EXHIBIT 10.15
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COOPERATION AGREEMENT
among
XXXXXXXXX INDUSTRIES, INC.,
AVIATION SALES COMPANY
and
AVIATION SALES DISTRIBUTION SERVICES COMPANY
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December 1, 2000
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COOPERATION AGREEMENT
This Cooperation Agreement (this "Agreement") is entered into as of
December 1, 2000 (the "Effective Date") among Xxxxxxxxx Industries, Inc., a
Delaware corporation ("Xxxxxxxxx"), Aviation Sales Company, a Delaware
corporation ("AVS") and Aviation Sales Distribution Services Company, a Delaware
corporation ("AVSDS").
RECITALS
The AVS Companies (as hereinafter defined) are engaged in, among other
things, the redistribution of aircraft engines, aircraft parts and aircraft
engine parts through sale, lease and exchange transactions (the "Business").
Contemporaneous with the execution of this Agreement, Xxxxxxxxx is purchasing
certain assets of the Business pursuant to that certain Asset Purchase Agreement
dated as of September 20, 2000 among Xxxxxxxxx, AVS and AVSDS (the "Asset
Purchase Agreement"), and KAV Inventory, LLC, a Delaware limited liability
company ("KAV") is purchasing certain inventory of the Business pursuant to that
certain Inventory Purchase Agreement dated as of September 20, 2000, among KAV,
AVS and AVSDS (the "Inventory Purchase Agreement"). As a material inducement to
Xxxxxxxxx to enter into the Asset Purchase Agreement and to join in the
Inventory Purchase Agreement and to consummate the transactions contemplated
thereby, and as an inducement to AVS and AVSDS to enter into the Asset Purchase
Agreement and the Inventory Purchase Agreement and to consummate the
transactions contemplated thereby, the parties hereto agree to make the
covenants and agreements contained herein on the terms and subject to the
conditions contained in this Agreement.
TERMS OF AGREEMENT
In consideration of the mutual representations, warranties, covenants
and agreements contained herein, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. As used herein, the following terms shall have the
following meanings:
"Affiliate" shall have the meaning ascribed to it in Rule
12b-2 of the General Rules and Regulations promulgated under
the Exchange Act (as hereinafter defined), as in effect on the
date hereof.
"AVS Approved Vendor" means a vendor that meets the criteria
of an acceptable vendor under the provisions of the AVS
quality manual then in effect.
"AVS Companies" means AVS and each of its Subsidiaries and
each of their respective successors and assigns.
"BER" with respect to any Part means a part that is beyond
economic repair.
"Business Day" means any day other than a Saturday or Sunday
or a day on which commercial banks are required or authorized
to close in Miami, Florida.
"Consignment Agreement" means that certain Consignment
Agreement between KAV and Xxxxxxxxx of even date herewith.
"Contract" means any agreement, contract, lease, note,
mortgage, indenture, loan agreement, franchise agreement,
covenant, employment agreement, lease agreement, exchange
agreement, license agreement, instrument, purchase or sales
order, commitment, undertaking or obligation, in each case,
whether written or oral, express or implied.
"Designated Locations" means (i) each location specified as a
"Designated Location" on Schedule 1.1, and (ii) subject to any
restrictions or requirements contained in the Xxxxxxxxx Credit
Facility (as defined in the Asset Purchase Agreement) and the
Senior Credit Facility (as defined in the Inventory Purchase
Agreement), each other location to which Xxxxxxxxx hereafter
consents upon written request of AVS Companies to designate as
a Designated Location (which consent shall not be unreasonably
withheld or delayed).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor thereto, and any rules and
regulations promulgated thereunder.
"Exchange Pool" means a pool of Parts made available to the
AVS Companies for use by them in exchange arrangements with
third parties.
"Fair Market Value" means, with respect to any Part, an amount
equal to the arithmetic mean of the prices in United States
dollars at which Parts of the same type and quality as, or of
a type and quality similar to or reasonably interchangeable
with, the Part so used (if any), shall, during the three-month
period ending on the date such Part is so used
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(or such longer period as may be necessary to have at least
three (3) relevant transactions within the relevant period),
have been invoiced for sale by Xxxxxxxxx, in arm's length
transactions to purchasers who are not affiliated with, do not
control or are not controlled by, or under common control
with, Xxxxxxxxx; and, if no such invoiced prices are available
for a Part, the price established by the mutual agreement of
Xxxxxxxxx and AVS, or in the absence of an agreement, the
price determined to be the fair market value of such Part by a
mutually acceptable third-party appraiser.
"Governmental Authority" means any nation or government, any
state, regional, local or other political subdivision thereof,
and any entity or official exercising executive, legislative,
judicial, regulatory or administrative functions of or
pertaining to government.
"Gross Sales Price" means with respect to the sale of any
Part, the total invoice price therefor minus the sum of (a)
any freight, insurance, shipping or handling charges; (b) any
sales, use, stamp, value added, transfer, recording and other
taxes; (c) any customs and duties applicable to such sales;
and (d) any rebates, discounts or allowances.
