Exhibit 2.2
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AMENDMENT
TO
AMENDED CONTRIBUTION AGREEMENT
Reference is hereby made to that certain Amended Contribution
Agreement dated as of April 24, 2002 (the "Contribution Agreement") by and among
Essential Reality, LLC, a Delaware limited liability company (the "Company"),
JPAL, Inc., a Nevada corporation ("JPAL"), and Xxxxxx Xxxxxx, Xxxx Xxxxxxx,
Xxxxxxx Xxxxxxx and LCG Capital Group, LLC. All capitalized terms used herein,
but not otherwise defined herein, shall have the meanings ascribed to them in
the Contribution Agreement.
WHEREAS, the parties to the Contribution Agreement desire to amend
certain terms of the Contribution Agreement.
NOW, THEREFORE, in consideration of the premises and mutual
covenants hereinafter set forth, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. Amendments. (a) Section 5.1 is hereby amended by deleting all
references in such section to a maturity date of "December 31, 2003" and
inserting in its stead a maturity date of April 30, 2004.
(b) Exhibit B attached to the Contribution Agreement is hereby
replaced with Exhibit B attached hereto.
Except for the specific changes provided for in this section, all terms and
conditions of the Contribution Agreement shall remain and are in full force and
effect.
2. Governing Law. This Amendment shall be governed by and construed
in accordance with the laws of the State of New York, without regard to
principles of conflicts of laws.
3. Miscellaneous. This Amendment shall be binding upon and inure to
the benefit of and be enforceable by the respective successors and assigns of
the parties hereto. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, each of the following parties have caused this
Amendment to be duly executed as of the 14th day of June 2002.
JPAL, INC.
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Xxxxxx Xxxxxx By:_________________________________
Name: Xxxxx Xxxxxxxxx
Title: President
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Xxxx Xxxxxxx LCG CAPITAL GROUP, LLC
____________________________________ By: ________________________________
Xxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxx
Title: President of Winchester
Capital Group, LLC, the Managing
Member
ESSENTIAL REALITY, LLC HMA ADVISORS, INC.
By: ________________________________ By: ________________________________
Name: Xxxxx X. Xxxxxx Name: Xxxxxx Xxxxx
Title: Chairman of the Board of Managers Title:
EXHIBIT B
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ESSENTIAL REALITY, LLC
8 1/2% PROMISSORY NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
("ACT"), OR UNDER ANY STATE SECURITIES LAW AND MAY NOT BE PLEDGED, SOLD,
ASSIGNED OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
WITH RESPECT THERETO UNDER THE ACT AND ANY APPLICABLE STATE SECURITIES LAW, OR
UNLESS THE COMPANY RECEIVES AN OPINION OF COUNSEL, SATISFACTORY TO THE COMPANY,
THAT SUCH REGISTRATION IS NOT REQUIRED.
$[___________] _________, 200_
FOR VALUE RECEIVED, ESSENTIAL REALITY, LLC, a Delaware limited liability company
("Company"), with its principal office at 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, promises to pay to the order of JPAL, Inc. residing at 00000 Xxx
Xxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxxxxx 00000 ("JPAL" or the "Holder"), on the
Maturity Date (as defined in Section 4.1 below), the principal amount of
$[__________], in such coin or currency of the United States of America as at
the time of payment shall be legal tender for the payment of public or private
debts, together with interest on the unpaid balance of said principal amount
from time to time outstanding at the rate of eight and one-half (8 1/2%) percent
per annum without compounding. Payments of principal and interest are to be made
at the address of the Holder designated above or at such other place as the
Holder shall have notified the Company in writing at least five (5) days before
such payment is due.
