EXHIBIT 10.14
LICENSE AGREEMENT
This LICENSE AGREEMENT (the "License") dated as of the 1st day of
December, 2000 (the "Effective Date"), is by and between AVIATION SALES COMPANY,
a Delaware corporation ("Licensor"), KAV INVENTORY, LLC, a Delaware limited
liability company ("KAV"), and XXXXXXXXX INDUSTRIES, INC., a Delaware
corporation ("Xxxxxxxxx", and together with KAV the "Licensees").
RECITALS:
WHEREAS, Licensor, Xxxxxxxxx and Aviation Sales Distribution Services
Company ("ASDSC"), a subsidiary of Licensor, have entered into that certain
Asset Purchase Agreement dated as of September 20, 2000 (the "Asset Purchase
Agreement"), relating to the purchase and sale of the business, operations,
properties and assets of ASDSC other than ASDSC's inventory of aircraft engines,
aircraft parts and aircraft engine parts (the "Business") (all capitalized terms
and phrases not otherwise defined herein shall have the meaning ascribed to them
in the Asset Purchase Agreement);
WHEREAS, pursuant to the Asset Purchase Agreement, certain Excluded
Assets include various names, trade names, trademarks, service marks, slogans,
logos and designs of the Licensor, the rights to which are not being conveyed to
Xxxxxxxxx under the Asset Purchase Agreement, including without limitation, the
xxxx "Aviation Sales"; and
WHEREAS, Licensor and Licensees both desire that Licensees be granted a
limited right to use the xxxx "Aviation Sales" (the "Trademark"), for a limited
time and in a limited manner following the Closing Date of the Asset Purchase
Agreement;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein and in
the Asset Purchase Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and intending to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE I
GRANT OF LICENSE
Section 1.1. Grant. Upon the terms and conditions set forth in this
License, Licensor hereby grants to Licensees and Licensees hereby accept for the
Term (as that term is defined in Section 5.1 below) of this License a
non-exclusive, royalty-free, world-wide license and right to use the Trademark
for the limited purposes set forth herein.
Section 1.2. Limited Use of Name. Xxxxxxxxx is only granted the right
to use the Trademark in connection with Xxxxxxxxx'x redistribution of aircraft
engines, aircraft parts and aircraft engine parts, including, without
limitation, on or in connection with business signs, printed literature, sales
materials, purchase orders and sales, and maintenance and license agreements.
Further, Xxxxxxxxx is only granted the right to use the Trademark immediately
after the name
"Xxxxxxxxx" (e.g., "Xxxxxxxxx/Aviation Sales," "Xxxxxxxxx Aviation Sales" or
"Xxxxxxxxx-Aviation Sales"), and in no other manner.
Section 1.3. Use of Items Bearing Name. Notwithstanding anything to the
contrary contained herein (a) Xxxxxxxxx shall have the limited right to use the
Trademark without the name "Xxxxxxxxx" for a period of one (1) year following
the Effective Date solely in order to use up letterhead to the extent in
existence as of the Effective Date, invoices (but only for a period of ninety
days after the Effective Date), general stationary, labels, sales and
promotional materials bearing the Trademark, and (b) Licensees shall have the
right to dispose of any inventory, including without limitation, records and
documentation, on which the Trademark appears to the extent in existence as of
the Effective Date (whether on a sticker, tag, documentation or otherwise).
Section 1.4. Usage and Quality. In order to protect the goodwill
associated with the Trademark and in order to prevent public deception,
Licensees' use of the Trademark shall conform to such usage guidelines and
quality control standards as reasonably prescribed by Licensor to Licensees from
time to time in writing.
Section 1.5. Reservation of Rights. Licensor reserves all rights not
expressly granted to Licensees hereunder.
ARTICLE II
OWNERSHIP
Licensees acknowledge that, as between Licensor and Licensees, the
Trademark and other proprietary rights in and to the Trademark are owned
exclusively by Licensor. Licensees recognize that they shall have no interest in
or claim to the Trademark, except for the limited right to use same pursuant to
this License and subject to its terms and conditions. Licensees further
acknowledge that Licensees' usage of the Trademark, in whatever form, shall
inure solely to the benefit of the Licensor, and that Licensor has the right, in
accordance with the provisions of Section 5.2, to terminate this License as to
any Licensee in the event that such Licensee asserts any rights in or to the
Trademark other than those granted to such Licensee herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
(a) Licensor and Licensees represent and warrant to each other that, as
of the Effective Date, the execution, delivery and performance by Licensor and
Licensees of this License are within Licensor's and Licensees' respective powers
and have been duly authorized by all necessary action.
