
provide such additional information as shall be reasonably requested to carry
out the terms of this Agreement.
SECTION 20. GOVERNING LAW. THIS LEASE HAS BEEN EXECUTED,
DELIVERED AND ACCEPTED PURSUANT TO A TRANSACTION NEGOTIATED, CONSUMMATED, AND TO
BE PERFORMED IN FLORIDA AND IS INTENDED TO BE A CONTRACT MADE UNDER THE LAWS OF
THE STATE OF FLORIDA AND TO BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF FLORIDA. LESSEE HEREBY WAIVES ALL OBJECTIONS TO THE VENUE OF ANY STATE
COURT SITTING IN BROWARD COUNTY, FLORIDA OR FEDERAL COURT FOR THE SOUTHERN
DISTRICT OF FLORIDA, IN ANY ACTION INSTITUTED BY LESSOR (OR ANY ASSIGNEE OF
LESSOR) BY REASON OF ENFORCEMENT OF THIS LEASE OR ANY OF THE DOCUMENTS RELATED
THERETO.
SECTION 21. MISCELLANEOUS. (a) This Lease may not be amended
except in writing and shall be binding upon and inure to the benefit of the
parties hereto and their permitted successors and assigns; (b) any forbearance
or indulgence by any party hereunder shall not constitute a waiver of any of its
rights or remedies; (c) any provision of this Lease which is unenforceable in
any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction; (d) Section headings are for convenience only and do not
define or limit the terms thereof; (e) if Lessee fails to pay or perform any
obligations payable or performable under this Lease, Lessor, at its option, may
cure such failure at Lessee's expense; (f) this Lease is non-cancelable except
as provided herein; and (g) except as otherwise set forth herein, all sums
payable by Lessee under this Lease not paid when due shall accrue interest at
the lesser of the Maximum Rate or at the rate of one percent (1%) per month,
whichever is lesser. This Lease shall become binding on Lessor only upon
Lessor's execution thereof and delivery of a counterpart hereof to Lessee.
This Lease consists of the foregoing and all Schedules and
addenda (if any) attached hereto and executed by the parties and correctly sets
forth the entire agreement of the parties as to the subject matter hereof. By
execution hereof, the signers certify that they have read this Lease and that
they are duly authorized to execute it in the capacity set forth below.
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EXECUTED this 1st day of December, 2000.
LESSOR:
AVIATION SALES DISTRIBUTION
SERVICES COMPANY
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
---------------------------
Title: President
--------------------------
LESSEE:
XXXXXXXXX INDUSTRIES, INC.
By: /s/ Xxxxx Xxxxxx
--------------------------------
Name: Xxxxx Xxxxxx
---------------------------
Title: Chief Financial Officer
--------------------------
AVS:
AVIATION SALES COMPANY
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
---------------------------
Title: President
--------------------------
