EXHIBIT 2.1
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT ("Agreement") made as of January 29,
2002 by and between CONGRESS FINANCIAL CORPORATION (SOUTHWEST), a Texas
corporation ("Assignor"), and ADVANCED AERODYNAMICS & STRUCTURES, INC., a
Delaware corporation ("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor has entered into certain financing arrangements with
▇▇▇▇▇▇ Aircraft Corporation ("Debtor" as hereinafter further defined) pursuant
to which Assignor may make loans and advances and provide other financial
accommodations to Debtor as set forth in the Loan and Security Agreement, dated
May 15, 1995, between Assignor and Debtor, as amended (the "Loan Agreement" as
hereinafter further defined), which obligations of Debtor to Assignor are
secured by substantially all of the assets and properties of Debtor and are
guaranteed by Avion Holding Corporation, formerly known as ▇▇▇▇▇▇ Holding
Corporation ("Avion Holding"), AVAQ Group, Inc. ("AVAQ Group"), ▇▇▇▇ ▇. ▇▇▇▇
("▇▇▇▇ ▇▇▇▇", and together with Avion Holding and AVAQ Group, each individually
a "Guarantor" and, collectively, "Guarantors" as hereinafter further defined);
and
WHEREAS, Debtor has commenced the Chapter 11 Case (as hereinafter defined)
in the Bankruptcy Court (as hereinafter defined) pursuant to which Debtor has
retained possession of its assets and is authorized under the Bankruptcy Code
(as hereinafter defined) to continue the management and operation of its
business as a debtor-in-possession pursuant to Sections 1107 and 1108 of the
Bankruptcy Code; and
WHEREAS, the Bankruptcy Court has entered a Final Financing Order (as
hereinafter defined) pursuant to which Assignor may make post-petition loans and
advances to Debtor secured by substantially all of the assets and properties of
Debtor as set forth in the Final Financing Order and the Financing Agreements
(as hereinafter defined); and
WHEREAS, Assignor has filed a Proof of Claim (as hereinafter defined) in
the Chapter 11 Case with the Bankruptcy Court evidencing Assignor's pre-petition
secured claim, post-petition secured claim and super-priority administrative
claim against Debtor pursuant to the Final Financing Order; and
WHEREAS, Assignor desires to assign to Assignee all of its right, title
and interest in and to all of the Obligations (as hereinafter defined), the
Collateral (as hereinafter defined) the Proof of Claim and all of the Financing
Agreements; and
WHEREAS, Assignee desires to accept Assignor's right, title and interest
in and to the Obligations, the Collateral, Proof of Claim and the Financing
Agreements to the extent set forth below; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by each of the parties hereto and
in consideration of the mutual covenants set forth herein, the parties hereto
hereby agree as follows:
1. Definitions
1.1 "AASI Collateral Assignment of Secured Debt" shall mean the Collateral
Assignment of Debt and Security Agreements, dated of even date herewith, between
Assignor and Assignee, as the same now exists or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced.
1.2 "AASI Secured Notes" shall mean, collectively, the Tranche A Note, the
Tranche B Note and the Tranche C Note and the Tranche D Note.
1.3 "AASI Security Agreements" shall mean, collectively (as the same now
exist or may hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced), the following: (i) the AASI Secured Notes, (ii) the AASI
Collateral Assignment of Secured Debt and (iii) all other agreements, documents
and instruments executed or delivered in connection therewith.
1.4 "Additional Financing" shall have the meaning given to such term in
Section 3.4 hereof.
1.5 "Assigned Rights" means any and all of Assignor's right, title, and
interest in, to and under the following:
(a) the Obligations, including, without limitation, all Loans;
(b) the Financing Agreements;
(c) the Proof of Claim;
(d) all claims (including "claims" as defined in Bankruptcy Code ss.
101(5)), suits, causes of action, and any other right of Assignor, whether known
or unknown, against Debtor, any Guarantor, or any of their respective
Affiliates, agents, representatives, contractors or advisors that in any way is
based upon, arises out of or is related to any of the foregoing, including, to
the extent permitted to be assigned under applicable law, all claims (including
contract claims, tort claims, malpractice claims, and claims under any law
governing the purchase and sale of, or indentures for, securities), suits,
causes of action, and any other right of Assignor against any attorney,
accountant or financial advisor arising under or in connection with the
Financing Agreements;
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(e) all guarantees by Guarantors and all Collateral and security of
any kind for or in respect of the foregoing;
(f) subject to Assignor's rights of setoff set forth in Section 12
hereof, all cash, securities, or other property, and all setoffs and
recoupments, received, applied, or effected by or for the account of Assignor
under the Loans, if any, and other extensions of credit under the Financing
Agreements (whether for principal, interest, fees, reimbursement obligations, or
otherwise) after the date hereof, including all distributions obtained by or
through redemption, consummation of a plan of reorganization, restructuring,
liquidation, or otherwise of Debtor, any Guarantor or the Financing Agreements,
and all cash, securities, interest, dividends, and other property that may be
exchanged for, or distributed or collected with respect to, any of the
foregoing; and
(g) all proceeds of the foregoing.
1.6 "Assignment Agreements" shall mean, collectively (a) this Agreement,
(b) the Transfer Notices and (c) all other assignments, indorsements,
agreements, documents and instruments executed or delivered in common herewith.
