Exhibit 2.2
May 28, 2004
BY E-MAIL
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Xxxxxx Xxxxxxx, Esq.
c/o Xxxxxxxxxx@XXX.XXX
and x/x XxXxxxxxx@XXX.Xxx
Xxxx Xxxx, Xxx.
c/o XXxxx@xxxxxxx.xxx
Xxxxx Xxxxxx, Esq.
c/o XXxxxxx@xxxxxxx.xxx
RE: Draft of Assumption Agreement
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Gentlemen:
I am e-mailing the final version of the Assumption Agreement.
I am also e-mailing the Consent form with a May 28th date inserted.
As I told Xxxxx Xxxxxx earlier today, the title of the document is now
the "Assumption Agreement." All reference to the document in the Stock Purchase
Agreement should be as the "Assumption Agreement."
The Alpha agreement will follow in short order.
Very truly yours,
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
SJR:mc
Enclosure
cc: Xxxxxxx Xxxxxxxxxx, Esq.
c/o XXxxxxxxxxx@XXXxxx.xxx
ASSUMPTION AGREEMENT
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AGREEMENT, made as of May 28, 2004, by and among XXXXX HOLDING FINANCE,
LTD., a Xxxxxxxxxxxx corporation, having an address at Xxxxxxxxxxxxxxxx 00,
Xxxxxxxx 0000, XX-0000 Xxxxxx ("Xxxxx Holdings"), XXXXXXX XXXXXXX, an individual
with an address at Grushko & Xxxxxxx, P.C., 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxx, Xxx Xxxx 00000 ("Collateral Agent"), XXXXXX AIRPLANE COMPANY, INC., a
Delaware corporation with an address at Xxxxx Xxxxxxxx Field, Kerrville, Texas
78028 ("Xxxxxx Airplane") and XXXXXX AEROSPACE GROUP, LTD., a Delaware
Corporation with an address at Xxxxx Xxxxxxxx Field, Kerrville, Texas 78028
("Xxxxxx Group").
WHEREAS, prior to the date hereof Xxxxxx Group owned all of the issued
and outstanding shares of capital stock of Xxxxxx Airplane (the "Stock"); and
WHEREAS, concurrently herewith, Xxxxxx Group is selling and
transferring to Xxxxx Holding all of Xxxxxx Group's right, title and interest in
and to the Stock, subject to a separate Stock Purchase Agreement by and between
Xxxxxx Group and Xxxxx Holdings being executed concurrently herewith and subject
to the terms and conditions set forth below (the "Stock Sale"); and
WHEREAS, the parties identified on Schedule "A" annexed hereto and made
a part hereof (each, individually, a "Lender" and collectively, the "Lenders")
have made loans to Xxxxxx Airplane and Xxxxxx Group (the "Loans"); and
WHEREAS, to secure the Loans and all obligations arising under all
agreements executed by Xxxxxx Group and Xxxxxx Airplane in connection with the
Loans (collectively, the "Obligations"), Xxxxxx Group pledged and granted to
Collateral Agent, for the benefit of the Lenders, a first priority lien and
security interest in the Stock; and
WHEREAS, to further secure the Obligations, Xxxxxx Airplane granted to
Collateral Agent, for the benefit of the Lenders, a first priority lien and
security interest in certain of Xxxxxx Airplane's assets; and
WHEREAS, in connection with the Loans and the pledge of the Stock and
grant of security interest in certain assets (the Stock and the secured assets
sometimes hereinafter referred to as the "Collateral"), certain subscription
agreements, promissory notes (the "Notes"), stock pledge agreements (the "Pledge
Agreements"), security agreements (the "Security Agreements") and other
agreements were executed by and delivered to the appropriate parties (all such
agreements hereinafter sometimes referred to as the "Loan Documents"); and
WHEREAS, Collateral Agent has been designated as the agent of the
Lenders pursuant to the terms of certain separate Collateral Agent Agreements
made between Collateral Agent and each of the Lenders (the "Collateral Agent
Agreements"), and in such capacity has certain rights and duties with regard to
the Loans and all Collateral, including without limitation, the Stock; and
WHEREAS, subparagraph 6.2 of the Pledge Agreement specifically
prohibits Xxxxxx Group from selling, transferring, assigning or pledging the
Stock without the prior written consent of Collateral Agent; and
WHEREAS, an Event of Default (as defined in the Loan Documents) has
occurred and remains uncured; and
WHEREAS, pursuant to the terms of the Collateral Agent Agreements, the
approval of Lenders who hold not less than 65% of the outstanding secured Loans
(a "Majority In Interest") is required to take certain actions under the Loan
Documents; and
WHEREAS, a Majority In Interest have authorized and instructed
Collateral Agent to notice Xxxxxx Airplane and Xxxxxx Group of their default in
payment of the Loans and to take any and all action deemed necessary by
Collateral Agent including, but not limited to, taking possession and disposing
of all Collateral (the "Authorization"); and
WHEREAS, Collateral Agent deems it in the best interest of the Lenders
to consent to the Stock Sale, subject to the terms and conditions set forth
below;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Xxxxxx Airplane and Xxxxxx Group, jointly and severally, hereby (i)
acknowledge and agree that (a) an Event of Default (as defined in the Loan
Documents) has occurred and remains uncured and (b) the aggregate amount of the
Loans due and outstanding as of the date hereof is equal to or greater than
$21,109,894.27 (the "Default Amount") and (ii) irrevocably waive any and all
defenses and counterclaims with regard to the Default Amount and against the
Lenders and the Collateral Agent.