"HSR Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended, or any successor thereto, and any
rules and regulations promulgated thereunder.
"Identified Customer" means any Person which has committed to
purchase a Part from Xxxxxxxxx.
"KAV Book Value" as to any Part included in the KAV Inventory
means the value at which such Part is carried on the books of
KAV.
"KAV Exchange Pool" means a pool of Parts out of the KAV
Inventory made available to the AVS Companies for use by them
in exchange arrangements with third parties.
"KAV Inventory" means the inventory of Parts owned by KAV and
consigned to Xxxxxxxxx under the Consignment Agreement.
"Xxxxxxxxx Approved Vendor" means a vendor that meets the
criteria of an acceptable vendor under the provisions of the
Xxxxxxxxx quality manual then in effect.
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"Xxxxxxxxx Exchange Pool" means a pool of Parts out of the
Xxxxxxxxx Inventory made available to the AVS Companies for
use by them in exchange arrangements with third parties.
"Xxxxxxxxx Inventory" means the inventory of Parts owned or
managed by Xxxxxxxxx and its Subsidiaries from time to time,
excluding in any event the KAV Inventory.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including, but not
limited to, any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing of
or agreement to give any financing statement under the Uniform
Commercial Code or comparable law of any jurisdiction in
connection with such mortgage, pledge, security interest,
encumbrance, lien or charge).
"Market Price" means the price at which a Part can be
purchased on an arm's length basis by the AVS Companies from a
third party.
"Material Adverse Change (or Effect)," with respect to any
Person, means a change (or effect) in condition (financial or
otherwise), properties, assets, liabilities, rights,
obligations, operations or business of such Person which
change (or effect), individually or in the aggregate, is
materially adverse to such condition (financial or otherwise),
properties, assets, liabilities, rights, obligations,
operations or business.
"MRO Business" means the business of maintaining, repairing
and overhauling aircraft, aircraft engines, aircraft parts and
aircraft engine parts.
"MRO Services" means services for the repair, maintenance or
overhaul of Parts.
"Non-Competition Agreement" means the Non-Competition
Agreement of even date herewith among Xxxxxxxxx, KAV, AVS and
AVSDS.
"Part" means any aircraft engine, aircraft part and aircraft
engine part, component or other item of property, and the
Records therefor, including any aircraft engine, aircraft part
or aircraft engine part, component or other item of property
that is installed in or attached or
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affixed to any part in connection with its repair,
maintenance, overhaul, modification, refurbishment,
certification or otherwise.
"Permitted Activities" means activities to be engaged in by
the AVS Companies described in Article IV, to the extent and
in accordance with the provisions thereof.
"Person" means an individual, partnership, corporation,
business, trust, joint stock company, estate, trust,
unincorporated association, joint venture, Governmental
Authority or other entity, of whatever nature.
"Qualified Offer" means a bona fide offer in writing from an
independent third party who is not an Affiliate of AVS,
setting forth the identity of the offering party, the Parts
proposed to be purchased, the consideration proposed to be
paid therefor and any other terms and conditions of the offer.
"Records" means, with respect to any Part, documentation and
other records relating to the maintenance, repair,
traceability and/or life limited status of the Parts, and any
other documentation required to be maintained with respect to
such Part by the Federal Aviation Act of 1958, as amended, and
standard industry practices.
"SEC" means the United States Securities and Exchange
Commission.
1.2 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificates, reports or other documents made or
delivered pursuant hereto or thereto, unless the context otherwise requires.
(b) All terms defined in the singular shall have a comparable
meaning when used in the plural, and vice versa.
(c) All matters of an accounting nature in connection with
this Agreement and the transactions contemplated hereby shall, except as
expressly set forth herein, be determined in accordance with GAAP applied on a
basis consistent with prior periods.
(d) As used herein, the neuter gender shall also denote the
masculine and feminine, and the masculine gender shall also denote the neuter
and feminine, where the context so permits.
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(e) Whenever the words "include," "includes" or "including"
are used in this Agreement, they shall be deemed to be followed by the words
"without limitation."
(f) Whenever this Agreement provides for a payment to be made
by any party, such payment shall be made by wire transfer of immediately
available United States funds.
(g) When a reference is made in this Agreement to an article,
section, paragraph, clause, schedule or exhibit, such reference shall be deemed
to be to this Agreement unless otherwise indicated.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF XXXXXXXXX
As a material inducement to AVS and AVSDS to enter into this Agreement
and to consummate the transactions contemplated hereby, Xxxxxxxxx makes the
following representations and warranties to AVS and AVSDS:
2.1 Corporate Status. Xxxxxxxxx is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has the requisite corporate power and authority to own or lease its
properties and to carry on its business as now being conducted.
2.2 Corporate Power and Authority. Xxxxxxxxx has the corporate power
and authority to execute and deliver this Agreement to perform its obligations
hereunder and to consummate the transactions contemplated hereby. Xxxxxxxxx has
taken all corporate actions necessary to authorize the execution and delivery of
this Agreement, the performance of its obligations hereunder and the
consummation of the transactions contemplated hereby.
