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EXHIBIT 10.10
INVENTORY SALES AGREEMENT
THIS INVENTORY SALES AGREEMENT ("Agreement") is made and entered into
as of the 19th day of November, 1998, by and between AMERICAN AIRCARRIERS
SUPPORT, INCORPORATED, a Delaware corporation ("Buyer") and GLOBAL AIR SPARES,
INC., a Florida corporation ("Seller").
WITNESSETH:
WHEREAS, Seller has bulk inventory materially described in Exhibit "A"
attached hereto and incorporated herein by reference that it desires to sell to
Buyer, and
WHEREAS, Buyer desires to purchase said bulk inventory.
NOW, THEREFORE, in consideration of mutual promises and covenants
contained herein, the parties hereto agree as follows:
1. SALE OF INVENTORY. Subject to the terms and conditions of this
Agreement, Seller hereby agrees to sell to Buyer and Buyer hereby agrees to
purchase from Seller its inventory, its inventory records (including all repair
information and invoices associated therewith), parts associated with its
inventory, and all support items thereto (the "Inventory").
2. PURCHASE PRICE AND PAYMENT. Buyer shall pay to Seller an amount
equal to One Million One Hundred Seventy-Five Thousand Dollars ($1,175,000.00)
(the "Purchase Price"). The Purchase Price shall be paid to Seller in cash or
cash equivalent upon Delivery, as is defined in Section 4, to Buyer at 0000/0000
X.X. 00xx Xxxxxx, Xxxxx, XX 00000. Cash payments shall be made by wire transfer
of good and unrestricted bank funds to Seller's designated account number.
3. INSPECTION.
a. Prior to Delivery, Buyer, at its expense, may perform or cause to be
performed a visual inspection of the Inventory and its records at the Seller's
place of business ("Inspection"). Upon completion of an Inspection, Buyer shall
promptly advise Seller whether or not, in Buyer's sole discretion, the Inventory
and its records are acceptable to Buyer. Buyer's decision on the acceptability
of the Inventory records will depend, in part, upon the accuracy and
completeness of the records (including but not
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limited to Buyer's evaluation of traceability of life-limited parts, shop
records, AD and SB status reports, etc.). For any Inventory, Buyer's failure to
perform the inspection, prior to Delivery, or failure to advise Seller of
Buyer's findings promptly after the Inspection shall be deemed conclusive that
such Inventory and its records are acceptable to Buyer. Inventory shall be
considered "Accepted" by Buyer if Buyer has determined or if it is deemed
conclusive that the Inventory and its records are acceptable to Buyer.
b. If a question develops with regard to the Inventory records after
Delivery, then, within thirty (30) days after receipt by Seller of Buyer's
written notice thereof, Seller will reasonably assist in causing the records to
be acceptable to Buyer, if reasonably possible. However, nothing in this
paragraph shall be construed to affect the purchase price or to impose any
financial obligation upon the Seller.
c. Seller warrants that, at Delivery hereunder, the Inventory will be
in the same condition as when Accepted by Buyer.
d. Seller also warrants that the diskette delivered prior to the
Inspection materially represents a true and accurate Inventory as regards to
identification of the items of Inventory and quantity thereof.
4. DELIVERY.
a. Delivery of the Inventory to Buyer (the "Delivery") shall occur on
or before November 19, 1998 (the "Delivery Date") and at 0000/0000 X.X. 00xx
Xxxxxx, Xxxxx, Xxxxxxx 00000 (the "Delivery Location") upon satisfaction of the
conditions precedent stated in this Agreement.
b. Upon Delivery, Buyer shall execute and deliver to Seller a receipt
therefor substantially in the form set forth in Exhibit "B" attached hereto and
made a part hereof.
c. At Delivery, all of the Inventory records in the possession of
Seller will be provided to Buyer.
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5. TITLE.
a. Title to the Inventory shall pass to Buyer at Delivery. Upon
transfer of such title to Buyer, risk of loss, damage to or destruction of such
Inventory and its records shall forthwith transfer from Seller to Buyer.
b. Upon transfer of title for any Inventory to Buyer, Seller shall
deliver to Buyer a Xxxx of Sale covering such Inventory, which Xxxx of Sale
shall be substantially in the form of Exhibit "C" attached hereto and made a
part hereof.
