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Exhibit 10.4
CONSIGNMENT, CANCELLATION AND PURCHASE AGREEMENT
This agreement is made this 29th day of August, 1997 between Jet
Aviation Trading, Inc. having its principal place of business at 15675 N.W.
15th Avenue, Miami, FL 33167, (hereinafter referred to as "CONSIGNEE") and Jet
Avionics Systems, Inc., having its principal place of business at 18181 N.E.
31st Court, Suite 1907, North Miami Beach, FL 33160 (hereinafter referred to as
the "OWNER").
RECITALS:
WHEREAS, OWNER and CONSIGNEE entered into a Consignment Agreement
dated October 1, 1996, (the "Consignment Agreement") whereby OWNER consigned to
CONSIGNEE that certain Inventory defined in the Consignment Agreement for sale
by Consignee for the benefit of OWNER and CONSIGNEE; and
WHEREAS, OWNER and CONSIGNEE have determined that CONSIGNEE shall
purchase the remaining unsold Inventory from Owner, as set forth on Exhibit
"A", attached hereto under the terms and conditions set forth herein;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto agree as follows:
1. Purchase: CONSIGNEE shall purchase all remaining unsold
Inventory originally consigned to CONSIGNEE under the
Consignment Agreement held by it on the 31st day of August,
1997 (the "Closing Date").
2. Purchase Price: The purchase price ("Purchase Price") for the
payment of such purchased Inventory shall be $675,000.
3. Payment: Payment of the Purchase Price shall be as follows:
a. $340,000 of the Purchase Price has already been paid
to OWNER in cash and equity in CONSIGNEE.
b. CONSIGNEE shall apply the outstanding balance of
principal and accumulated interest of OWNER's
promissory note to CONSIGNEE in the original
principal amount of $175,000 dated October 1,1 996,
originally given for its subscription of shares of
stock of CONSIGNEE to the Purchase Price; and
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c. The remainder of the Purchase Price shall be paid by
issuing shares of CONSIGNEE's common stock at the
rate of $2.00 of the Purchase Price for each share
of common stock of Consignee. Owner acknowledges
that such shares of common stock have not been
registered for sale under the laws of the United
States or any state. Owner agrees to execute a
Subscription Agreement in the form attached hereto
as Exhibit "B".
4. Title: At closing, OWNER will execute a Warranty Bill of Sale
transferring marketable title to all of the remaining
Inventory to CONSIGNEE free and clear of all liens, claims
and encumbrances whatsoever. Further, OWNER warrants that it
shall defend such title forever to CONSIGNEE and CONSIGNEE's
third party customers.
5. Taxes: Taxes imposed by any federal, state or local taxing
authority within the United States and payable as a result of
the sale of the Inventory shall be borne by OWNER.
6. Material Certification: OWNER certifies the following
to CONSIGNEE:
(a) Each item of Inventory covered by this Agreement was
produced by a manufacturer holding an FAA Approved
Production Inspection System issued under FAR 21,
Sub Part F, or by a manufacturer holding an FAA
Production Certificate issued under FAR 21, Sub.
Part G. Each item of Inventory was manufactured by
the prime manufacturer or its approved
manufacturing/supplier source holding one of the
following agreements/approvals; (i) a Fixed Quantity
Licensee/Consignment Agreement, or; (ii) an FAA/PMA
Licensee Agreement, or; (iii) written approval for
Direct Ship Authority from the prime manufacturer.
None of the items of Inventory have been subjected
to severe stress or heat (as in major aircraft,
engine failure, accident or fire). Any part found
not to comply with the standards of this paragraph 6
may, at Consignee's option, either be returned to
Owner or disposed of in accordance with the
appropriate regulatory standards; and,
(b) The Inventory shall be sold by OWNER in an "as is"
condition and OWNER makes no warranties, guarantees
or representations of any kind, either express or
implied, statutory or otherwise, except as set forth
herein, with respect to the Inventory or any other
equipment or parts delivered by OWNER to CONSIGNEE
hereunder including any items of Inventory
overhauled/repaired or recertified; and
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(c) All serialized and non-serialized items of Inventory
(rotable, repairable and/or engine) will be
accompanied with traceability to a commercial
aviation regulated source.
(d) Airworthiness release certificates, where
applicable, will identify the FAA repair station
number and the signature of the approving inspector,
as well as all other pertinent information.
7. Confidentiality: Each party agrees (except with the prior
written consent of the other party):
(a) not to disclose details of this Agreement to any
third parties other than its financial and legal
advisers; and,
(b) to maintain confidentiality of all information
exchanged between the parties, including pricing
information and other proprietary knowledge, held as
confidential between OWNER and OWNER's suppliers and
CONSIGNEE and CONSIGNEE's customers, and not to use
such for the benefit of any third party.
Such confidentiality shall survive the Term of this
Agreement.