1.7 "Assumed Obligations" shall mean all of Assignor's duties,
responsibilities, obligations and liabilities with respect to, or in connection
with, or in any way related to the Assigned Rights, whether arising before, on
or after the date hereof, direct or indirect, primary or secondary, contingent
or non-contingent including, without limitation, the following:
(a) all obligations to make loans or advances to Debtor pursuant to and in
accordance with the terms of the Financing Agreements and the Final Order,
including, without limitation, the Budget approved by the Bankruptcy Court on
January 16, 2002;
(b) all liabilities and obligations of Assignor arising out of, or related
to the Obligations, the Collateral, the Financing Agreements, the Proof of Claim
or the Chapter 11 Case;
(c) all obligations, indebtedness or liabilities arising from any demand,
action, cause of action, suit, controversy, damage, claim, counterclaim,
defense, right or liability whatsoever, of every name and nature, known or
unknown, suspected or unsuspected, both at law and in equity, which any Person
or any of its successors, assigns, or other legal representatives may now or
hereafter own, hold, have or claim to have against Assignor for or on account
of, or in relation to, or in any way in connection with (i) any right of setoff,
offset, right of subrogation or recoupment claim of any kind (whether asserted
under the Bankruptcy Code, including, without limitation, Sections 105, 506(c),
510, 553 or any other Section of the Bankruptcy Code, applicable law, equity or
otherwise) against or in respect to any of the Assigned Rights, (ii) any claim
(whether under the Bankruptcy Code, including, without limitation, Sections 105,
502(b)(2), 506(b), 506(d) or any other Section of the Bankruptcy Code,
applicable law, equity or otherwise) for or on account of, or in relation to, or
in any way in connection with any of the Assigned Rights not being fully secured
by the Collateral at any time prior to, during or after the Chapter 11 Case;
(iii)
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any actions by any Person asserting any claim to recover any asset, property or
interest by or on behalf of Debtor or any trustee of Debtor (whether in the
Chapter 11 Case or any subsequent case to which the Chapter 11 Case is
converted, whether under Chapter 7 of the Bankruptcy Code or otherwise),
including, without limitation, any claim to recover any asset, property or
interest as a result of transfers or obligations avoided or actions commenced,
maintained or taken pursuant to Sections 105, 544, 545, 547, 548, 549, 550, 551
and 553 of the Bankruptcy Code or under any other Section of the Bankruptcy
Code, applicable law, equity or otherwise; (v) any claim arising in connection
with or related to any of the proceedings set forth on Schedule 1.7 hereto; and
(vi) any claim or right afforded to the Official Committee of Unsecured
Creditors in Debtor's Chapter 11 Case under paragraph 6 of the Financing Order,
the Bankruptcy Code, applicable law or otherwise.
1.8 "Bankruptcy Code" shall mean the United States Bankruptcy Code, being
Title 11 of the United States Code as enacted in 1978, as the same has
heretofore been or may hereafter be amended, recodified, modified or
supplemented, together with all rules, regulations and interpretations
thereunder or related thereto.
1.9 "Bankruptcy Court" shall mean the United States Bankruptcy Court for
the Western District of Texas or any other court having jurisdiction over the
Chapter 11 Case from time to time.
1.10 "Budget" shall have the meaning given to such term in the Loan
Agreement.
1.11 "Cash Purchase Price" shall mean the cash portion of the Purchase
Price payable by Assignee to Assignor in accordance with the terms and
conditions of Section 3.1 hereof.
1.12 "Chapter 11 Case" shall mean the Chapter 11 Case of Debtor, referred
to as In re ▇▇▇▇▇▇ Aircraft Corporation, Chapter 11 Case No. 01-53433K, which is
being administered under the Bankruptcy Code, and is pending in the Bankruptcy
Court.
1.13 "Collateral" shall mean all real and personal property of Debtor's
estate, wheresoever located, of any kind or nature, upon which Assignor has
heretofore been granted a security interest or lien pursuant to the Financing
Agreements or the Final Financing Order.
1.14 "Debtor" shall mean ▇▇▇▇▇▇ Aircraft Corporation, a New Jersey
corporation, as a Debtor and Debtor-in-Possession, and its successors and
assigns (including, without limitation, any trustee or other fiduciary hereafter
appointed as its legal representative or with respect to the property of the
estate of such corporation whether under Chapter 11 of the Bankruptcy Code or
any subsequent Chapter 7 case and its successor upon conclusion of the Chapter
11 Case of such corporation).
1.15 "Deferred Purchase Price" shall mean the deferred portion of the
Purchase Price payable by Assignee to Assignor in accordance with the terms and
conditions of Sections 3.2 and 3.4 hereof.
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1.16 "Deferred Purchase Price Collateral" shall have the meaning given to
such term in the AASI Collateral Assignment of Secured Debt.
1.17 "Deferred Purchase Price Obligations" shall have the meaning given to
such term in the AASI Collateral Assignment of Secured Debt.
1.18 "Encumbrance" means any mortgage, pledge, lien, security interest,
charge, hypothecation, or other encumbrance, security agreement, or security
arrangement.
1.19 "Financing Agreements" shall mean, collectively, the Loan Agreement
and the agreements, documents and instruments executed or delivered in common
therewith, including, without limitation, the agreements, documents and
instruments set on forth on Schedule 1.19 hereto.
1.20 "Final Financing Order" shall mean, collectively (as the same has
heretofore been or may hereafter be amended, modified, supplemented or
extended), the following: (i) Final Order Pursuant to Section 364(c) of The
Bankruptcy Code And Rule 4001 of The Federal Rules of Bankruptcy Procedure
Authorizing Debtor (A) to Obtain Post-petition Financing, (B) Granting Senior
Liens and Priority Administrative Expense Status, (C) Modifying the Automatic
Stay and (D) Authorizing Debtor to Enter into Agreements with Congress Financial
Corporation the First Interim Financing Order, the Second Interim Financing
Order, the Permanent Financing Order and (ii) such other orders relating thereto
or authorizing the granting of credit by Assignor to Debtor on an emergency,
interim or permanent basis pursuant to Section 364 of the Bankruptcy Code as may
be issued or entered by the Bankruptcy Court in the Chapter 11 Case, including,
without limitation, the right to make advances pursuant to a Budget, including,
without limitation, the Budget approved by the Bankruptcy Court on January 16,
2002.
1.21 "Governmental Authority" means any Federal, State, or other
governmental department, agency, institution, authority, regulatory body, court
or tribunal, foreign or domestic, and includes arbitration bodies, whether
governmental, private or otherwise.
1.22 "Guarantors" shall mean, individually and collectively, (i) AVAQ
Group, Inc., a Florida corporation, and Avion Holding Corporation, a Delaware
corporation, and their respective successors and assigns, and (ii) ▇▇▇▇ ▇. ▇▇▇▇,
his heirs, executors, administrators, successors and assigns; provided, that, if
a collateral assignment of life insurance policy or policies maintained by
Debtor on the life of ▇▇▇▇ ▇. ▇▇▇▇ are executed and delivered in accordance with
the terms as of the Loan Agreement in an aggregate amount of not less than
$2,500,000, ▇▇▇▇ ▇▇▇▇ shall mean ▇▇▇▇ ▇. ▇▇▇▇, his successors and assigns, but
not his heirs, executors or administrators.