6. TAXES.
a. Buyer will indemnify, defend and hold Seller harmless from and
against any and all taxes of whatsoever kind or nature (except for taxes levied
against Seller based on its net income) including costs or expenses incurred in
connection therewith, which may be assessed against, chargeable to or
collectible from either Buyer or Seller by any taxing authority of any country,
federal, state or local government, and which are based upon or levied or
assessed with respect to the sale of the Inventory hereunder to Buyer or the
subsequent operation, possession or use of the Inventory. If Seller is required
to pay any contested tax levied, then Buyer agrees to immediately reimburse
Seller for the full amount of such tax. If Buyer elects to contest any tax
levied against Seller which is to be paid by Buyer hereunder, Buyer shall pay
all costs of such contest, including, but not limited to, reasonable attorneys'
fees through all proceedings, including appellate proceedings. The parties agree
to furnish each other with such documents and certificates as they may
reasonably request in connection with any claims of exemptions for the payment
of any taxes.
b. Buyer hereby warrants and represents that it is purchasing the
Inventory for ultimate resale.
7. DELAYS. Seller shall not be responsible for, nor deemed to be in
default on account of, delay in Delivery due to force majeure causes, including,
but not limited to, acts of God or the public enemy, civil war, insurrection or
riots, fires, floods, explosions, earthquakes, restrictions or strikes,
government legislation, acts, orders or regulations, inability or failure of
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suppliers to deliver, or for any other cause to the extent it is beyond Seller's
control.
8. LIMITED WARRANTY AND DISCLAIMER. Seller represents and warrants to
Buyer that:
a. At Delivery, Seller will have good legal and beneficial title to the
Inventory and have full power and lawful authority to transfer such title to
Buyer. Buyer is not assuming any liabilities or obligations associated with said
Inventory, whether known or unknown, contingent or realized, except for
liabilities set forth specifically in this Agreement.
b. At Delivery, the Inventory will be subject to no mortgage, pledge,
lien, charge or other encumbrance (collectively the "Liens").
c. Inasmuch as the Seller has agreed to duly pay, perform and discharge
any liabilities and obligations associated with the Inventory, the Buyer and the
Seller hereby mutually agree to waive compliance with the provisions of the
Florida Bulk Sales laws, to the extent applicable to the transactions
contemplated hereby. The Seller covenants and agrees to indemnify and save
harmless the Buyer from and against any and all loss, liability, cost and
expense (including reasonable attorneys' fees) arising out of noncompliance with
said Bulk Sales laws.
d. EXCEPT AS OTHERWISE STATED HEREIN, THE INVENTORY, INCLUDING THE
COMPONENT PARTS THEREOF, BEING SOLD BY SELLER TO BUYER WILL BE SOLD "AS IS" AND
SELLER MAKES NO WARRANTIES, GUARANTEES OR REPRESENTATIONS OF ANY KIND, EITHER
EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, THAT SHALL SURVIVE DELIVERY AS TO
THE INVENTORY AND THE COMPONENT PARTS THEREOF, INCLUDING BUT NOT LIMITED TO THE
CONDITION OR AIRWORTHINESS THEREOF; AND BUYER HEREBY WAIVES ALL OTHER
WARRANTIES, REMEDIES OR LIABILITIES, EXPRESS OR IMPLIED, ARISING BY LAW OR
OTHERWISE, AND SELLER SHALL HAVE NO LIABILITY TO BUYER WITH RESPECT TO FITNESS
FOR ANY INTENDED PURPOSE AND MERCHANTABILITY, ANY OBLIGATION OF SELLER ARISING
FROM TORT OR STRICT LIABILITY TORT CLAIMS, OR FOR LOSS OF USE, REVENUE OR
PROFIT, OR FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY EXPENSE DIRECTLY
OR INDIRECTLY ARISING FROM THIS TRANSACTION AND THE USE OF THE INVENTORY OR ANY
INABILITY TO USE THE INVENTORY EITHER SEPARATELY OR IN COMBINATION WITH OTHER
PARTS OR APPARATUS
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OR FROM ANY OTHER CAUSE. Buyer acknowledges that the foregoing waiver and
agreements were agreed to by it in the course of bargaining and negotiation with
respect to the Agreement and that the Purchase Price and other terms herein and
in the Agreement reflect such waivers and agreements by Buyer.
e. Seller makes no representation as to what use or application may be
made of the Inventory in the condition in which the Inventory is delivered.