2.3 Enforceability. This Agreement has been duly executed and delivered
by Xxxxxxxxx and constitutes the legal, valid and binding obligation of
Xxxxxxxxx, enforceable against Xxxxxxxxx in accordance with their terms, except
as the same may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally and general equitable principles regardless of whether such
enforceability is considered in a proceeding at law or in equity.
2.4 No Violation. Except as set forth in Schedule 2.4, the execution or
delivery of this Agreement, the performance by Xxxxxxxxx of its obligations
hereunder or the consummation by it of the transactions contemplated hereby do
not (i) contravene any provision of the Restated Certificate of Incorporation or
By-Laws of Xxxxxxxxx, each as amended to date, (ii) violate or conflict with any
law, statute, ordinance, rule, regulation, decree, writ, injunction, judgment or
order of any Governmental Authority or of any arbitration award which is either
applicable to, binding upon or enforceable against Xxxxxxxxx, to the extent such
violation or conflict could have a Material Adverse
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Effect on Xxxxxxxxx, (iii) conflict with, result in any breach of, or constitute
a default (or an event which would, with the passage of time or the giving of
notice or both, constitute a default) under, or give rise to a right to
terminate, amend, modify, abandon or accelerate, any Contract which is
applicable to, binding upon or enforceable against Xxxxxxxxx, (iv) result in or
require the creation or imposition of any Lien upon or with respect to any of
the property or assets of Xxxxxxxxx or (v) require the consent, approval,
authorization or permit of, or filing with or notification to, any Governmental
Authority, any court or tribunal or any other Person, except any SEC and other
filings required to be made by Xxxxxxxxx and any filings required to be made by
the parties under the HSR Act, if any.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF AVS AND AVSDS
As a material inducement to Xxxxxxxxx to enter into this Agreement and
to consummate the transactions contemplated, AVS and AVSDS, jointly and
severally, make the following representations and warranties to Xxxxxxxxx:
3.1 Corporate Status. Each of AVS and AVSDS is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has the requisite power and authority to own or lease its
properties and to carry on its business as now being conducted. Each of AVS and
AVSDS is legally qualified to transact business as a foreign corporation, and is
in good standing as such, in those jurisdictions set forth on Schedule 3.1.
There is no pending or Threatened proceeding for the dissolution, liquidation,
insolvency or rehabilitation of AVS or AVSDS.
3.2 Power and Authority. Each of AVS and AVSDS has the corporate power
and authority to execute and deliver this Agreement, to perform its respective
obligations hereunder and thereunder and to consummate the transactions
contemplated hereby and thereby. Each of AVS and AVSDS has taken all corporate
action necessary to authorize the execution and delivery of this Agreement, the
performance of its obligations hereunder and the consummation of the
transactions contemplated hereby.
3.3 Enforceability. This Agreement has been duly executed and delivered
by each of AVS and AVSDS, and constitutes the legal, valid and binding
obligation of each of them, enforceable against each of them in accordance with
its terms, except as the same may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and general equitable principles regardless of
whether such enforceability is considered in a proceeding at law or in equity.
3.4 No Violation. Except as set forth in Schedule 3.4, the execution or
delivery of this Agreement by AVS and AVSDS, the performance by AVS and AVSDS of
their respective
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obligations hereunder or the consummation by AVS and AVSDS of the transactions
contemplated hereby do not (i) contravene any provision of the Certificate of
Incorporation or By-Laws, each as amended to date, of AVS and AVSDS, (ii)
violate or conflict with any law, statute, ordinance, rule, regulation, decree,
writ, injunction, judgment or order of any Governmental Authority or of any
arbitration award which is either applicable to, binding upon or enforceable
against AVS or AVSDS, to the extent such violation or conflict could have a
Material Adverse Effect on AVS or AVSDS, (iii) conflict with, result in any
breach of, or constitute a default (or an event which would, with the passage of
time or the giving of notice or both, constitute a default) under, or give rise
to a right to terminate, amend, modify, abandon or accelerate, any Contract
which is applicable to, binding upon or enforceable against AVS or AVSDS, (iv)
result in or require the creation or imposition of any Lien upon or with respect
to any of the property or assets of AVS or AVSDS, or (v) require the consent,
approval, authorization or permit of, or filing with or notification to, any
Governmental Authority, any court or tribunal or any other Person, except any
SEC and other filings required to be made by AVS and any filings required to be
made by the parties under the HSR Act, if any.
ARTICLE IV
AGREEMENT TO COOPERATE
The parties hereto wish to cooperate with each other to enhance their
respective businesses by establishing preferred provider relationships as
follows:
4.1 Purchases of Required Parts by the AVS Companies. If the AVS
Companies shall desire to purchase any Parts for use in its MRO Business or for
any other purpose (each a "Required Part"), it shall purchase such Part as
follows:
(a) If the KAV Inventory shall include a Part that is
identical in part number and condition (serviceable, unserviceable, overhauled
or new) to the Required Part, then the AVS Companies shall purchase the Required
Part from Xxxxxxxxx out of the KAV Inventory if the price quoted therefor by
Xxxxxxxxx is less than or equal to the Fair Market Value of such Part (or if the
Fair Market Value of such Part shall be less than the KAV Book Value of such
Part, then the AVS Companies shall purchase the Required Part from Xxxxxxxxx out
of the KAV Inventory if the price quoted therefor by Xxxxxxxxx is less than or
equal to the lesser of (a) the KAV Book Value of such Part, or (b) 115% of the
Fair Market Value of such Part) (in any such case, the "KAV Maximum Price").