2. Subject to the terms and conditions set forth below, and in reliance
upon the Authorization, Collateral Agent hereby consents to the Stock Sale (the
"Consent").
3. The Stock shall be transferred to Xxxxx Holding subject to the
pledge of and security interest in the Stock granted to Collateral Agent
pursuant to the Pledge Agreements, as amended and supplemented by this
Agreement.
4. In consideration of the Consent granted by Collateral Agent, Xxxxx
Holding hereby assumes and agrees to be jointly and severally liable together
with Xxxxxx Airplane for all of the Obligations, including without limitation
the Default Amount, and agrees to pay each and every installment of the Loans,
from time to time, as same become due. Notwithstanding the assumption by Xxxxx
Holding of liability for the Obligations and the Default Amount, Xxxxxx Airplane
shall remain jointly and severally liable together with Xxxxx Holding for all of
the Obligations and the Default Amount.
5. In further consideration of the Consent granted by Collateral Agent,
Xxxxx Holding, Xxxxxx Airplane and Xxxxxx Group, jointly and severally, hereby
agree to indemnify and hold Collateral Agent harmless from and against any and
all claims, actions, suits, proceedings, demands, assessments (and the costs,
losses, liabilities, damages or expenses, including reasonable attorneys' fees
associated therewith) raised by the Lenders, Xxxxx Holding, Xxxxxx Airplane,
Xxxxxx Group and/or any other creditors of Xxxxxx Airplane and/or Xxxxxx Group
arising out of or in connection with this Agreement, the Collateral, the
Obligations and/or the Default Amount.
6. Xxxxx Holding hereby affirms and agrees to be bound by all of the
Loan Documents, including without limitation, the Notes, the Pledge Agreements
and the Security Agreements and agrees to be bound by all of their terms as if
Xxxxx Holding had originally executed all of the Loan Documents, subject to any
amendments to the Loan Documents effectuated by this Agreement.
7. In further consideration of the Consent granted by Collateral Agent,
Xxxxx Holding, Xxxxxx Airplane and Xxxxxx Group, jointly and severally, hereby
waive all notice and grace periods under any and all of the Loan Documents.
8. The Consent granted by Collateral Agent has been granted in reliance
upon Xxxxx Holding's representation and undertaking to deposit the sum of at
least Four Million ($4,000,000.00) Dollars in a depository account of Xxxxxx
Company as an investment in Xxxxxx Company (the "4,000,000 Investment") on or
before thirty (30) days following the date hereof, i.e., on or before June 27,
2004 (the "Deadline"). In the event Xxxxx Holding fails to deposit the entire
$4,000,000 Investment in a Xxxxxx Company depository account as an investment in
Xxxxxx Company on or before the Deadline, Collateral Agent shall have the
option, in its sole discretion, to declare an "Event of Default." The
declaration of an Event of Default by Collateral Agent pursuant to this
Paragraph 8 shall be deemed an Event of Default under the Loan Documents and
shall have the same effect and consequence as the occurrence of an Event of
Default as defined under any of the Loan Documents.