(b) To Licensor's knowledge, no claims have been asserted by any person
(i) against the use of the Trademark, or (ii) challenging the ownership,
validity or effectiveness of the Trademark.
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ARTICLE IV
COVENANTS OF LICENSEES
At all times during the Term of this License and thereafter, Licensees
covenant and agree as follows:
(i) Licensees shall not attack the title of Licensor in and to
the Trademark and shall not attack the validity of the rights granted
hereunder; and
(ii) Licensees shall not harm, misuse or bring into disrepute
the Trademark, but on the contrary, shall maintain the value and
reputation thereof, and shall not take any action that could adversely
affect Licensor's ownership of the Trademark or its distinctiveness.
ARTICLE V
TERM AND TERMINATION
Section 5.1. Term. The term of this License (the "Term") shall begin on
the Effective Date and shall automatically terminate on the date that is
thirty-six (36) months after the Effective Date, unless otherwise sooner
terminated by Licensor, as provided for herein.
Section 5.2. Termination. Licensor has the right to immediately
terminate this License as to any Licensee upon such Licensee's failure to cure
within twenty (20) days after receipt of written notice of such Licensee's
failure to comply with any term, condition or covenant of this License.
Section 5.3. Effect of Termination. Upon the termination of this
License as to any Licensee, such Licensee shall immediately cease to use the
Trademark; provided, however, that termination of this License shall have no
effect upon such Licensee's rights granted pursuant to Section 1.3(b); and,
provided further, however, that termination of this License with respect to any
such Licensee shall not affect the License granted hereunder to such other
Licensee.
Section 5.4. Other Remedies. Termination of this License shall be in
addition to, and not in lieu of, other legal and equitable remedies available to
Licensor. The rights of Licensor hereunder shall be cumulative of any and all
other rights that Licensor may have against Licensees. The exercise by Licensor
of any right or remedy hereunder or under any other agreement, or at law or
equity, shall not preclude the concurrent or subsequent exercise by Licensor of
any other right or remedy.
Section 5.5. Survival of Terms. Licensees' obligations set forth in
Article II (Ownership), Article IV (Covenants of Licensee), Article V (Term and
Termination) and Article VI (Miscellaneous) shall survive termination of this
License.
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ARTICLE VI
MISCELLANEOUS
Section 6.1. No Assignment or Sublicense. Except as otherwise provided
herein, Xxxxxxxxx shall not assign or in any manner transfer, whether
voluntarily or involuntarily, this License or interest herein, or grant any
sublicense of the rights herein granted to Xxxxxxxxx without the prior written
consent of Licensor, which consent shall be in Licensor's sole and absolute
discretion. Consent by Licensor to any such sublicense or assignment shall not
operate as a waiver of Licensor's rights with respect to any subsequent
sublicenses or assignments. Notwithstanding the foregoing, either Licensee may
assign its rights hereunder in accordance with Section 6.7 hereof.
Section 6.2. Counterparts. This License may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party. Copies of executed counterparts
transmitted by telecopy, telefax or other electronic transmission service shall
be considered original executed counterparts for purposes of this Section,
provided receipt of copies of such counterparts is confirmed.
Section 6.3. Governing Law. This License shall be governed by and
construed in accordance with the laws of the State of Florida without reference
to the choice of law principles thereof.
Section 6.4. Entire Agreement. This License is executed pursuant to the
terms of the Asset Purchase Agreement and contains the entire agreement between
the parties with respect to the subject matter hereof and there are no
agreements, understandings, representations or warranties between the parties
other than those set forth or referred to herein.
Section 6.5. Force Majeure. If the performance by Licensor or either
Licensee of any provision of this License is delayed or prevented by any act of
God, strike, lockout, shortage of material or labor, restriction by any
governmental authority, civil riot, flood, and any other cause not within the
control of Licensor or such Licensee, as the case may be, then the period for
Licensor's or such Licensee's performance of the provision shall be
automatically extended for the same amount of time that Licensor or such
Licensee is so delayed or hindered.