1.23 "Lepercq de Neuflize" shall mean Lepercq de Neuflize & Co.
Incorporated, a New York corporation, and its successors and assigns.
1.24 "Lepercq Participation" shall mean the participation in the
Obligations, Collateral and Financing Agreements of Lepercq as set forth in the
Junior Participation Agreement, dated as
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of April 21, 1999, between Assignor and Lepercq, as amended by Amendment No. 1
to Participation Agreement, dated as of March 12, 2001, as the same now exists
or may hereafter be amended, modified, supplemented, extended, renewed, restated
or replaced.
1.25 "Loans" shall have the meaning given to such term in the Loan
Agreement.
1.26 "Loan Agreement" shall mean the Loan and Security Agreement, dated
May 15, 1995, between Assignor and Debtor, as amended by Amendment No. 1 to Loan
and Security Agreement, dated as of May 15, 1995, Amendment No. 2 to Loan and
Security Agreement, dated June 18, 1996, Amendment No. 3 to Loan and Security
Agreement, dated as of November 14, 1996, Amendment No. 4 to Loan and Security
Agreement, dated as of April 14, 1997, Amendment No. 5 to Loan and Security
Agreement, dated as of September 24, 1997, Amendment No. 6 to Loan and Security
Agreement, dated as of November 14, 1997, Amendment No. 7 to Loan and Security
Agreement, dated as of December 17, 1997, Amendment No. 8 to Loan and Security
Agreement, dated as of February 27, 1998, Amendment No. 9 to Loan and Security
Agreement, dated as of March 13, 1998, Amendment No. 10 to Loan and Security
Agreement, dated August 13, 1998, Amendment No. 11 to Loan and Security
Agreement, dated as of October 30, 1998, Amendment No. 12 to Loan and Security
Agreement, dated April 19, 1999, Amendment No. 13 to Loan and Security
Agreement, dated September 14, 1999, Amendment No. 14 to Loan and Security
Agreement, dated November 15, 1999, Amendment No. 15 to Loan and Security
Agreement, dated as of March 12, 2001, Amendment No. 16 to Loan and Security
Agreement, dated as June 11, 2001, Forbearance Agreement, dated July 20, 2001,
and the Ratification and Amendment Agreement, dated as of August 3, 2001, as the
same now exists or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced.
1.27 "Obligations" shall mean all Loans and all other advances, debts,
obligations, liabilities, indebtedness, covenants and duties of Debtor to
Assignor of every kind and description, however evidenced, whether direct or
indirect, absolute or contingent, joint or several, secured or unsecured, due or
not due, primary or secondary, liquidated or unliquidated, arising before, on
and after the Petition Date and whether arising on or after the conversion or
dismissal of the Chapter 11 Case, or before, during and after the confirmation
of any plan of reorganization in the Chapter 11 Case, and arising under or
related to the Loan Agreement, the other Financing Agreements, the Final
Financing Order or by operation of law or otherwise and whether incurred by
Debtor as principal, surety, endorser, guarantor or otherwise and including,
without limitation, all principal, interest, financing charges, letter of credit
fees, unused line fees, servicing fees, line increase fees, early termination
fees, prepayment penalties, late payment fees, other fees, commissions, costs,
expenses and attorneys', accountants' and consultants' fees and expenses
incurred by Assignor in connection with any of the foregoing.
1.28 "Person" or "person" shall mean any individual, sole proprietorship,
partnership, corporation (including, without limitation, any corporation which
elects subchapter S status under the Internal Revenue Code of 1986, as amended),
business trust, unincorporated association, joint stock corporation, trust,
joint venture, limited liability company, limited liability partnership or other
entity or any government or any agency or instrumentality or political
subdivision thereof.
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1.29 "Petition Date" shall mean the date of the commencement of the
Chapter 11 Case.
1.30 "Prime Rate" shall have the meaning given in the AASI Secured Notes.
1.31 "Proof of Claim" shall mean the Proof of Claim, together with the
Proof of Claim Rider, filed on November 19, 2001, by Assignor with the
Bankruptcy Court evidencing each of Assignor's pre-petition secured claim,
post-petition secured claim and super-priority administrative claim against
Debtor in the Chapter 11 Case, as the same has heretofore been or may hereafter
be amended, modified, supplemented or extended.
1.32 "Purchase Price" shall mean the Cash Purchase Price and the Deferred
Purchase Price.
1.33 "Tranche A" shall mean that portion of the Deferred Purchase Price
payable in accordance with Section 3.2(a) hereof.
1.34 "Tranche A Note" shall mean the Secured Tranche A Promissory Note,
dated of even date herewith, made by Assignee payable to the order of Assignor
in the original principal amount of $500,000, as the same now exists or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
1.35 "Tranche B" shall mean that portion of the Deferred Purchase Price
payable in accordance with Section 3.2(b) hereof.
1.36 "Tranche B Note" shall mean the Secured Tranche B Promissory Note,
dated of even date herewith, made by Assignee payable to the order of Assignor
in the original principal amount of $2,500,000, as the same now exists or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
1.37 "Tranche C" shall mean that portion of the Deferred Purchase Price
payable in accordance with Section 3.2(c) hereof.
1.38 "Tranche C Note" shall mean the Secured Tranche C Promissory Note,
dated of even date herewith, made by Assignee payable to the order of Assignor
in the original principal amount of $1,500,000, as the same now exists or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced.
1.39 "Tranche D" shall mean that portion of the Deferred Purchase Price
payable in accordance with Section 3.2(d) hereof.
1.40 "Tranche D Note" shall mean the Limited Recourse Secured Tranche D
Promissory Note, dated of even date herewith, made by Assignee payable to the
order of Assignor in the original principal amount of $5,714,408.71 as the same
now exists or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced.
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1.41 "Transfer Notice" shall mean the Transfer Notice filed with the
Bankruptcy Court in the Chapter 11 Case to duly reflect the assignment of the
Assigned Rights to Assignee under this Agreement in accordance with Section 6
hereof.