9. Supplementing and amending each of the Loan Documents, in the event
Collateral Agent, determines in its sole discretion, for any reason whatsoever,
that (i) the financial condition of Xxxxxx Airplane and/or Xxxxxx Group has
deteriorated, (ii) the Collateral has been compromised or deteriorated in value
or (iii) repayment of the Loans is in any way jeopardized, Collateral Agent
shall have the option, in its sole discretion, to declare an "Event of Default."
The declaration of an Event of Default by Collateral Agent pursuant to this
Paragraph 9 shall be deemed an Event of Default under the Loan Documents and
shall have the same effect and consequence as the occurrence of an Event of
Default as defined under any of the Loan Documents.
10. Supplementing and amending each of the Loan Documents, Xxxxx
Holding shall be prohibited from voting its shares in Xxxxxx Airplane for, or in
any other way causing, the issuance of additional capital stock or other equity
in Xxxxxx Airplane or the taking of any other act that causes the dilution of
Xxxxx Holding's one hundred (100%) percent equity interest in Xxxxxx Airplane.
In the event Xxxxx Holding shall at any time for any reason own less than one
hundred (100%) percent of all of the issued and outstanding capital stock and
all other equity interest in Xxxxxx Airplane, Collateral Agent shall have the
option, in its sole discretion, to declare an "Event of Default." The
declaration of an Event of Default by Collateral Agent pursuant to this
Paragraph 10 shall be deemed an Event of Default under the Loan Documents and
shall have the same effect and consequence as the occurrence of an Event of
Default as defined under any of the Loan Documents.
11. Supplementing and amending each of the Loan Documents, in the event
an Event of Default as defined under any of the Loan Documents, as amended and
supplemented by Paragraphs 8, 9 and 10 above, shall occur, Collateral Agent
shall have the right to distribute any and all of the Stock and/or the
Collateral to the Lenders pro rata to their Loan holdings without resort to a
public or private sale or foreclosure.
12. Supplementing and amending each of the Loan Documents, at any
public or private sale of Collateral, a purchasing Lender may receive a credit
against the purchase price for any asset being purchased by such Lender that is
equal to such Lender's proportionate share of the net proceeds of the sale of
the Collateral.
13. Xxxxx Holding hereby represents and warrants to Collateral Agent as
follows: 13.1 Xxxxx Holding is a corporation duly organized, validly existing
and in good standing under the laws of Xxxxxxxxxxxx. Xxxxx Holding has corporate
power to enter into and consummate the transactions contemplated by this
Agreement. All proceedings necessary to authorize delivery and performance of
this Agreement have been properly taken and this Agreement is enforceable
against Xxxxx Holding in accordance with its terms.
13.2 The execution and delivery of this Agreement by Xxxxx
Holding does not, and the compliance with, the fulfillment of and the
consummation of the transactions contemplated by this Agreement will not,
violate or conflict with any provisions of the Articles of Incorporation or
By-Laws of Xxxxx Holding or result in a breach of, or constitute a default
under, or result in the acceleration of any obligation under any agreement or
instrument to which Xxxxx Holding is a party or by which it is bound or violate
any order, judgment, award or decree to which it is a party or to which Xxxxx
Holding is subject.
14. Xxxxxx Airplane hereby represents and warrants to Collateral Agent
as follows:
14.1 Xxxxxx Airplane has corporate power to enter into and
consummate the transactions contemplated by this Agreement. All proceedings
necessary to authorize delivery and performance of this Agreement have been
properly taken and this Agreement is enforceable against Xxxxxx Airplane in
accordance with its terms.
14.2 The execution and delivery of this Agreement by Xxxxxx
Airplane does not, and the compliance with, the fulfillment of and the
consummation of the transactions contemplated by this Agreement will not,
violate or conflict with any provisions of the Articles of Incorporation or
By-Laws of Xxxxxx Airplane or result in a breach of, or constitute a default
under, or result in the acceleration of any obligation under any agreement or
instrument to which Xxxxxx Airplane is a party or by which it is bound or
violate any order, judgment, award or decree to which it is a party or to which
Xxxxxx Airplane is subject.
15. Xxxxxx Group hereby represents and warrants to Collateral Agent as
follows:
15.1 Xxxxxx Group has corporate power to enter into and
consummate the transactions contemplated by this Agreement. All proceedings
necessary to authorize delivery and performance of this Agreement have been
properly taken and this Agreement is enforceable against Xxxxxx Group in
accordance with its terms.