Section 6.6. Notices. All notices and other communications hereunder
shall be sufficiently given for all purposes hereunder if in writing and
delivered personally, sent by documented overnight delivery service or, to the
extent receipt is confirmed, telecopy, telefax or other electronic transmission
service to the appropriate address or number as set forth below. Notices to
Licensor shall be addressed to:
Aviation Sales Company
0000 Xxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. 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
or at such other address and to the attention of such other Person as Licensor
may designate by written notice to Licensee. Notices to Licensees shall be
addressed 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
or at such other address and to the attention of such other Person as Licensee
may designate by written notice to Licensor.
Section 6.7. Successors and Assigns. This License shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns; provided, however, that no party hereto may assign its rights or
delegate its obligations under this License without the express prior written
consent of each other party hereto. Notwithstanding the foregoing, (a) Xxxxxxxxx
may assign its rights hereunder to a subsidiary of Xxxxxxxxx without the consent
of Licensor so long as Xxxxxxxxx remains jointly and severally obligated with
respect to any and all obligations of Xxxxxxxxx hereunder or pursuant to any
agreement, document or, instrument delivered by Xxxxxxxxx pursuant hereto, and
(b) this License, and all agreements, documents and instruments contemplated
hereby, may be assigned by Xxxxxxxxx and KAV to financial institutions (for the
purpose of granting security interests herein) without the consent of Licensor,
provided that any assignee of any assignment shall be subject to all claims of
offset and all defenses that may be asserted by Licensor against the assignor to
such assignment.
Section 6.8. Headings; Definitions. The Section, Article and other
headings contained in this License are inserted for convenience of reference
only and will not affect the meaning or interpretation of this License. All
capitalized terms defined herein are equally applicable to both the singular and
plural forms of such terms. All terms used herein and not otherwise defined
shall have the same meaning as ascribed to them in the Asset Purchase Agreement.
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Section 6.9. Amendments and Waivers. This License may not be modified
or amended except by an instrument or instruments in writing signed by the party
against whom enforcement of any such modification or amendment is sought. Either
party hereto may, only by an instrument in writing, waive compliance by the
other party hereto with any term or provision hereof on the part of such other
party hereto to be performed or complied with. The waiver by any party hereto of
a breach of any term or provision hereof shall not be construed as a waiver of
any subsequent breach.
Section 6.10. Interpretation; Absence of Presumption.
(a) For the purposes hereof, (i) words in the singular shall be held to
include the plural and vice versa and words of one gender shall be held to
include the other genders as the context requires, (ii) the terms "hereof,"
"herein," and "herewith" and words of similar import shall, unless otherwise
stated, be construed to refer to this License as a whole and not to any
particular provision of this License, and Article and Section references are to
the Articles and Sections of this License, unless otherwise specified, (iii) the
word "including" and words of similar import when used in this License shall
mean "including, without limitation," unless otherwise specified, (iv) the word
"or" shall not be exclusive, and (v) provisions shall apply, when appropriate,
to successive events and transactions.
(b) This License shall be construed without regard to any presumption
or rule requiring construction or interpretation against the party drafting or
causing any instrument to be drafted.
Section 6.11. Severability. Any provision of this License which is
deemed invalid or unenforceable shall be ineffective to the extent of such
invalidity or unenforceability, without affecting in any way the remaining
provisions hereof.
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IN WITNESS WHEREOF, this License Agreement has been signed by or on
behalf of each of the parties as of the day first above written.
LICENSOR:
AVIATION SALES COMPANY,
a Delaware corporation
By: /s/ Xxxx X. Xxxxx
-------------------------------------------
Xxxx X. Xxxxx
Chairman and Chief Executive Officer
LICENSEE:
XXXXXXXXX INDUSTRIES, INC.,
a Delaware corporation
By: /s/ Zivi X. Xxxxxx
-------------------------------------------
Zivi X. Xxxxxx
President
KAV INVENTORY, LLC,
a Delaware limited liability company
By: /s/ Zivi X. Xxxxxx
-------------------------------------------
Zivi X. Xxxxxx, Manager
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Xxxxx Xxxxxx, Manager
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------------
Xxxxxx Xxxxxxx, Manager
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Xxxxxxx X. Xxxxx, Manager
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