1. Events of Default. (a) Upon the occurrence of any of the
following events (herein called "Events of Default"):
(i) The Company shall fail to pay the principal of or interest
on this Note on the Maturity Date;
(ii) (A) The Company shall commence any proceeding or other
action relating to it in bankruptcy or seek reorganization, arrangement,
readjustment of its debts, receivership, dissolution, liquidation,
winding-up, composition or any other relief under any bankruptcy law, or
under any other insolvency, reorganization, liquidation, dissolution,
arrangement, composition, readjustment of debt or any other similar act
or law, of any jurisdiction, domestic or foreign, now or hereafter
existing; or (B) the Company shall admit the material allegations of any
petition or pleading in connection with any such proceeding; or (C) the
Company shall apply for, or consent or acquiesce to, the appointment of
a receiver, conservator, trustee or similar officer for it or for all or
a substantial part of its property; or (D) the Company shall make a
general assignment for the benefit of creditors;
(iii) (A) The commencement of any proceedings or the taking of
any other action against the Company in bankruptcy or seeking
reorganization, arrangement, readjustment of its debts, liquidation,
dissolution, arrangement, composition, or any other relief under any
bankruptcy law or any other similar act or law of any jurisdiction,
domestic or foreign, now or hereafter existing and the continuance of
any of such events for forty-five (45) days undismissed,
unbonded or undischarged; or (B) the appointment of a receiver,
conservator, trustee or similar officer for the Company for any of its
property and the continuance of any of such events for forty-five (45)
days undismissed, unbonded or undischarged; or (C) the issuance of a
warrant of attachment, execution or similar process against any of the
property of the Company and the continuance of such event for forty-five
(45) days undismissed, unbonded and undischarged;
(iv) The Company shall fail to comply with any of its
obligations under this Note;
(v) The Company shall default with respect to any indebtedness
for borrowed money (other than under this Note) if either (a) the effect
of such default is to accelerate the maturity of such indebtedness
(giving effect to any applicable grace periods) or (b) the holder of
such indebtedness declares the Company to be in default (giving effect
to any applicable grace periods); or
(vi) Any judgment or judgments against the Company or any
attachment, levy or execution against any of its properties for any
amount in excess of $150,000 in the aggregate shall remain unpaid, or
shall not be released, discharged, dismissed, stayed or fully bonded for
a period of thirty (30) days or more after its entry, issue or levy, as
the case may be;
then, and in any such event, the Holder, at the Holder's option and without
written notice to the Company, declare the entire principal amount of this Note
then outstanding together with accrued unpaid interest thereon immediately due
and payable, and the same shall forthwith become immediately due and payable
without presentment, demand, protest, or other notice of any kind, all of which
are expressly waived. The Events of Default listed herein are solely for the
purpose of protecting the interests of the Holder of this Note. If the Note is
not paid in full upon acceleration, as required above, interest shall accrue on
the outstanding principal of and interest on this Note from the date of the
Event of Default up to and including the date of payment at a rate equal to the
lesser of twelve (12%) percent per annum or the maximum interest rate permitted
by applicable law.
(b) Non-Waiver and Other Remedies. No course of dealing or delay on
the part of the Holder of this Note in exercising any right hereunder shall
operate as a waiver or otherwise prejudice the right of the Holder of this Note.
No remedy conferred hereby shall be exclusive of any other remedy referred to
herein or now or hereafter available at law, in equity, by statute or otherwise.
(c) Collection Costs; Attorney's Fees. In the case of an Event of
Default, if this Note is turned over to an attorney for collection, the Company
agrees to pay all reasonable costs of collection, including reasonable
attorney's fees and expenses and all out-of-pocket expenses incurred by the
Holder in connection with such collection efforts, which amounts may, at the
Holder's option, be added to the principal hereof.
2. Obligation to Pay Principal and Interest; Covenants. No provision
of this Note shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the place, at the respective times, at the rates, and in the currency herein
prescribed.
3. Covenants.
3.1. Affirmative Covenants. The Company covenants and agrees that,
while this Note is outstanding, it shall:
(a) Pay and discharge all taxes, assessments and governmental
charges or levies imposed upon it or upon its income and profits, or upon any
properties belonging to it before the same shall be in default; provided,
however, that the Company shall not be required to pay any such tax, assessment,
charge or levy which is being contested in good faith by proper proceedings and
adequate reserves for the accrual of same are maintained if required by
generally accepted accounting principles;
(b) Comply in all respects with all statutes, laws, ordinances,
orders, judgments, decrees, injunctions, rules, regulations, permits, licenses,
authorizations and requirements ("Requirement(s)") of all governmental bodies,
departments, commissions, boards, companies or associates insuring the premises,
courts, authorities, officials, or officers, which are applicable to the Company
or its property; except wherein the failure to comply would not have a material
adverse affect on the Company or its property; provided that nothing contained
herein shall prevent the Company from contesting the validity or the application
of any Requirements.