2. Assignment and Assumption. In consideration of the mutual covenants and
agreements contained in, and subject to the terms and conditions of, this
Agreement:
2.1 Subject to the satisfaction of the conditions set forth in Section 4.1
hereof, Assignor does hereby sell, assign, transfer, convey and set over to
Assignee without recourse, representation or warranty of any kind, except as
expressly set forth herein, all of the Assigned Rights, and Assignor does hereby
assign, transfer, delegate to Assignee all of the Assumed Obligations; and
2.2 Subject to the satisfaction of the conditions set forth in Section 4.2
hereof, Assignee does hereby purchase, acquire and accept from Assignor all of
the Assigned Rights, and Assignee does hereby assume and agree to perform and
fully discharge and comply with all of the Assumed Obligations and be directly
responsible for all Assumed Obligations.
3. Payment of the Purchase Price. In consideration of the assignment by
Assignor to Assignee of all of the Assigned Rights, Assignee shall pay to
Assignor $13,714,408.71, as follows (the "Purchase Price"):
3.1 The amount of $3,500,000 shall be paid by Assignee to Assignor in
immediately available funds on the date hereof (the "Cash Purchase Price") by
wire transfer in accordance with the wire transfer instructions set forth on
Schedule 3.1 hereto.
3.2 The balance of the Purchase Price in the amount of $10,214,407.71 (the
"Deferred Purchase Price") shall be payable by Assignee to Assignor pursuant to
the AASI Secured Notes as follows.
(a) Assignee shall pay to Assignor a portion of the Deferred Portion
Price in the amount of $500,000 ("Tranche A"). Tranche A shall be evidenced by
and be payable pursuant to the Tranche A Note and the other AASI Security
Agreements. The Tranche A Note shall be for a term of six (6) months. All
principal shall be due and payable at the end of the six (6) month term unless
sooner payable pursuant to the mandatory prepayments in accordance with the
terms set forth in Section 3.4 hereof and the other terms and conditions of the
AASI Security Agreements. Interest shall be payable during the term of the
Tranche A Note on the first business day of each month commencing February 1,
2002 and the Tranche A Note shall bear interest at the Prime Rate. The Tranche A
Note shall be secured by all of the Deferred Purchase Price Collateral.
(b) Assignee shall pay to Assignor a portion of the Deferred Portion
Price in the amount of $2,500,000 ("Tranche B"). Tranche B shall be evidenced by
and be payable pursuant to the Tranche B Note and the other AASI Security
Agreements. The Tranche B Note shall be for a term of thirty-six (36) months.
Principal shall be payable in twelve (12) consecutive quarterly
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payments with final payment in full due at the end of the thirty-six (36) month
term unless sooner payable pursuant to the mandatory prepayments in accordance
with the terms set forth in Section 3.4 hereof and the other terms and
conditions of the AASI Security Agreements. Interest shall be payable during the
term of the Tranche B Note on the first business following the end of each
quarter commencing with the quarter ending March 31, 2002. The Tranche B Note
shall bear interest at the Prime Rate. The Tranche B Note shall be secured by
all of the Deferred Purchase Price Collateral.
(c) Assignee shall pay to Assignor a portion of the Deferred Portion
Price in the amount of $1,500,000 ("Tranche C"). Tranche C shall be evidenced by
and be payable pursuant to the Tranche C Note and the other AASI Security
Agreements. The Tranche C Note shall be for a term of sixty (60) months. All
principal shall be due and payable at the end of the sixty (60) month term
unless sooner payable pursuant to the mandatory prepayments in accordance with
the terms set forth in Section 3.4 hereof and the other terms and conditions of
the AASI Security Agreements. No interest shall be payable during the first
thirty (30) months of the term of the Tranche C Note but shall be payable on and
after the thirty-first (31st) month of the term through and including the end of
the term of the Tranche C Note. At such time, interest on the Tranche C Note
shall be payable quarterly and shall bear interest at the Prime Rate. The
Tranche C Note shall be secured by all of the Deferred Purchase Price
Collateral.
(d) Assignee shall pay to Assignor a portion of the Deferred Portion
Price in the amount of $5,714,408.71 ("Tranche D"). Tranche D shall be evidenced
by and be payable pursuant to the Tranche D Note and the other AASI Security
Agreements. The Tranche D Note shall be for a term of sixty (60) months. All
principal shall be due and payable at the end of the sixty (60) month term
unless sooner payable in accordance with the terms of the AASI Security
Agreements. The Tranche D Note shall be secured by all of the Deferred Purchase
Price Collateral and the liability of AASI in the indebtedness evidenced by the
Tranche D Note shall be limited to the value of the Deferred Purchase Price
Collateral. The Tranche D Note shall bear interest at the Prime Rate but shall
accrue and not be payable until the end of the term of the Tranche D Note;
provided, that, if Assignee repays all of the indebtedness, liabilities and
obligations under the Tranche A Note, the Tranche B Note, the Tranche C Note and
the other AASI Security Agreements, then all indebtedness, liabilities and
obligations under the Tranche D Note shall be forgiven and the Tranche D Note
shall be marked "cancelled" and "paid in full" in connection with the
termination of the AASI Security Agreements.
3.3 The AASI Secured Notes shall be secured by a first priority perfected
security interest and lien in favor of Assignor in and on all of Assignee's
right, title and interest in and to the Assigned Rights pursuant to the AASI
Security Agreements; provided, that, Assignor agrees to release such security
interest in and lien on the Assigned Rights in accordance with the terms and
conditions of the AASI Security Agreements.
3.4 Assignee has advised Assignor that Assignee intends to seek to obtain
additional loans or investments, the proceeds of which are to be used repay the
obligations of Assignee to Assignor evidenced by or arising out of the AASI
Secured Notes (the "Additional Financing").
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Assignee shall make mandatory prepayments in respect of the obligations
evidenced by or arising out of the AASI Secured Notes as follows:
(a) If Assignee obtains Additional Financing on or before the
maturity date of the Tranche C Note but after the maturity date of the Tranche A
Note and the principal amount of such Additional Financing is equal to or
exceeds $10,000,000 in the aggregate, then the initial proceeds of such
Additional Financing shall be used to prepay the Tranche C Note in the principal
amount of $750,000.
(b) If Assignee obtains any such Additional Financing on or before
the maturity date of each of the Tranche C Note and the Tranche A Note and the
principal amount of such Additional Financing is equal to or exceeds $10,000,000
in the aggregate, then Assignee shall pay to Assignor (i) the amount equal to
all of the obligations, liabilities and indebtedness owed under the Tranche A
Note (including, without limitation, principal, interest, fees, costs, expenses
and other charges in respect thereof payable by Assignee to Assignor) and (ii)
$750,000 as a partial prepayment in respect of the outstanding principal under
the Tranche C Note.
(c) If Assignee obtains any such Additional Financing on or before
the maturity date of the Tranche C Note but after the maturity date of the
Tranche A Note and the principal amount of such Additional Financing is less
than $10,000,000 in the aggregate, then Assignee shall pay to Assignor (i) the
amount equal to all of the obligations, liabilities and indebtedness under the
Tranche A Note (including, without limitation, principal, interest, fees, costs,
expenses and other charges in respect thereof payable by Assignee to Assignor)
and (ii) the amount equal to seven and one-half (7 1/2%) percent of the
principal amount of such Additional Financing as a partial prepayment in respect
of the outstanding principal under the Tranche C Note.
(d) If Assignee obtains any such Additional Financing on or before
the maturity date of each of the Tranche C Note and the Tranche A Note and the
principal amount of such Additional Financing is less than $10,000,000 in the
aggregate, then Assignee shall pay to Assignor (i) the amount equal to all of
the obligations, liabilities and indebtedness under the Tranche A Note
(including, without limitation, principal, interest, fees, costs, expenses and
other charges in respect thereof payable by Assignee to Assignor) and (ii) the
amount equal to seven and one-half (7 1/2%) percent of the principal amount of
such Additional Financing as a partial prepayment in respect of the then
outstanding principal under the Tranche C Note.
4. Conditions Precedent.
4.5 Assignee's obligations to pay the Purchase Price to Assignor, to
acquire the Assigned Rights, to assume the Assumed Obligations and to grant to
Assignee a security interest in all of the Assigned Rights and Assumed
Obligations shall be subject to the satisfaction of the following conditions:
(a) Assignor's representations and warranties in this Agreement
shall be true and correct on the date hereof; and
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(b) Assignee shall have received: (i) this Agreement duly executed
on behalf of Assignee, and (ii) photocopies of all of the Financing Agreements
as in effect on the date hereof.
4.6 Assignor's obligation to sell, transfer, assign, grant, and convey the
Assigned Rights to Assignee on the date hereof shall be subject to the
satisfaction of the following conditions:
(a) Assignee's representations and warranties in this Agreement and
the AASI Security Agreements shall be true and correct on the date hereof;
(b) Assignor shall have received, in form and substance satisfactory
to Assignor, the Cash Purchase Price in accordance with the terms and conditions
of Section 3.1 hereof;
(c) Assignor shall have received, in form and substance satisfactory
to Assignor, each of the AASI Secured Notes, the AASI, Collateral Assignment of
Secured Debt and each of the other Assignment Agreements duly authorized,
executed and delivered by Assignee in favor of Assignee;
(d) Assignor shall have received, in form and substance satisfactory
to Assignor, an original of the Notice, Consent, Agreement, Release and Covenant
Not to ▇▇▇ by each Guarantor, and Lepercq de Neuflize in favor of Assignor, duly
authorized, executed and delivered; and
(e) Assignor shall have received, in form and substance satisfactory
to Assignor, each of the items set forth on Schedule 4.1 hereto.
5. Representations and Warranties.
5.7 Assignor hereby represents and warrants and covenants with and to
Assignee as follows:
(a) The books and records of Assignor reflect that the unpaid
principal balance of all the Obligations, plus accrued and unpaid interest, fees
and charges thereon, as of the date hereof is $13,714,408.71, which amount has
been incorporated into the Purchase Price as set forth in Section 3 hereof.
(b) Assignor is the sole legal and beneficial owner of the Assigned
Rights, free and clear of any Encumbrance, except for the security interest and
lien granted by Assignee in favor of Assignor pursuant to the AASI Security
Agreements, and the Assigned Rights are not subject to any prior sale, transfer,
assignment or participation by Assignor or any agreement to assign, convey,
transfer or participate, in whole or in part, except for the Lepercq
Participation.
(c) Notice of the assignment by Assignor to Assignee has been given
to Debtor pursuant to the Loan Agreement and to each Guarantor and Lepercq de
Neuflize pursuant to each Notice, Consent, Agreement, Release and Covenant Not
to ▇▇▇ by Guarantors and Lepercq de Neuflize.
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(d) Assignor is duly organized and existing under the laws of the
State of Texas, is in good standing under such laws, and has the full power and
authority to take, and has taken, all action necessary to execute and deliver
this Agreement and any other documents required or permitted to be executed or
delivered by it in connection with this Agreement and to fulfill its obligations
hereunder.
(e) This Agreement has been duly executed and delivered by Assignor
and constitutes the legal, valid and binding obligation of Assignor, enforceable
against Assignor in accordance with the terms hereof.
(f) Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Loan Agreement or any of the other Financing
Agreements or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Collateral or the Loan Agreement or any other
instrument or document furnished pursuant thereto except with respect to
statements, warranties or representations made by such Assignor. Assignor makes
no representation or warranty in connection with, and assumes no responsibility
with respect to, the solvency, financial condition or statements of Debtor,
Guarantors or any of their respective affiliates, or the performance or
observance by Debtor, Guarantors or any other Person, of any of its respective
obligations under the Loan Agreement or any other instrument or document
furnished in connection therewith. Assignor makes no representation or warranty
and assumes no responsibility with respect to the validity, enforceability,
effectiveness or priority of any security interest or liens in respect of any of
the Collateral.
(g) No broker, finder or other entity acting under Assignor's
authority is entitled to any broker's commission or other fee in connection with
the transactions contemplated by this Agreement for which Assignee could be
responsible.
(h) Assignor is the original "Lender" as such term is defined in the
Loan Agreement.
(i) Assignor (i) is not and has never been (A) an "insider" of
Debtor (as "insider" is defined in Bankruptcy Code ss. 101(31)) or (B) an
Affiliate of Debtor and (ii) is not, and has not been, a member of (1) any
official or unofficial committee appointed or otherwise constituted in the
Chapter 11 Case or (2) any committee relating to the Debtor formed prior to the
commencement of the Chapter 11 Case.
(j) Assignor (i) is a sophisticated assignor with respect to the
sale of the Assigned Rights and the retention of the Retained Obligations, (ii)
has adequate information concerning the business and financial condition of
Debtor and the status of the Chapter 11 Case to make an informed decision
regarding the sale of the Assigned Rights and the retention of the Retained
Obligations and (iii) has independently and without reliance upon Assignee made
its own analysis and decision to enter into this Agreement, except that Assignor
has relied upon Assignee's express representations, warranties, covenants, and
indemnities in this Agreement.
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(k) Assignor has provided to Assignee true, correct and complete
copies of (i) the Loan Agreement as in effect on the date hereof, (ii) the other
Financing Agreements as in effect on the date hereof and (iii) the Proof of
Claim as in effect and subsisting on the date hereof. As of the date hereof, to
the knowledge of Assignor, Assignor is not a party to any written agreement that
has a material impact on the Assigned Rights, other than the Financing
Agreements listed on Schedule 1.19 hereto.
(l) Upon the receipt by Assignor, in form and substance satisfactory
to Assignor, of an original of a Notice, Consent, Agreement, Release and
Covenant Not to ▇▇▇ by Debtor, duly authorized, executed and delivered, together
with an order, in form and substance satisfactory to Assignor, issued by the
Bankruptcy Court in the Chapter 11 Case, approving the execution and delivery
thereof by Debtor and the performance by Debtor thereunder, Assignor agrees (i)
to enter into a mutual release, in form and substance satisfactory to Assignor,
with respect to any claims it may have against ▇▇▇▇ ▇. ▇▇▇▇, AVAQ Group, Inc.
and Avion Holding Corporation and (ii) to permit Assignee to release each of
▇▇▇▇ ▇. ▇▇▇▇, AVAQ Group, Inc. and Avion Holding Corporation from each of their
guarantees of the Obligations,.
5.8 Assignee hereby represents and warrants and covenants with and to
Assignor as follows:
(a) Assignee is duly organized and existing under the laws of the
State of Delaware Assignee has full power and authority to take, and has taken,
all action necessary to execute and deliver this Agreement and any other
documents required or permitted to be executed or delivered by it in connection
with this Agreement, and to fulfill its obligations.
(b) This Agreement has been duly executed and delivered by Assignee
and constitutes the legal, valid and binding obligation of Assignee, enforceable
against Assignee in accordance with the terms hereof.
(c) Neither the execution and delivery of this Agreement or any of
the other Assignment Agreements, nor the consummation of the transactions herein
or therein contemplated, nor compliance with the provisions thereof or hereof
(i) has violated or will violate the Bankruptcy Code, any Federal or State
securities laws, any State corporation law, or any other law or regulation or
any order or decree of any court or governmental instrumentality in any respect,
or (ii) does or will conflict with or result in the breach of, or constitute a
default in any respect under any material mortgage, deed of trust, security
agreement, agreement or instrument to which Assignee is a party or may be bound,
other than conflicts or defaults under certain real estate leases, intellectual
property licenses and equipment leases, or (iii) does or will violate any
provision of Assignee's Certificate of Incorporation of Assignee or By-Laws.
(d) Assignee (i) is a sophisticated entity with respect to the
purchase of the Assigned Rights and the assumption of the Assumed Obligations,
(ii) is able to bear the economic risk associated with the purchase of the
Assigned Rights and the assumption of the Assumed Obligations, (iii) has
adequate information concerning the business and financial condition of Debtor
and the status of the Chapter 11 Case to make an informed decision regarding the
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purchase of the Assigned Rights and the assumption of the Assumed Obligations,
(iv) has such knowledge and experience, and has made investments of a similar
nature, so as to be aware of the risks and uncertainties inherent in the
purchase of rights and assumption of liabilities of the type contemplated in
this Agreement and (v) has independently and without reliance upon Assignor, and
based on such information as Assignee has deemed appropriate, made its own
analysis and decision to enter into this Agreement, except that Assignee has
relied upon Assignor's express representations, warranties, covenants, and
indemnities in this Agreement.
(e) No broker, finder, or other entity acting under Assignee's
authority is entitled to any broker's commission or other fee in connection with
the transactions contemplated by this Agreement for which Assignor could be
responsible.
(f) No proceedings are (i) pending against Assignee or (ii) to the
best of Assignee's knowledge, threatened against Assignee before any relevant
Governmental Authority that, in the aggregate, will materially and adversely
affect any action taken or to be taken by Assignee under this Agreement.
6. Transfer Notice.
6.9 Assignor and Assignee shall execute and deliver, and Assignee shall
promptly file or cause to be filed with the Bankruptcy Court to the extent
required by the Bankruptcy Rules, a Transfer Notice to duly reflect the
assignment of the Assigned Rights to Assignee under Bankruptcy Rule 3001(e).
6.10 Assignor (a) agrees to take such other reasonable steps as Assignee
may request to help Assignee effect and evidence the assignment of the Assigned
Rights to Assignee in the Chapter 11 Case, (b) subject to the terms and
conditions contained herein and in the Assignment Agreements, waives notice of,
and the right to object to, any filing in respect of Transfer Notice under
Bankruptcy Rule 3001(e), and (c) subject to the terms and conditions contained
herein and in the Assignment Agreements, agrees that it will not object to the
Filing of the Transfer Notice.
70 Permitted Transfers. Assignee may not sell, assign, grant a
participation in, or otherwise transfer all or any portion of the Assigned
Rights, this Agreement, its rights under this Agreement without the prior
consent of Assignor, except that, Assignee may assign all of the Assigned Rights
to another Person after Assignor has received and retained payment in full of
all of the Deferred Purchase Price Obligations.