8. Applicable Law: The provisions of this Agreement and all
rights and obligations hereunder shall be governed by and
construed in accordance with the laws of the State of
Florida. Both parties hereby agree that this Agreement shall
be deemed to have been made in the County of Dade, Florida,
and that any suit, action or proceeding arising out of or
relating to this Agreement may be instituted in any State or
Federal court having its situs within the County of Dade,
Florida and each party hereby waives the personal service of
any and all process and consent that all such service of
process may be made by certified mail, return receipt
requested, directed to the address set forth herein for each
party. Any such notice shall be effective and shall be deemed
to have been given when received at, or after refusal to
receive, at the addresses set forth herein or at such other
substitute addresses provided in accordance with this
Article.
9. Brokers and Finders: CONSIGNEE and OWNER each agree that
there are no third parties involved as brokers and finders in
this transaction. OWNER indemnifies CONSIGNEE from liability
for any fees, commissions or other claims made, including all
legal costs, due to such claims caused by the indemnifying
party.
10. Assignment: This Agreement shall not be assigned in whole or
in part by either party hereto without the prior written
consent of the other party.
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11. Notices: All notices or requests under this Agreement shall
be in writing and shall be deemed to have been adequately
given when received by the party to whom such notice or
request is given. Notices may be delivered personally, by
first class mail, postage prepaid, by reputable courier or by
facsimile transmission and shall be addressed as follows:
If to CONSIGNEE: Jet Aviation Trading, Inc.
15675 N.W. 15th Avenue
Miami, FL 33169
Fax (305) 624-2944
If to OWNER: Jet Avionics Systems, Inc.
18181 N.E. 31st Court, Suite 1907
North Miami, FL 33160
Fax (305) 933-1635
or to such other address as either party may designate, from time to
time, by written notice to the other party.
12. Alterations: This Agreement shall be effective only when duly
signed by both parties hereto. It contains the entire
understanding between the parties and may not be changed,
modified or altered, nor any of its provisions waived, except
by an agreement in writing signed by the parties hereto. All
prior agreements or understandings between the parties in
connection with the subject matter of this Agreement are
superseded hereby and the waiver of any term of condition
herein by either party shall not be deemed a waiver of any
subsequent term or condition hereof.
13. Exhibits: Any Exhibits to this Agreement or side letters or
referring to this Agreement and duly agreed to by both
parties in writing shall automatically become a part of this
Agreement and unless specifically stated otherwise, the
provisions of this Agreement shall prevail in the event of
any inconsistency.
14. Severability: In the event that any provision of this
Agreement is rendered void, invalid, or unenforceable in a
certain jurisdiction, then such provision (or part thereof)
may be severed from this Agreement without affecting the
remaining provisions hereof, as long as such severance does
not have a material adverse affect on the performance of this
Agreement.
15. Headings: The headings to the clauses of this Agreement are
for the purpose of reference only and in no way define, limit
or describe the scope of intent of this Agreement.
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16. Non-Exclusivility: The relationship of OWNER and CONSIGNEE
under this Agreement is non-exclusive. Both parties reserve
the right to enter into agreements with other parties for the
provision of similar or identical services at any time before
or after the Closing Date. Further, nothing herein shall
authorize either party to hold itself out as acting for or on
behalf of the other party.
17. Counterparts: This Agreement may be executed simultaneously
in two or more counterparts, each of which shall constitute
an original but all of which taken together shall constitute
one and the same instrument. A facsimile signature on any
counterpart hereto shall be deemed an original for all
purposes.
IN WITNESS WHEREOF, the parties hereto by their duly authorized
officers have executed this Agreement as of the day and year first above
written.
JET AVIATION TRADING, INC.
BY:/s/ Joseph J. Nelson
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JET AVIONICS SYSTEMS, INC.
BY:/s/ Sharon Taoz
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BILL OF SALE
FOR VALUABLE CONSIDERATION, receipt of which is here acknowledged, Jet
Avionics Systems, Inc. ("Seller") does hereby grant, bargain, sell, assign,
transfer and deliver to Jet Aviation Trading, Inc. ("Purchaser") all of
Seller's right, title, and interest in and to the goods and chattels which are
listed on Exhibit "A" attached to this bill of sale.
TO HAVE AND TO HOLD unto the Purchaser, its successors and assigns
forever.
And the Seller does, for itself, its successors, and assigns, covenant
to and with the Purchaser, its successors and assigns that the Seller is the
lawful owner of the said goods and chattels; that they are free from all
encumbrances; that the Seller has good right to sell the same aforesaid, and
that Seller will warrant and defend the transfer of the goods and chattels
hereby made, unto the Purchaser, its successors and assigns against the lawful
claims and demands of all persons whomsoever.
IN WITNESS WHEREOF, the Seller has caused this document to be executed
in its name and its corporate seal affixed by its proper officers thereto duly
authorized this 29th day of August, 1997.
Signed, sealed and delivered JET AVIONICS SYSTEMS, INC.
in the presence of: Seller:
/s/ Zvi Mosite /s/ Sharon Taoz
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Witness (Sign Name) Sharon Taoz, President
Zvi Mosite
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(Print Name of Witness)