Further, Seller makes no representation as to whether the Inventory complies
with, or is capable of being modified so as to comply with, any present or
future environmental restrictions or requirements imposed by any governmental
entity, including, but not limited to, requirements with respect to noise
abatement and emission control. Buyer shall have the responsibility of obtaining
whatever certifications, waivers or exemptions are necessary from applicable
government agencies for projected uses or applications of the Inventory.
Additionally, Seller makes no representations as to the fair market value of the
Inventory.
f. To the best of Seller's knowledge, the Inventory has not been
involved in an incident or accident.
g. To the best of Seller's knowledge at Delivery, the Inventory will
meet all of the manufacturer's specifications applicable to such Inventory, and
all Inventory has been manufactured by or approved by the FAA for manufacture by
a company under a Parts Manufacturer Approval.
h. Seller shall provide material certification for all inventory either
individually or by lot, as agreed between the parties.
i. After the conclusion of this transaction, Seller shall cease doing
any aviation business, whether sales, leasing or otherwise.
9. WARRANTIES ASSIGNMENT. Seller hereby assigns to the Buyer any and
all assignable warranties, if any, of maintenance and overhaul agencies, of and
for the Inventory, effective upon Delivery. Upon the request of Buyer, Seller
shall give notice to any such maintenance and overhaul agencies of the
assignment of such warranties to Buyer and shall give Buyer aid and assistance
in
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enforcing the rights of Buyer arising under such warranties. Buyer shall
reimburse Seller for any reasonable costs and expenses incurred by Seller in
rendering such assistance.
10. INDEMNITY.
a. Buyer hereby releases and agrees to indemnify, defend and save
harmless Seller, its directors, officers, agents and employees from and against
any and all liability, damages, losses, expenses and claims, including without
limitation, all reasonable attorneys' fees and all other costs and expenses in
connection therewith and incident thereto through all proceedings, including
appellate proceedings, for death of or injury to any persons whomsoever,
including without limitation, the officers, agents and employees of the parties
hereto, and for loss of, damage to, or delay in delivery of any property
whatsoever, including without limitation any aircraft on which the Inventory may
be installed and loss of use of the aircraft and any other property of the
parties hereto or of their officers, agents or employees, in any manner arising
out of, incident to, or in connection with such Inventory or the use, operation,
storage, or testing of the Inventory, subsequent to Delivery hereunder, unless
due to the negligence or willful or wanton misconduct of Seller.
b. Buyer further agrees to reimburse Seller for the cost of storing the
inventory after Delivery, including without limitation payment of monthly rent
and all incidental expenses (insurance, security, utilities and waste disposal)
for the leased premises through the duration of the lease.
c. NEITHER BUYER NOR SELLER SHALL BE LIABLE FOR SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES WHICH MAY RESULT FROM PERFORMANCE OR FAILURE TO PERFORM
UNDER THIS AGREEMENT.
11. APPLICABLE LAW. The provisions of the Agreement and all rights and
obligations thereunder shall be governed by and construed in accordance with the
laws of the State of Florida.
12. NOTICES. All notices, requests and demands and other communications
hereunder must be in writing and shall be deemed to have been duly given when
(i) personally delivered, (ii) when forwarded by Federal Express, Airborne or
another private carrier which maintains records showing delivery information,
(iii) when
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sent via facsimile transmission but only if a written or facsimile acknowledge
of receipt is received by the sending party, or (iv) when placed in the United
States Mails and forwarded by Registered or Certified Mail, return receipt
requested, postage prepaid, addressed to the party to whom such notice is being
given at the following addresses:
AS TO THE SELLER: Global Air Spares, Inc.
ATTN: Xxxxx Xxxxxx
0000/0000 X.X. 00xx Xxxxxx
Xxxxx, XX 00000
WITH COPY TO: X. Xxxxxxxx Xxxxxx
Xxxxx & Xxxxxx, P.A.
3400 NationsBank Tower
000 Xxxxxxxxx 0xx Xxxxxx
Xxxxx, XX 00000
AS TO THE BUYER: American Aircarriers Support,
Incorporated
Attn: Xxxx X. Xxxxx
P. O. Xxx 0000
Xxxxxxxxx, XX 00000
WITH COPY TO: Xxxxx X. Xxxx
Xxxx, Layton, Kersh, Solomon,
Sigmon, Xxxx & Xxxxx, P.A.
