EXHIBIT 10.3
EXHIBIT D
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FIRST AMENDMENT
TO
NON-COMPETITION AGREEMENT
among
▇▇▇▇▇▇▇▇▇ INDUSTRIES, INC.,
KAV INVENTORY, LLC,
AVIATION SALES DISTRIBUTION SERVICES COMPANY,
and
AVIATION SALES COMPANY
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, 2002
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FIRST AMENDMENT TO NON-COMPETITION AGREEMENT
This First Amendment to the Non-Competition Agreement (this "Amendment") is
entered into as of __________ __, 2002 (the "Effective Date") among ▇▇▇▇▇▇▇▇▇
Industries, Inc., a Delaware corporation ("▇▇▇▇▇▇▇▇▇"), KAV Inventory, LLC, a
Delaware limited liability company ("KAV"), Aviation Sales Company, a Delaware
corporation ("AVS") and Aviation Sales Distribution Services Company, a Delaware
corporation ("AVSDS").
RECITALS
Contemporaneous with the execution of this Amendment, ▇▇▇▇▇▇▇▇▇, AVS and
AVSDS have terminated that certain Cooperation Agreement dated as of December 1,
2000 (the "Cooperation Agreement") among such parties. ▇▇▇▇▇▇▇▇▇, KAV, AVS and
AVSDS desire to amend the terms of that certain Non-Competition Agreement dated
as of December 1, 2000 (the "Agreement") among ▇▇▇▇▇▇▇▇▇, KAV, AVS and AVSDS
upon the terms and conditions set forth below. All capitalized terms not
defined herein shall have the meanings ascribed to them in the Agreement.
TERMS OF AMENDMENT
In consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto agree as follows:
1. The definition of "Cooperation Agreement" in Article I of the
Agreement is hereby deleted in its entirety.
2. All references to the term "Cooperation Agreement" contained in the
Agreement are hereby deleted.
3. The definition of "Permitted Activities" in the Agreement is hereby
deleted in its entirety and replaced with the following definition:
"Permitted Activities" means the following activities engaged in by
the referenced entities:
(a) 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.
(b) If any of the AVS Companies shall at any time acquire any Parts
in connection with the performance of MRO Services and elect, in their
discretion, to dispose of such Parts, then they shall have the right to
dispose of such Parts, subject to a limitation of an aggregate sales price
for such Parts of not more than $4,000,000 from and after ________ __, 2002
until the six month anniversary of such date.
(c) AVS may continue to operate the business conducted by Aircraft
Interior Design ("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, as amended.
(d) Aerocell Structures, Inc. may exchange flight surface parts with
its customers.
(e) Timco Engine Center, Inc. may continue to (i) purchase run-out
engines for the purpose of dismantling and supplying Parts for its repair
of engines, and (ii) supply Parts to customers in connection with its
repair of engines.
4. Article I of the Agreement is hereby amended to add the following
definitions:
"AVS Companies" means AVS and each of its Subsidiaries and each of
their respective successors and assigns.
"Designated Locations" means (i) each location specified as a
"Designated Location" on Schedule 1.1 hereto, and (ii) subject to any
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restrictions or requirements contained in the ▇▇▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇▇▇ hereafter consents upon written request of AVS Companies to
designate as a Designated Location (which consent shall not be unreasonably
withheld or delayed).
"Exchange Pool" means a pool of Parts made available to the AVS
Companies for use by them in exchange arrangements with third parties.
"MRO Services" means services for the repair, maintenance or overhaul
of Parts.
"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
affixed to any part in connection with its repair, maintenance, overhaul,
modification, refurbishment, certification or otherwise.
"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.
5. Except as expressly amended hereby, all of the terms and conditions of
the Agreement shall continue in full force and effect.
6. This Amendment shall be governed by and construed in accordance with
the laws of
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the State of Florida applicable to contracts executed and to be wholly performed
within such State. This Amendment 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.
[SIGNATURES ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered as of the day and year first above written.
▇▇▇▇▇▇▇▇▇ INDUSTRIES, INC., a Delaware
corporation
By:
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Zivi ▇. ▇▇▇▇▇▇
President and Chief Executive Officer
KAV INVENTORY, LLC, a Delaware limited
liability company
By:
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Zivi ▇. ▇▇▇▇▇▇, Manager
By:
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▇▇▇▇▇ ▇▇▇▇▇▇, Manager
By:
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▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Manager
By:
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▇▇▇ ▇▇▇▇, Manager
AVIATION SALES COMPANY, a Delaware
corporation
By:
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▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Chairman and Chief Executive Officer
AVIATION SALES DISTRIBUTION SERVICES
COMPANY, a Delaware corporation
By:
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▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Chairman and Chief Executive Officer