8. Voting.
8.1 Subject to the terms and conditions contained herein and in the
Assignment Agreements, Assignee shall have the authority to exercise all voting
and other rights and remedies with respect to the Assigned Rights so long as
each of the following conditions shall have been satisfied as determined by
Assignor: (a) no "Event of Default" as such term is defined in the AASI
Collateral Assignment of Secured Debt shall exist or have occurred and be
continuing and (b) Assignor has received not less than ten (10) days prior
written notice of the intention of
-14-
Assignee to exercise any voting or other rights in the Chapter 11 Case, together
with a description in reasonable detail of the actions Assignee proposes to take
in connection therewith, all of which actions shall be subject to the prior
written consent of Assignee.
8.2 At any time that a default or an event of default exists has occurred
and is continuing under the Assignment Agreements, subject to the terms and
conditions contained herein and in the Assignment Agreements, Assignee (i) shall
not take any action with respect to the Assigned Rights and (ii) shall take (or
refrain from taking) any action with respect to the Assigned Rights in
accordance with the prior written instructions of Assignor.
9. Further Assurances. Assignor and Assignee each hereby agree to execute
and deliver such other instruments, and take such other action, as either party
may reasonably request in connection with the transactions contemplated by this
Agreement.
10. Delivery of Documents. Assignee hereby irrevocably designates,
appoints and authorizes Assignor to act as agent for Assignee for the purpose of
being the nominal secured party of record in respect of any of the Financing
Agreements recorded with any Governmental Authority with such powers to preserve
and maintain the validity of the Financing Agreements in accordance with the
terms thereof. Assignor hereby accepts such appointment in accordance with the
terms and conditions contained in this Agreement, subject to the rights and
remedies of Assignor under the AASI Security Agreements. Assignor (a) shall have
no duties or responsibilities except those expressly set forth herein, and shall
not by reason of this Agreement or any other Financing Agreement be a trustee or
fiduciary for Assignee; (b) shall not be responsible to Assignee for any
recitals, statements, representations or warranties contained in any of the
other Financing Agreements, or in any certificate or other document referred to
or provided for in, or received by any of them under, this any of the Financing
Agreements, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of any of the Financing Agreement or any other
document referred to or provided for therein or for any failure by Debtor or any
Guarantor or any other Person to perform any of its obligations hereunder or
thereunder; and (c) shall not be responsible to Assignee for any action taken or
omitted to be taken by it under any of the Financing Agreements or under any
other document or instrument referred to or provided for herein or therein or in
connection therewith, except for its own gross negligence or willful misconduct
as determined by a final non-appealable judgment of a court of competent
jurisdiction. Assignor may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it in good faith. Assignor may deem and treat the
payee of any note as the holder thereof for all purposes hereof unless and until
the assignment thereof pursuant to an agreement (if and to the extent permitted
herein) in form and substance satisfactory to Assignor shall have been delivered
to and acknowledged by Assignor.
11. Indemnification.
11.3 Assignee shall, from and after the effective date hereof, indemnify
and save Assignor harmless from and against any and all actions, suits,
proceedings, demands, assessments, judgments, claims, liabilities, losses,
costs, damages or expenses, including reasonable attorneys'
-15-
fees and legal expenses, arising out of or in any way in connection with any of
the Assigned Rights and Assumed Obligations, including, without limitation (a)
any action or inaction by Assignee with respect to the Financing Agreements,
after the effective date hereof, (b) any claims by Lepercq de Neuflize in
respect of the Lepercq Participation, or (c) the inaccuracy or breach of any of
the representations or warranties contained herein.
11.4 Assignor shall, from and after the effective date hereof, indemnify
and save Assignee harmless from and against any and all actions, suits,
proceedings, demands, assessments, judgments, claims, liabilities, losses,
costs, damages or expenses, including reasonable attorneys' fees and legal
expenses arising out of or in any way in connection with the inaccuracy or
breach of any of the representations, warranties or covenants by Assignor
contained herein,
11.5 Assignee agrees to indemnify Assignor from and save and hold harmless
against all loss, cost, damage or expense which Assignor may suffer or incur as
a result of any non-payment, claim, refund or dishonor of any checks or other
items which have been credited by Assignor to the account of Debtor with
Assignor, together with any reasonable expenses or other reasonable and
customary charges incident thereto. Any such claims against Debtor for
reimbursement may be paid to Assignor by Assignee for the account of Debtor,
upon the demand of Assignor therefor, sent in writing by Assignor to Assignee
and to Debtor at any time within sixty (60) days after the date hereof.
12. Distributions. If at any time after the date hereof, Assignor receives
a payment in respect of the Assigned Rights (a "Distribution"), Assignor shall
accept and hold the Distribution for the account and sole benefit of Assignee,
and deliver the Distribution promptly to Assignee in the same form received and,
when necessary or appropriate, with Assignor's indorsement except to the extent
prohibited under any applicable law, rule, or order; provided, that, if a
"Default" or "Event of Default" as such terms are defined in the AASI Collateral
Assignment of Secured Debt, Assignor shall have the right to retain and keep any
such Distribution and offset such Distribution against any obligations,
liabilities or indebtedness owing in respect of the AASI Security Agreements or
any of the other Assignment Agreements.
13. Withholding Tax. Assignee (a) represents and warrants to Assignor that
under applicable law and treaties no tax will be required to be withheld by
Assignee with respect to any payments to be made to Assignee under any of the
Financing Agreements and (b) agrees to comply with all applicable U.S. laws and
regulations with regard to such withholding tax exemption.
14. Disclosure.
14.6 Each of Assignor and Assignee agrees that, without the prior consent
of the other, it shall not disclose the contents of this Agreement or the
Assignment Agreements to any person, except that either of Assignor or Assignee
may make any such disclosure (a) as required to implement or enforce this
Agreement, (b) if required to do so by any law, court, or regulation, (c) to any
Governmental Authority having or asserting jurisdiction over it, (d) if its
attorneys advise it
-16-
that it has a legal obligation to do so or that failure to do so may result in
it incurring a liability to any other Person, or (e) to its professional
advisors and auditors.
14.7 Assignee agrees to comply with the requirements of the Loan Agreement
and the other Financing Agreements regarding confidentiality.