(b) If the AVS Companies shall not for any reason have
purchased the Required Part from Xxxxxxxxx out of the KAV Inventory pursuant to
clause (a) above and the Xxxxxxxxx Inventory shall include a Part that is
identical in part number and condition (serviceable, unserviceable, overhauled
or new) to the Required Part, then the AVS Companies shall purchase the Required
Part from Xxxxxxxxx out of the Xxxxxxxxx Inventory if the price quoted therefor
by Xxxxxxxxx is less than or equal to the Fair Market Value of such Part.
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(c) If the AVS Companies shall not for any reason have
purchased the Required Part from Xxxxxxxxx out of the KAV Inventory pursuant to
clause (a) above or out of the Xxxxxxxxx Inventory pursuant to clause (b) above,
then the AVS Companies shall, at the election of Xxxxxxxxx, purchase the
Required Part using Xxxxxxxxx as a broker if Xxxxxxxxx can secure such Required
Part for a price less than or equal to the Fair Market Value of such Part in a
timely manner based on customary industry standards and customer time
parameters.
(d) If the AVS Companies shall not for any reason have
purchased the Required Part from Xxxxxxxxx out of the KAV Inventory pursuant to
clause (a) above or out of the Xxxxxxxxx Inventory pursuant to clause (b) above,
or shall not have purchased the Required Part using Xxxxxxxxx as a broker
pursuant to clause (c) above, then the AVS Companies shall have the right to
purchase the Required Part from any third party.
(e) Notwithstanding the foregoing, (i) the AVS Companies may
purchase factory new parts directly from original equipment manufacturers (or
their authorized distributors) without complying with clauses (a) through (d)
above, and (ii) Xxxxxxxxx shall have the right upon receipt of any request from
the AVS Companies to elect not to sell any Parts out of the KAV Inventory or the
Xxxxxxxxx Inventory even if a Part identical in part number and condition
(serviceable, unserviceable, overhauled or new) to the Required Part is included
in the KAV Inventory and/or the Xxxxxxxxx Inventory.
4.2 Purchases of MRO Services by Xxxxxxxxx for KAV Inventory. If
Xxxxxxxxx shall desire to purchase any MRO Services (the "Required MRO
Services") for the repair, maintenance or overhaul of KAV Inventory, it shall
purchase such MRO Services as follows:
(a) If Xxxxxxxxx shall desire to purchase any Required MRO
Services in connection with the sale of any Part included in the KAV Inventory
to an Identified Customer, then Xxxxxxxxx shall purchase the Required MRO
Services from the AVS Companies if the AVS Companies (i) are Xxxxxxxxx Approved
Vendors with respect to the provisions of the Required MRO Services for such
Part, (ii) have the capability to provide the Required MRO Services, (iii) can
complete the Required MRO Services within time parameters acceptable to
Xxxxxxxxx and the Identified Customer, and (iv) can complete the Required MRO
Services at a cost to Xxxxxxxxx of no more than 115% of the lowest price at
which Xxxxxxxxx can secure such Required MRO Services from a third party;
provided, however, in no event shall Xxxxxxxxx be required to purchase the
Required MRO Services from the AVS Companies if the Identified Customer requests
the use of another vendor in connection with the provision of such Required MRO
Services.
(b) If Xxxxxxxxx shall desire to purchase any Required MRO
Services in connection with any Part included in the KAV Inventory other than in
connection with the sale of such Part to an Identified Customer, then Xxxxxxxxx
shall purchase the Required MRO Services from the AVS Companies if the AVS
Companies (i) are Xxxxxxxxx Approved Vendors with respect to the provisions of
the Required MRO Services for such Part, (ii) have the capability to provide the
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Required MRO Services, (iii) can complete the Required MRO Services within time
parameters reasonably acceptable to Xxxxxxxxx, and (iv) can complete the
Required MRO Services at a cost to Xxxxxxxxx of no more than 115% of the lowest
price at which Xxxxxxxxx can secure such Required MRO Services from a third
party.
4.3 Purchases of MRO Services by Xxxxxxxxx for Xxxxxxxxx Inventory.
Xxxxxxxxx shall endeavor to use the AVS Companies from time to time if it shall
desire to purchase any MRO Services for the repair, maintenance or overhaul of
any Part included in the Xxxxxxxxx Inventory, and shall consider, among other
things, the following factors in connection with its decision: (i) whether the
AVS Companies are Xxxxxxxxx Approved Vendors with respect to the provisions of
such MRO Services for such Part; (ii) whether the AVS Companies have the
capability to provide such MRO Services; (iii) whether the AVS Companies can
complete such MRO Services within time parameters acceptable to Xxxxxxxxx (and,
if applicable, its Identified Customer); (iv) whether the AVS Companies can
complete such MRO Services at a cost acceptable to Xxxxxxxxx (and, if
applicable, its Identified Customer); and (v) the preferences of any customers
of Xxxxxxxxx.