15.2 The execution and delivery of this Agreement by Xxxxxx
Group does not, and the compliance with, the fulfillment of and the consummation
of the transactions contemplated by this Agreement will not, violate or conflict
with any provisions of the Articles of Incorporation or By-Laws of Xxxxxx Group
or result in a breach of, or constitute a default under, or result in the
acceleration of any obligation under any agreement or instrument to which Xxxxxx
Group is a party or by which it is bound or violate any order, judgment, award
or decree to which it is a party or to which Xxxxxx Group is subject.
16. This Agreement may be modified or amended only with the written
consent of each party hereto.
17. No waiver of any breach or condition of this Agreement shall be
deemed to be a waiver of any subsequent breach or condition.
18. All notices, requests, demands and other communications which are
required to be or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when delivered in person, or transmitted
by telecopy or telex, or upon receipt after dispatch by certified or registered
first class mail, postage prepaid, return receipt requested, to the party to
whom the same is so given or made, at the following addresses (or such others as
shall be provided in writing hereinafter):
(a) If to Collateral Agent:
Xxxxxxx Xxxxxxx, Esq.
Grushkov & Xxxxxxx, P.C.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
With a copy to:
Xxxxxxxx & Xxxxxx
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Facsimile: 000-000-0000
(b) If to Xxxxx Holding:
Xxxxxxxxxxxxxxxx 00
Xxxxxxxx 0000
XX-0000 Xxxxxx
Facsimile: 011-41-442-000-910
Attn: Francopis Morax, Director
With a copy to:
Sichenzia Xxxx Xxxxxxxx Xxxxxxx LLP
1065 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx Xxxx, Esq.
Facsimile: 212-930-9725
(c) If to Xxxxxx Airplane or Xxxxxx Group:
Xxxxx Xxxxxxxx Field
Xxxxxxxxx, Xxxxx 00000
With a copy to:
Xxxxxxx & Xxxxxxxxx Xxxxxx Xxxxxx, LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx xxxx 00000
Attn: Xxxxxx Xxxx Xxxxxxxx, Esq.
Facsimile: 000-000-0000
19. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and, to the extent permitted by this Agreement, their
respective personal representatives, heirs, successors and permitted assigns.
20. This Agreement shall be construed in accordance with the laws of
the State of New York without reference to the conflicts of laws and rules
thereof. Any legal action or proceeding against a party with respect to this
Agreement may be brought in the Courts of the State of New York or of the United
States for the Southern District of New York, and, by execution and delivery of
this Agreement, each party hereby irrevocably accepts for itself and in respect
of its property, generally and unconditionally, the jurisdiction of the
aforesaid courts. Each party hereby irrevocably waives any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Agreement brought in
the aforesaid courts and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum.
21. If any provision of this Agreement, or the application thereof to
any person or circumstance, is held invalid, such invalidity shall not affect
any other provisions which can be given effect without the invalid provision or
application, and to this end the provisions hereof shall be severable and the
remaining, valid provisions shall remain of full force and effect.
22. This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original; but all of such counterparts shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Assumption Agreement
effective as of the date first above written.
XXXXX HOLDING FINANCE, LTD.
By: /s/ Francois Morax
-----------------------------
Francois Morax, Director
XXXXXXX XXXXXXX
XXXXXX AIRPLANE COMPANY, INC.
By:
XXXXXX AEROSPACE GROUP LTD.
By:
DRAFT
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TO:Xxxxxxx X. Xxxxxxx - Collateral Agent
c/o Grushko & Xxxxxxx, P.C.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Pursuant to various Collateral Agent Agreements entered into on or
about December, 2002 through October, 2003, you were appointed as Collateral
Agent to take action on behalf of the Secured Lenders upon the written
instruction of sixty-five percent (65%) of the Lenders of outstanding Obligation
(as defined in the Loan Documents).
Therefore, you are hereby instructed as Collateral Agent to execute and
deliver a certain Assumption and Modification Agreement, dated as of May 28,
2004, by and among Xxxxx Holdings Finance, Ltd., you as Collateral Agent, Xxxxxx
Airplane Company, Inc. and Xxxxxx Aerospace Group, Ltd., a copy of which is
annexed hereto as Schedule ("A") (the "Assumption and Modification Agreement").
The execution by you as Collateral Agent of the Assumption and
Modification Agreement shall be deemed an act taken by you as Collateral Agent
in furtherance of your duties and obligations under the Collateral Agent
Agreements and subject to such releases of liability and indemnifications as are
provided therein.