3.2. Negative Covenants. The Company covenants and agrees that while
this Note is outstanding it will not directly or indirectly:
(a) Declare or pay cash dividends;
(b) Purchase, redeem, retire or otherwise acquire for value any of
its membership interests now or hereafter outstanding; or
(c) Make any payment to an "affiliate" as that term is defined in
the Securities Exchange Act of 1934 unless such payment is made in the ordinary
course of business or consistent with past practices or pursuant to an
employment agreement.
4. Repayment.
4.1. Maturity. The Maturity Date shall be April 30, 2004.
4.2 Voluntary Prepayment. This Note may be prepaid by the Company at
any time in whole or in part without penalty or premium, but with at least five
(5) days notice to the Holder. Interest shall accrue to and include the date on
which prepayment is made.
5. Required Consent. The Company may not modify any of the terms of
this Note without the prior written consent of the Holder.
6. Lost Documents. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this Note or
any Note exchanged for it, and (in the case of loss, theft or destruction) of
indemnity satisfactory to it, and upon reimbursement to the Company of all
reasonable expenses incidental thereto, and upon surrender and cancellation of
such Note, if mutilated, the Company will make and deliver in lieu of such Note
a new Note of like tenor and unpaid principal amount and dated as of the
original date of the Note.
7. Miscellaneous.
7.1. Benefit. This Note shall be binding upon and inure to the
benefit of the parties hereto and their legal representatives, successors and
assigns.
7.2. Notices and Addresses. All notices, offers, acceptances and any
other acts under this Note (except payment) shall be in writing, and shall be
sufficiently given if delivered to the addressee in person, by Federal Express
or similar receipted delivery, by facsimile delivery or, if mailed, postage
prepaid, by certified mail, return receipt requested, as follows:
To Holder: To Holder's address on page 1 of this Note
To The Company: Essential Reality, LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
In either case with copies to: Xxxxxxx, Xxxxxx & Kaplowitz, LLP
000 Xxxx 00xx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx, Esq.
Fax: (000) 000-0000
Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxx, Esq.
Fax: (000) 000-0000
or to such other address as any of them, by notice to the others may designate
from time to time. Time shall be counted to, or from, as the case may be, the
delivery in person or five (5) business days after mailing.
7.3 Governing Law. This Note and any dispute, disagreement, or issue
of construction or interpretation arising hereunder whether relating to its
execution, its validity, the obligations provided therein or performance shall
be governed and interpreted according to the law of the State of New York and
agrees that service of process upon it mailed by certified mail to its address
shall be deemed in every respect effective service of process upon it in any
such suit, action or proceeding.
7.4 Binding Effect; Assignment. This Note and the various rights and
obligations arising hereunder shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and permitted assigns.
Neither this Note nor any of the rights, interests or obligations hereunder
shall be transferred or assigned (by operation of law or otherwise) by any of
the parties hereto without the prior written consent of the other party;
provided, however, that in connection with a merger of the Company or the sale
of assets by the Company, the Company may assign and transfer this Note and any
of the rights, interests or obligations hereunder. Any transfer or assignment of
any of the rights, interests or obligations hereunder in violation of the terms
hereof shall be void and of no force or effect.
7.5 Jurisdiction and Venue. Each of the Holder and the Company (i)
agree that any legal suit, action or proceeding arising out of or relating to
this Note shall be instituted exclusively in the courts of the State of New
York, (ii) waive any objection to the venue of any such suit, action or
proceeding and the right to assert that such forum is not a convenient forum,
and (iii) irrevocably consent to the jurisdiction of the courts of the State of
New York in any such suit, action or proceeding, and further agree to accept and
acknowledge service of any and all process which may be served in any such suit,
action or proceeding in the courts of the State of New York and agree that
service of process upon them mailed by certified mail to their respective
addresses shall be deemed in every respect effective service of process upon
them in any such suit, action or proceeding.
7.6 Section Headings. Section headings herein have been inserted for
reference only and shall not be deemed to limit or otherwise affect, in any
matter, or be deemed to interpret in whole or in part any of the terms or
provisions of this Note.
IN WITNESS WHEREOF, this Note has been executed and delivered on the
date specified above by the duly authorized representative of the Company.
ESSENTIAL REALITY, LLC
By: __________________________
Name:
Title:
