EXHIBIT 2.4
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (the "Agreement"), is made as of March 19, 2002
(the "Effective Date") by and between Advanced Aerodynamics & Structure, Inc., a
Delaware corporation ("Buyer"), and Xxxxxx Aircraft Corporation, a New Jersey
corporation ("Seller").
RECITALS:
A. Seller and Buyer entered into an Asset Purchase Agreement, dated
March 18, 2002 (the "Original Agreement'), under which Seller agreed to sell
certain "Assets" (as defined in the Original Agreement).
B. The Order was filed on March 18, 2002. In the Order, the Bankruptcy
Court authorized the sale of the Assets free and clear of all liens and
encumbrances (except as specifically provided in the Sale Order).
C. On March 19, 2002, it came to Buyer's attention that a mistake was
made in the list of Assumed Leases on Exhibit A to the Original Agreement; the
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real property lease listed as number "3" on Exhibit A (Commercial Hangar Lease
Agreement Among the City of Kerrville, Texas, the County of Xxxx, Texas and
Xxxxxx Aircraft Corporation, Inc., dated August 27, 1997, by and between the
City of Kerrville, Texas and the County of Xxxx, Texas (as lessor), and Seller,
as lessee, covering what is is referred to as "Tract 19" in the Schedules) was
specifically rejected by Seller by the Order Authorizing (1) Rejection of One
Lease of Nonresidential Real Property; and (II) Extending the Debtor's Time to
Assume or Reject Other Leases of Nonresidential Real Property, which was filed
in the Bankruptcy Case on October 3, 2001, and a copy of which is attached
hereto as Attachment 1.
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D. Seller and Buyer now wish to make a non-substantive amendment to the
Original Agreement to fix the mistake on Exhibit A to remove the real property
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lease that was listed as number "3" (the "Rejected Lease"), and the Committee
wishes to give its consent to the amendment provided for in this Amendment.
NOW, THEREFORE, for and in consideration of the foregoing Recitals
(which form an integral part of this Agreement), and for other good and valuable
consideration, the receipt and adequacy of which is acknowledged by the parties
hereto and to each other, Seller and Buyer agree as follows:
AGREEMENT:
1. Recitals. The foregoing recitals are true and correct.
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2. Definitions. Capitalized terms used in this Amendment that are not
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specifically defined herein have the meanings given to them in the Original
Agreement. Other capitalized terms used in this Amendment that are not
specifically defined herein have the meaning given to them in the Bankruptcy
Code.
3. Amendment to Original Agreement. Exhibit A to the Original
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Agreement is hereby replaced in its entirety with the "Exhibit A" that is
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attached hereto as Attachment 2,
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First Amendment to Asset Purchase Agreement
which is exactly the same as the original Exhibit A, except that the reference
to the Rejected Lease has been removed. The parties hereto agree that this is a
non-substantive amendment to the Original Agreement that serves to fix a
typographical error and that the parties did not intend to (nor could they have)
included the Rejected Lease in the list of Assumed Leases under the Original
Agreement.
4. No Other Amendments. Except as specifically provided in Section 3
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above, the Original Agreement remains in full force and effect as originally
written.
18. Miscellaneous.
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(a) This Amendment may be executed in one or more counterparts, each
of which, when taken together will be deemed to constitute one and the same
agreement.
(b) This Agreement shall be governed by the laws of the State
of Texas, without reference to its choice of law provisions, and where
applicable, the Bankruptcy Code.
[signatures on following page]
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First Amendment to Asset Purchase Agreement Page 2
Signature Page
to
First Amendment to Asset Purchase Agreement
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the Effective Date.
Buyer:
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Buyer's Contact Information: ADVANCED AERODYNAMICS & STRUCTURE, INC.
--------------------------- a Delaware corporation
0000 Xxxxxxxx Xxxx.
Xxxx Xxxxx Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000 By: /s/ X. Xxxxxx Happy
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X. Xxxxxx Happy
Executive Vice President and General
Counsel
Seller:
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Seller's Contact Information: XXXXXX AIRCRAFT CORPORATION,
---------------------------- a New Jersey corporation
Xxxxx Xxxxxxxxx Field
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx, Responsible Person
APPROVED BY THE COMMITTEE on March ____, 2002:
THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS
By:
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Name:
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Title:
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First Amendment to Asset Purchase Agreement
ATTACHMENT 1
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Copy of Order Rejecting Rejected Lease
[attached behind this page]
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First Amendment to Asset Purchase Agreement
IN THE UNITED STATES BANKRUPTCY COURT FILED
WESTERN DISTRICT OF TEXAS OCT 03 2001
SAN ANTONIO DIVISION U.S. BANKRUPTCY COURT
BY /s/ illegible DEPUTY
IN RE:
CASE NO. 01-53433-K
XXXXXX AIRCRAFT CORPORATION,
DEBTOR. Chapter 11
ORDER AUTHORIZING (I) REJECTION OF ONE LEASE OF
NONRESIDENTIAL REAL PROPERTY, AND (II) EXTENDING
THE DEBTOR'S TIME TO ASSUME OR REJECT OTHER
LEASES OF NONRESIDENTIAL REAL PROPERTY
Upon the motion (the "Motion") of Xxxxxx Aircraft Corporation, debtor and
debtor in possession herein (the "Debtor"), for an order, pursuant to Section
365(a) of Title 11 of the United States Code (the "Bankruptcy Code"): (i)
rejecting the Debtor's lease of nonresidential real property with the City of
Kerrville, Texas and the County of Xxxx, Texas pertaining to a certain parcel of
property known as Tract 19 on the Kerrville- Xxxx County Airport Leasing Plan
(the "Tract 19 Lease"); and (ii) extending the time within which the Debtor must
assume or reject the balance of its nonresidential real property leases as
identified in Exhibit A to the Motion (the "Remaining Real Property Leases") to
and including January 23, 2002; and it appearing that rejection of the Tract 19
Lease is within the Debtor's sound business judgment and is in the best
interests of the Debtor, its creditors and estate; and it appearing that cause
exists to extend the Debtor's time to assume or reject the remaining Real
Property leases; and due notice of the Motion having been given to the office of
the United States Trustee, counsel for the Official
to the Motion and all parties-in-interest having filed a request for notice
pursuant to Bankruptcy Rule 2002; and it appearing that no other or further
notice need be given; and after due deliberation, sufficient cause appearing
therefore, it is
NOW, on motion of counsel for the Debtor, it is
ORDERED, that the Motion is granted and approved; and it is further
ORDERED, that, pursuant to Section 365(a) of the Bankruptcy Code, the Tract
19 Lease is hereby rejected; and it is further
ORDERED, that the Debtor's time to assume or reject the Remaining Real
Property Leases is hereby extended to the confirmation hearing date; and it is
further
ORDERED, that nothing in this Order shall prevent the Debtor from seeking
further extensions of its time to assume or reject some or all of the Remaining
Real Property Leases; and it is further
ORDERED, that the Debtor is hereby directed to serve notice of entry of
this Order upon all Landlords list on Exhibit "A".
Dated: San Antonio, Texas
Oct. 3, 0000
/x/ Xxxxxx X. Xxxx
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XXXXXX XXXXXX BANKRUPTCY JUDGE
ATTACHMENT 2
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Amended and Restated Exhibit A
to
Asset Purchase Agreement
List of Assumed Leases
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1. Lease, dated January 10, 1963, between the City of Kerrville and the
County of Xxxx, as lessor, and Xxxxxx Aircraft, Inc., as lessee, as recorded in
Volume L, Page 598 of the Xxxx County Commissioner's Court Minutes, and in
Volume 139, Page 218 of the Xxxx County Deed Records, as amended by: (1) a
Lease Amendment, dated December 13, 1966, between the City of Kerrville and the
County of Xxxx, as lessor, and Xxxxxx Aircraft, Inc., as lessee, recorded in
Volume M, Page 416 of the Xxxx County Commissioner's Court Minutes, and in
Volume 139, Page 214 of the Xxxx County Deed Records; (2) an Assignment of
Leaseholds, dated March 25, 1969, assigning the interest of Xxxxxx Aircraft,
Inc., as lessee to Xxxxxx Aircraft Corporation, executed by Lukin Xxxxxxxxx,
Esq. on, as Receiver and Trustee in Bankruptcy of Xxxxxx Aircraft, Inc. and
Xxxxxx Corporation, recorded in Volume 137, Page 437 of the Deed Records of Xxxx
County, Texas; (3) an Amendment of Lease Agreement, dated September 29, 1970, by
Aerostar Aircraft Corporation of Texas (f/k/a Xxxxxx Corporation), as lessee,
and the City of Kerrville and the County of Xxxx acting by and through the
Kerrville-Xxxx County Joint Airport Board, as lessor, recorded in Volume 167,
Page 127 of the Xxxx County Deed Records; (4) Amendment of Lease, dated August
27, 1973, by and between BAACT Corp. (f/k/a Aerostar Aircraft Corporation of
Texas), as lessee and the City of Kerrville and the County of Xxxx acting by and
through the Kerrville-Xxxx County Joint Airport Board, as lessor; (5) Assignment
of Lease, dated October 4, 1973, assigning the interest BAACT Corp. (f/k/a
Aerostar Aircraft Corporation of Texas), to Seller; (6) Amendment to Lease,
dated November 27, 1984, by and between Seller, as lessee, and the City of
Kerrville and the County of Xxxx acting by and through the Kerrville-Xxxx County
Joint Airport Board, as lessor; and (7) Landlord Estoppel and Access Agreement,
dated ____, 1995, by and between the City of Kerrville, the County of Xxxx, the
Kerrville-Xxxx County Joint Airport Board (collectively as the lessor) and
Congress Financial Corporation, as lender, recorded in Volume 808, Page 736 of
the Xxxx County Deed Records. This Lease covers what is referred to as "Tracts
1, 2 and 3" in the Debtor's schedules in the Bankruptcy Proceeding (the
"Schedules").
2. City-County Xxxxxx Airport Lease -- 1982, dated April 29, 1982, by
and between the City of Kerrville and Xxxx County, as lessor, and Seller, as
lessee, recorded in Volume 260, Page 577 of the Xxxx County Deed Records, as
amended by an Amendment to Lease, dated November 27, 1984, by and between the
City of Kerrville and Xxxx County, as lessor, and Seller, as lessee. This Lease
covers what is referred to as "Tract 4" in the Schedules.
3. Lease, dated January 23, 1963, by and between the Xxxx County
Industrial and Development Foundation, Inc., as lessor and Xxxxxx Aircraft,
Inc., as lessee, as affirmed by written estoppel of lessor dated November 30,
1984, providing that Seller was then the current lessee under the lease. This
Lease covers what is referred to as "Tract 5" on the Schedules.
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First Amendment to Asset Purchase Agreement