P. O. Xxx 0000
Xxxxxxxx, XX 00000-0000
Any party may change the address(es) to which notices to it are to be sent by
giving notice of such change to the other parties in accordance with this
Section.
13. REPRESENTATIONS.
a. Authority of Seller and Buyer. Buyer and Seller each represents to
the other that:
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(1) it has the full power, authority and legal right to enter
into this Agreement;
(2) the execution, delivery and performance of this Agreement
has been duly authorized and that all necessary approvals or consents
shall have been duly obtained;
(3) the execution, delivery and performance of this Agreement
does not contravene any law binding on it or contravene any agreement
to which it is a party or by which it is bound; or any law,
governmental rule, regulation or order;
(4) such party is not a party to any agreement or instrument
or subject to any charter or other restriction which will adversely
affect its ability to perform its obligations under this Agreement;
(5) neither the execution or delivery of this, nor the
consummation of any of the transactions contemplated hereby, require
the consent or approval of, the giving of notice to or the registration
with, or the taking of any other action in respect of any United States
or foreign government authority or agent;
(6) this Agreement constitutes a legal, valid and binding
obligation enforceable in accordance with the terms hereof; and that
there are no pending or threatened actions or proceedings before any
court or administrative agency which will adversely affect the ability
of such party to perform its obligations under this Agreement; and
(7) the Buyer has had reasonable opportunity to inspect the
Inventory and to conduct due diligence on the Inventory.
b. No Broker. Buyer and Seller represent to each other that they have
negotiated the sale of the Inventory directly with each other, and that no agent
or broker has procured or otherwise participated to any extent in such
negotiations nor is entitled to any compensation therefor. Each party shall be
responsible for and shall indemnify and hold the other party harmless from and
against any and all claims, demands, liabilities, damages, losses and judgment
arising out of its own action or negotiations with or in respect to any agent or
broker.
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14. CONFIDENTIALITY. This Agreement and all information contained in
this Agreement are confidential and proprietary to Seller and Buyer and are
solely for the internal use of the parties hereto. Disclosure to third parties
is prohibited, except as otherwise stated in this Agreement, as required by law
or order of a governmental authority, or as required to enforce the terms of the
Agreement. However, Buyer may issue a press release confirming the closing of
this Agreement.
15. MISCELLANEOUS.
a. Any provision of the Agreement which is prohibited or unenforceable
in any jurisdiction shall, at 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 provisions in any
other jurisdiction.
b. No term or provision of the Agreement may be changed, waiver,
discharged or terminated orally, but only by an instrument in writing and signed
by the party against which the enforcement of the change, waiver, discharge or
termination is sought.
c. Any ambiguities in the construction or interpretation of this
Agreement or any clause or provision herein shall not be construed or resolved
against the party solely because that party drafted the Agreement.
d. The section headings contained herein are for convenience and
reference only and are not intended to define or limit the scope of any
provisions of the Agreement.
e. The Agreement contains the entire understanding of the parties with
respect to the purchase and sale of the Inventory, and no warranties,
representations or undertakings have been made or relied on in entering into
this Agreement by either party except as expressly set forth herein. Any
previous oral or written communications, representations, agreements or
understandings between Seller and Buyer relating to the subject matter hereof
are no longer of any force and effect, are superseded and replaced in their
entirety by the provisions of the Agreement.
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f. This Agreement shall be binding upon and inure to the benefit of the
respective successors and assigns of the parties.
g. This Agreement may not be assigned by either party except with the
prior written consent of the other party, such consent not to be unreasonably
withheld.
h. This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument. A facsimile
signature on any counterpart hereto will be deemed an original for all purposes.
i. All of the Exhibits referred to in this Agreement are incorporated
herein by reference and shall be deemed and construed to be a part of this
Agreement for all purposes.
IN WITNESS WHEREOF, the Seller and the Buyer have each caused this
Agreement to be executed by their respective duly authorized officers under
seal, all as of the day and year first above written.
AMERICAN AIRCARRIERS SUPPORT,
INCORPORATED,
By /s/ Xxxx X. Xxxxx
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GLOBAL AIR SPARES, INC.
By /s/ Xxxxx Xxxxxx
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