4.4 Provision of Parts for AVS Exchange Pools. The AVS Companies shall
have the right, in their discretion, to maintain from time to time Exchange
Pools at one or more Designated Locations which they may make available for
exchange arrangements with their customers. AVS agrees that it shall obtain the
Parts required from time to time for such Exchange Pools (the "Required Exchange
Pool Parts") as follows:
(a) If the KAV Inventory shall include a Part that is
identical in part number and condition (serviceable, unserviceable, overhauled
or new) to the Required Exchange Pool Part, then the AVS Companies shall obtain
and Xxxxxxxxx shall make available the Required Exchange Pool Part from
Xxxxxxxxx out of the KAV Inventory.
(b) If the KAV Inventory shall not include a Part that is
identical in part number and condition (serviceable, unserviceable, overhauled
or new) to the Required Exchange Pool Part and the Xxxxxxxxx Inventory shall
include a Part that is identical in part number and condition (serviceable,
unserviceable, overhauled or new) to the Required Exchange Pool Part which
Xxxxxxxxx, in its sole discretion, elects to make available to the AVS Companies
for the Exchange Pools, then the AVS Companies shall obtain the Required
Exchange Pool Part from Xxxxxxxxx out of the Xxxxxxxxx Inventory.
(c) If neither the KAV Inventory nor the Xxxxxxxxx Inventory
shall include a Part that is identical in part number and condition
(serviceable, unserviceable, overhauled or new) to the Required Exchange Pool
Part, or if the Xxxxxxxxx Inventory shall include such a Part but Xxxxxxxxx, in
its sole discretion, elects not to make such part available to the AVS Companies
for the Exchange Pools, then the AVS Companies shall have the right to obtain
the Required Exchange Pool Part from any third party.
(d) If any customer of the AVS Companies shall request the
exchange of a Part
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with any Part from the Exchange Pools which originate from the KAV Inventory or
the Xxxxxxxxx Inventory then:
(i) the AVS Companies may make such Part available to
its customer for exchange and shall remit to Xxxxxxxxx an
exchange fee in an amount equal to the amount set forth on
Exhibit A attached hereto (as the same may be modified from
time to time by the parties);
(ii) the AVS Companies shall at the sole cost of the
AVS Companies rework the Part received from such customer in
exchange to the same or better condition (with appropriate
records and tagging) as the Part provided by the AVS Companies
in exchange therefor;
(iii) the AVS Companies shall charge its customer
such amount as it may in its sole discretion deem appropriate
for the MRO Services provided pursuant to subsection (ii)
above and shall be entitled to retain the full amount thereof;
(iv) upon receipt of a Part from a customer in
exchange for a Part which originates from the KAV Inventory,
the Part received from such customer shall automatically,
without any action by any party, become part of the KAV
Inventory to be held in the KAV Exchange Pool (provided that
this shall in no way affect any obligations of the AVS
Companies to rework such Part in accordance with subsection
(ii) above);
(v) upon receipt of a Part received from a customer
in exchange for a Part which originates from the Xxxxxxxxx
Inventory, the Part received from such customer shall
automatically, without any action by any party, become part of
the Xxxxxxxxx Inventory to be held in the Xxxxxxxxx Exchange
Pool (provided that this shall in no way affect any obligation
of the AVS Companies to rework such Part in accordance with
subsection (ii) above);
(e) If Xxxxxxxxx shall at any time desire to sell any Part
included in the Exchange Pool which originates from the KAV Inventory or the
Xxxxxxxxx Inventory, then Xxxxxxxxx shall provide the AVS Companies with notice
thereof, and the AVS Companies shall, as long as such Part is not already
committed to a customer's exchange transaction, ship the Part to or at the
direction of Xxxxxxxxx f.o.b. AVS Company dock within one (1) Business Day of
notice thereof from Xxxxxxxxx.
(f) If the AVS Companies shall at any time determine that any
part received from a customer in exchange for a Part which originates from the
KAV Inventory or the Xxxxxxxxx Inventory is BER and such part is not thereafter
replaced by the customer with a non-BER part, then the AVS Companies shall
purchase from Xxxxxxxxx the Part delivered to such customer in connection with
the exchange transaction at the price set forth in Exhibit A (as the same may be
amended from time to time).
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(g) If the AVS Companies shall desire to replace any Part sold
by Xxxxxxxxx or the AVS Companies out of the Exchange Pool, the AVS Companies
shall replace such Part in accordance set forth in subsections 4.4(a), (b) and
(c) above.
