Exhibit 10.21
LEASE ASSUMPTION AND ASSIGNMENT AGREEMENT
(XXXXXXXXX INDUSTRIES, INC. and KIAC, INC.)
THIS LEASE ASSUMPTION AND ASSIGNMENT AGREEMENT (this "Agreement") is
made as of July 17, 2002 (the "Effective Date"), by and between Xxxxxxxxx
Industries, Inc., a Delaware corporation ("Assignor"), and KIAC, Inc., a
Delaware corporation ("Assignee").
W I T N E S S E T H
WHEREAS, Assignor is the tenant under that certain lease dated as of
December 1, 2000 between TIMCO Aviation Services, Inc. (f/k/a Aviation Sales
Company), a Delaware corporation ("TIMCO"), as landlord and Assignor as tenant,
as amended by First Amendment to Lease of even date herewith (as amended, the
"Lease");
WHEREAS, the Lease affects certain premises more particularly
described therein located in the City of Miramar (the premises which is the
subject of the Lease is hereinafter called the "Premises"; the real estate of
which the Premises is a part is hereinafter called the "Property");
WHEREAS, Assignor, Assignee and others are parties to an Asset Sale
Agreement, dated as of February 20, 2002 (the "Asset Sale Agreement"), pursuant
to which, among other things, Assignor agreed to assign the Lease to Assignee
and Assignee agreed to assume the obligations under the Lease from and after the
date of such assignment;
WHEREAS, pursuant to an order of the Bankruptcy Court dated June 28,
2002, in that certain matter titled "In re: Xxxxxxxxx Industries, Inc., xx.xx,
Debtors," Case No. 02-10536 (MFW) in the United States Bankruptcy Court for the
District of Delaware (the "Order"), Assignor has assumed the Lease and has been
authorized to assign the Lease to Assignee and Assignee has been authorized to
assume the Lease;
WHEREAS, in connection with the transactions contemplated by the Asset
Sale Agreement and the Order, Assignor desires to sell, assign, transfer and
convey to Assignee, and Assignee desires to accept an assignment from Assignor,
of Assignor's right, title and interest in and to the Lease upon and subject to
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, in the Asset Sale Agreement and in
the Order, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. Assignment. Assignor hereby assigns, transfers, sets over and conveys
to Assignee, its successors and assigns, all of Assignor's right, title and
interest in and to the Lease.
2. Acceptance of Assignment and Assumption of Obligations and
Liabilities. Assignee hereby fully and completely accepts the assignment
pursuant to Section 1 above, and assumes each and every obligation of Assignor
which is to be performed from and after the
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Effective Date as the tenant under the Lease. Assignee agrees that Assignee
shall fully pay, perform and observe all of such obligations on and after the
Effective Date and releases and discharges Assignor and its Affiliates (as
defined in the Asset Sale Agreement), successors and assigns, completely,
unconditionally and forever from all obligations and liabilities arising on or
after the Effective Date as the tenant under the Lease.
3. Proration. Assignor shall be responsible for all of its obligations
under the Lease prior to the Effective Date, and Assignee shall be responsible
for all of its obligations under the Lease on and after the Effective Date.
4. No Representations and Warranties. Assignor makes no representation or
warranty, whether express or implied, hereunder or otherwise with respect to the
Lease, the Premises or the Property.
5. No Third Party Beneficiaries. This Agreement is for the sole and
exclusive benefit of Assignor and Assignee and their respective successors and
permitted assigns, and nothing herein is intended or shall be construed to
confer upon any Person (as defined in the Asset Sale Agreement) other than
Assignor, Assignee and their respective successors and permitted assigns, any
right, remedy or claim under or by reason of this Agreement or any term,
covenant or condition hereof.
6. Amendment. This Agreement may only be amended or modified by a written
instrument executed by the parties hereto.
7. Miscellaneous. This Agreement shall be governed by the laws of the
state in which the Property is located. This Agreement may not be amended except
by a document signed by all parties hereto.
8. Counterparts. This Assignment may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original and all of which when taken together shall constitute but one and the
same instrument.
[Signatures Appear on Following Page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day
and year first above written.
ASSIGNEE: ASSIGNOR:
KIAC, INC., a Delaware corporation XXXXXXXXX INDUSTRIES, INC., a
Delaware corporation
By: /s/ By:/s/ Zivi X. Xxxxxx
------------------------------- -----------------------------------
Name:__________________________ Zivi X. Xxxxxx
Title:_________________________ President
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