(h) The AVS Companies shall maintain all Parts held in the
Exchange Pool that originate from the KAV Inventory and all Parts held in the
Exchange Pool that originate from the Xxxxxxxxx Inventory in separate, secure,
uniquely identified warehouse areas. The AVS Companies shall cooperate with
Xxxxxxxxx in the preparation and filing of all forms (including, without
limitation, filings of financing statements under the Uniform Commercial Code as
in effect in each jurisdiction deemed applicable by Xxxxxxxxx) deemed necessary
or advisable by Xxxxxxxxx to protect and preserve Xxxxxxxxx'x or KAV's, as
applicable, right, title and interest in and to the Parts held in the Exchange
Pool that originate from the KAV Inventory or that originate from the Xxxxxxxxx
Inventory.
4.5 Disposal of Parts by AVS Companies. If any of the AVS Companies
shall at any time acquire any Parts (including, without limitation, any Parts
which it acquires as a condition to securing MRO Business, in connection with
the acquisition of any Person, or surplus Parts which arise in connection with
the performance of MRO Services) and elects, in its discretion, to dispose of
such Parts, then it shall do so as follows:
(a) The AVS Companies shall promptly deliver written notice to
Xxxxxxxxx of the Parts which it desires to dispose of, setting forth for each
such Part, the quantity and condition thereof (the "Sale Notice").
(b) Xxxxxxxxx shall have the right exercisable by it by
delivering written notice to AVS within thirty (30) days of receipt of a Sale
Notice to either (i) purchase the Parts in accordance with subsection (c) below,
or (ii) sell such Parts on behalf of the AVS Companies pursuant to a consignment
arrangement in accordance with subsection (d) below.
(c) If Xxxxxxxxx shall elect to purchase the Parts proposed to
be disposed of by the AVS Companies, then Xxxxxxxxx shall have the right to
purchase such Parts at the price and on terms mutually agreed to by Xxxxxxxxx
and AVS.
(d) If Xxxxxxxxx shall elect not to purchase the Parts
proposed to be disposed of by the AVS Companies, or if Xxxxxxxxx and AVS cannot
agree on the price and terms of such sale, then Xxxxxxxxx shall have the right
exercisable by it by delivering written notice to AVS within thirty (30) days of
receipt of a Sale Notice to sell such Parts on behalf of the AVS Companies
pursuant to the Consignment Agreement attached hereto as Exhibit B and at the
special consignment rate. The "Special Consignment Rate" shall mean a
consignment fee of 8% on the first $2,000,000 of the Gross Sales Price (prorated
for any partial calendar year) of the purchase price of such Parts invoiced by
Xxxxxxxxx during each calendar year, and a consignment fee of 25% on amounts
over $2,000,000 of the Gross Sales Price (prorated for any partial calendar
year) of the purchase price of such Parts
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invoiced by Xxxxxxxxx during such calendar year.
(e) If Xxxxxxxxx shall (i) notify AVS in writing of its
election not to purchase the Parts in accordance with subsection 4.5(c) above
and not to sell such Parts on behalf of the AVS Companies pursuant to a
consignment arrangement in accordance with subsection 4.5(d) above, or (ii) fail
to respond to any Sale Notice within the time period set forth in subsection
4.5(b) above, then the AVS Companies shall be free to sell or consign such Parts
in such manner and to such parties as they may deem appropriate.
4.6 Aircraft Interior Design ("AID"). AVS may continue to operate the
business conducted by AID in the same manner as such business is conducted by
AID as of the date hereof, and may expand the scope of such business only so
long as such expanded scope shall not in any way violate any terms of this
Agreement or the Non-Competition Agreement.
4.7 Purchases or Leases of Engines by Timco Engine Center; Certain
Engine. If Timco Engine Center shall at any time desire to purchase or lease (as
lessee) aircraft engines as required by its engine shop support requirements
agreements, it shall do so in accordance with the provisions of Sections 4.1(a),
(b) and (c) hereof. The provisions of Section 4.5 hereof shall be inapplicable
to the sale by Timco Engine Center to Express One of that certain Xxxxx &
Xxxxxxx model JT8D-7B aircraft engine bearing manufacturer's serial number
649440.
4.8 Purchases of MRO Services by AVS Companies. The AVS Companies shall
endeavor to use Xxxxxxxxx from time to time if it shall desire to purchase any
MRO Services for the repair, maintenance, overhaul or conversion of C-130
aircraft, and shall consider, among other things, the following factors in
connection with its decision: (i) whether Xxxxxxxxx is an AVS Approved Vendor
with respect to the provisions of such MRO Services for such aircraft, (ii)
whether Xxxxxxxxx has the capacity to provide such MRO Services; (iii) whether
Xxxxxxxxx can complete such MRO Services within time parameters acceptable to
the AVS Companies (and, if applicable, its Identified Customer); (iv) whether
Xxxxxxxxx can complete such MRO Services at a cost acceptable to the AVS
Companies (and, if applicable, its Identified Customer); and (v) the preferences
of any customers of the AVS Companies.
4.9 Bidding. AVS and Xxxxxxxxx will endeavor to cooperate on a
non-exclusive basis in developing joint bids which enhance the likelihood of bid
success for each party. The parties may also participate in existing bids held
by the parties.
4.10 Sale of Parts by Aviation Sales Leasing Company ("ASLC").
Notwithstanding anything to the contrary contained in Section 4.5, if ASLC shall
at any time elect to dispose of any Parts owned by it and on lease to Air
France, it shall only do so as follows:
(a) ASLC shall obtain a Qualified Offer to purchase such Parts
and shall promptly deliver written notice to Xxxxxxxxx attaching a copy of the
Qualified Offer and irrevocably offering to sell such Parts to Xxxxxxxxx on the
terms contained in the Qualified Offer.
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(b) Xxxxxxxxx shall have the right exercisable by it by
delivering written notice to ASLC within seven (7) days after receipt of any
notice pursuant to Section 4.10(a) above to purchase such Parts on the terms set
forth in the Qualified Offer, which purchase shall be consummated on a date
agreed to by the parties (not to exceed thirty (30) days from the receipt of
notice under Section 4.10(a)).
If Xxxxxxxxx shall elect not to purchase the Parts proposed to be sold by ASLC
(or shall fail to timely respond to a notice received pursuant to Section
4.10(a) above), ASLC shall have the right to sell such Parts to the offeror on
the terms set forth in the Qualified Offer within thirty (30) days of the
receipt of notice under Section 4.10(a) above. If ASLC shall not sell such Parts
to the offeror pursuant to the Qualified Offer within such thirty (30) day
period, it shall thereafter be required to comply with the provisions of this
Section prior to any sale of such Parts.
Notwithstanding the foregoing, all other parts owned by ASLC as of the date of
the Asset Purchase Agreement may be sold or consigned in such manner and with
and to such parties as AVS may deem appropriate without any further compliance
with the provisions of this Agreement.
4.11 Violations. In the event of a disposal of a Part other than in
conformity with Section 4.5 or Section 4.10 hereof, in addition to any other
remedy Xxxxxxxxx may have, the AVS Companies shall pay to Xxxxxxxxx 25% of the
Gross Sale Price, as applicable, of such Part.
4.12 Performance. In connection with any parties performance under this
Article IV, the parties agree that the time period for each parties performance
of such obligation shall be in accordance with customary industry standards. In
connection with requests for Parts, the following response times for the
provision of notice of availability of requested Parts are customary industry
standards:
Aircraft on Ground - 2 hours;
Expedite - 1 day; and
Replenishing - 3 days.
ARTICLE V
TERMINATION
This Agreement may be terminated as follows:
(a) by mutual written consent of the parties; or
(b) upon sixty (60) days prior written notice by any of the
parties hereto after the KAV has been dissolved or liquidated; provided,
however, that notwithstanding any termination of this Agreement for any reason,
Section 4.5 and Section 4.10 of this Agreement shall survive until
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the expiration of the Restriction Period as term is defined in the
Non-Competition Agreement.
ARTICLE VI
GENERAL PROVISIONS
6.1 Notices. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by certified
or registered mail (first class postage pre-paid), guaranteed overnight
delivery, or facsimile transmission if such transmission is confirmed by
delivery by certified or registered mail (first class postage pre-paid) or
guaranteed overnight delivery, to the following addresses and telecopy numbers
(or to such other addresses or telecopy numbers which such party shall designate
in writing to the other party):
(a) if to Xxxxxxxxx to:
Xxxxxxxxx Industries, Inc.
0000 Xxxxxxxxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Zivi X. Xxxxxx, President
Telecopy: (000) 000-0000
with a copy to:
Akerman, Senterfitt & Xxxxxx, P.A.
000 Xxxx Xxx Xxxx Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. March, Esq.
Telecopy: (000) 000-0000
(b) if to AVS or AVSDS to:
Aviation Sales Company
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxx, Chairman
Telecopy: (000) 000-0000
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with a copy to:
Xxxxx & Xxxxxx
0000 Xxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: J. Xxxxxxx Xxxxx, Esq.
Telecopy: (000) 000-0000
Notice shall be deemed given on the date sent if sent by facsimile transmission
and on the date delivered (or the date of refusal of delivery) if sent by
overnight delivery or certified or registered mail.
6.2 Entire Agreement. This Agreement (including the exhibits and
schedules attached hereto and thereto) and the other documents delivered
pursuant hereto and thereto contains the entire understanding of the parties in
respect of its subject matter and supersedes all prior agreements and
understandings (oral or written) between or among the parties with respect to
such subject matter. The exhibits and schedules constitute a part of the
document to which they are attached as though set forth in full thereon.
6.3 Amendment; Waiver. This Agreement may not be modified, amended,
supplemented, canceled or discharged, except by written instrument executed by
all parties. No failure to exercise, and no delay in exercising, any right,
power or privilege under this Agreement shall operate as a waiver, nor shall any
single or partial exercise of any right, power or privilege hereunder preclude
the exercise of any other right, power or privilege. No waiver of any breach of
any provision shall be deemed to be a waiver of any preceding or succeeding
breach of the same or any other provision, nor shall any waiver be implied from
any course of dealing between the parties. No extension of time for performance
of any obligations or other acts hereunder or under any other agreement shall be
deemed to be an extension of the time for performance of any other obligations
or any other acts. Except as otherwise provided herein, the rights and remedies
of the parties under this Agreement are in addition to all other rights and
remedies, at law or equity, which they may have against each other.
6.4 Binding Effect; Assignment. The rights and obligations of this
Agreement shall bind and inure to the benefit of the parties and their
respective heirs, executors, personal representatives, trustees, guardians,
attorneys-in-fact, successors and assigns. Nothing expressed or implied herein
shall be construed to give any other person any legal or equitable rights
hereunder. Except as expressly provided herein, no party may assign any of its
rights or delegate any of its obligations under this Agreement without the prior
written consent of the non-assigning or non-delegating parties; provided,
however, that notwithstanding anything to the contrary contained in this
Agreement, (1) either party may assign any or all of its rights and privileges
under this Agreement to its lenders from time to time, without the consent of
the other parties, provided that any such assignees shall take such assignment
subject to all of the terms, conditions and limitations set forth in the
Agreement, and (2) either party may assign its rights and delegate its
obligations under this
16
Agreement to any direct or indirect wholly-owned Subsidiary of the respective
party, and upon such assignment, such Subsidiary shall have full rights and
obligations under this Agreement as if it were a party hereto. Such Subsidiary
shall be a third-party beneficiary with respect to all rights and remedies
provided hereunder or otherwise provided at law or in equity. In the case of any
assignment by a party, such party shall remain fully responsible and liable for
all of its obligations hereunder.
6.5 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original but all of which taken together
shall constitute one and the same instrument.
6.6 Interpretation. Any reference made in this Agreement to an article,
section, paragraph, clause, schedule or exhibit shall be deemed to be to the
referenced article, section, paragraph, clause, schedule or exhibit of this
Agreement unless otherwise indicated. The headings contained in this Agreement
and on the exhibits and schedules hereto are for reference purposes only and
shall in no way affect in any way the meaning or interpretation of this
Agreement or the exhibits or schedules hereto. Time shall be of the essence in
this Agreement.
6.7 Severability. If any word, phrase, sentence, clause, section,
subsection or provision of this Agreement as applied to any party or to any
circumstance is adjudged by a court to be invalid or unenforceable, the same
will in no way affect any other circumstance or the validity or enforceability
of any other word, phrase, sentence, clause, section, subsection or provision of
this Agreement. If any provision of this Agreement, or any part thereof, is held
to be unenforceable because of the duration of such provision or the area
covered thereby or otherwise, the parties agree that the court making such
determination shall have the power to reduce the duration and/or area of such
provision, and/or to delete specific words or phrases, and in its reduced form,
such provision shall then be enforceable and shall be enforced.
6.8 Governing Law; Jurisdiction. This Agreement shall be construed in
accordance with and governed for all purposes by the laws of the State of
Florida applicable to contracts executed and to be wholly performed within such
State. Any suit, action or proceeding against Xxxxxxxxx or AVS or AVSDS arising
out of, or with respect to, this Agreement or any judgment entered by any court
in respect thereof shall be brought in the courts of Broward County, Florida or
in the U.S. District Court for the Southern District of Florida and each party
hereby irrevocably (a) accepts and consents to the exclusive personal
jurisdiction of such courts for the purpose of any suit, action or proceeding,
(b) waives, to the fullest extent permitted by law, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or any judgment entered by any
court in respect thereof brought in such courts, (c) waives any claim that any
suit, action or proceedings brought in such courts has been brought in an
inconvenient forum, and (d) agrees that service of process, summons, notice or
document by U.S. registered mail in accordance with this Agreement shall be
effective service of process for any action, suit or proceeding brought against
a party in any such court.
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6.9 Arm's Length Negotiations. Each party hereto expressly agrees that
(a) before executing this Agreement, it has fully informed itself of the terms,
contents, conditions and effects of this Agreement; (b) it has relied solely and
completely upon its own judgment in executing this Agreement; (c) it has had the
opportunity to seek and has obtained the advice of counsel before executing this
Agreement; (d) it has acted voluntarily and of its own free will in executing
this Agreement; (e) it is not acting under duress, whether economic or physical,
in executing this Agreement; and (f) this Agreement is the result of arm's
length negotiations conducted by and among the parties and their respective
counsel.
6.10 Additional Covenants of AVS. AVS covenants and agrees that it
shall cause each of the AVS Companies to comply with the terms and conditions of
this Agreement.
6.11 Additional Covenants of Xxxxxxxxx. Xxxxxxxxx covenants and agrees
that it shall cause each of its subsidiaries to comply with the terms and
conditions of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
XXXXXXXXX INDUSTRIES, INC., a Delaware
corporation
By: /s/ Zivi X. Xxxxxx
--------------------------------------------
Zivi X. Xxxxxx
President and Chief Executive Officer
AVIATION SALES COMPANY, a Delaware
corporation
By: /s/ Xxxx X. Xxxxx
--------------------------------------------
Xxxx X. Xxxxx
Chairman and Chief Executive Officer
AVIATION SALES DISTRIBUTION
SERVICES COMPANY, a Delaware corporation
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------------
Xxxxxx Xxxxxxx
President