15. Notices. All notices, requests and demands to or upon the respective
parties hereto shall be deemed duly given or made if in writing and made to the
appropriate party at their address set forth below:
If to Assignee: Advanced Aerodynamics & Structures, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇ Happy, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Assignor: Congress Financial Corporation (Southwest)
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Regional Portfolio Manager
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Congress Financial Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
16. Assigns; Survival.
(a) This Agreement shall be binding upon and inure to the benefit of
the parties to this Agreement and their respective successors and assigns.
(b) All representations, warranties, covenants, indemnities and
other provisions made by the parties hereto shall be considered to have been
relied upon by such parties, shall be true and correct as of the date hereof,
and shall survive the execution, delivery, and performance of this Agreement and
the other documents required to be delivered in connection herewith.
17. Governing Law. The validity, interpretation and enforcement of this
Agreement and any dispute arising out of the relationship between the parties
hereto in connection with this Agreement, whether in contract, tort, equity or
otherwise, shall be governed by the internal laws of the State of Texas (without
giving effect to principles of conflict of laws).
18. Counterparts. This Agreement may be executed in any number of
counterparts, but all of such counterparts shall together constitute but one and
the same agreement. In making
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proof of this Agreement, it shall not be necessary to produce or account for
more than one counterpart thereof signed by each of the parties hereto.
-18-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers as of the date and year first above
written.
ASSIGNOR:
CONGRESS FINANCIAL CORPORATION
(SOUTHWEST)
By:____________________________
Title:___________________________
ASSIGNEE:
ADVANCED AERODYNAMICS & STRUCTURES, INC.
By:____________________________
Title:___________________________
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SCHEDULE 1.7
TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
List of Adversary Proceedings
1. Creditor Committee's Motion for the Entry of Order Extending the Time
to File Complaint to Determine the Validity, Priority or Extent of Liens of
Congress Financial Corporation (an agreed order is due to the court to be filed
by ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, attorney for the Creditors Committee);
2. Adversary Proceeding No. 5-01-05166-rbk styled Congress Financial
Corporation v. Realization Services, Inc.; Jenkens& ▇▇▇▇▇▇▇▇▇, a Professional
Corporation; ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇; Equity Development, Inc.; Fedsecurities,
Inc.; Bergersingerman and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Incorporated; ▇▇▇▇ ▇▇▇; ▇▇▇▇ ▇▇▇;
XYZ Corporation; ABC Partnership (dismissed by Notice of Dismissal entered on
November 15, 2001);
3. Adversary Proceeding No. 5-01-05156-rbk styled Textron Financial Corp.
vs. ASI-Aero Services, Inc., ▇▇▇▇▇▇ Flying Service, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, and Congress
Financial Corporation (Southwest); and,
4. Any proceedings identified on the current docket sheets of the Chapter
11 Case, including any proceedings identified on or referenced in the attached
docket sheet of the Chapter 11 Case, downloaded on January 28, 2002, from the
internet website (▇▇▇.▇▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇) of the United States Bankruptcy Court
for the Western District of Texas (the "Bankruptcy Court") through the
Bankruptcy Court's Case Management/ Electronic Case Filing System.
-i-
SCHEDULE 1.19
TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
List of Financing Agreements
1. Loan and Security Agreement, dated May 15, 1995, between Assignor and
Debtor, as amended by Amendment No. 1 to Loan and Security Agreement, dated as
of May 15, 1995, Amendment No. 2 to Loan and Security Agreement, dated June 18,
1996, Amendment No. 3 to Loan and Security Agreement, dated as of November 14,
1996, Amendment No. 4 to Loan and Security Agreement, dated as of April 14,
1997, Amendment No. 5 to Loan and Security Agreement, dated as of September 24,
1997, Amendment No. 6 to Loan and Security Agreement, dated as of November 14,
1997, Amendment No. 7 to Loan and Security Agreement, dated as of December 17,
1997, Amendment No. 8 to Loan and Security Agreement, dated as of February 23,
1998, Amendment No. 9 to Loan and Security Agreement, dated as of March 13,
1998, Amendment No. 10 to Loan and Security Agreement, dated August 13, 1998,
Amendment No. 11 to Loan and Security Agreement, dated as of October 30, 1998,
Amendment No. 12 to Loan and Security Agreement, dated April 19, 1999, Amendment
No. 13 to Loan and Security Agreement, dated September 14, 1999, Amendment No.
14 to Loan and Security Agreement, dated November 15, 1999, Amendment No. 15 to
Loan and Security Agreement, dated as of March 12, 2001, Amendment No. 16 to
Loan and Security Agreement, dated as June 11, 2001, Forbearance Agreement,
dated July 20, 2001, and the Ratification and Amendment Agreement, dated as of
August 3, 2001;
2. Third Amended and Restated Term Promissory Note A, dated November 15,
1999, by Debtor payable to the order of Assignor in the original principal
amount of $1,100,000;
3. Fourth Amended and Restated Promissory Note B, dated April 19, 1999, by
Debtor payable to the order of Assignor in the original principal amount of
$4,000,000;
4. Aircraft Chattel Mortgage and Security Agreement, dated as of May 15,
1995, by and between Debtor and Assignor;
5. Supplemental Schedule #3, dated as of June 7, 1995, by ▇▇▇▇▇▇ with
respect to Aircraft Chattel Mortgage, through and including Supplemental
Schedule #79, dated as of June 27, 2001.
6. Trademark Collateral Assignment and Security Agreement, dated May 15,
1995, by and between Assignor and Debtor;
7. Leasehold Deed of Trust, Security Agreement, and Financing Statement,
dated as of May 15, 1995, by Debtor in favor of Assignor, as amended by
Supplement No. 1 to Leasehold Deed of Trust, dated as of June 18, 1996,
Supplement No. 2 to Leasehold Deed of Trust, dated as of November 14, 1997,
Supplement No. 3 to Leasehold Deed of Trust, dated as of February 27, 1998,
Supplement No. 4 to Leasehold Deed of Trust, dated as of August 13, 1998,
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Supplement No. 5 to Leasehold Deed of Trust, dated as of April 19, 1999,
Supplement No. 6 to Leasehold Deed of Trust, dated as of September 13, 1999,
Supplement No. 7 to Leasehold Deed of Trust, dated as of November 15, 1999, and
Supplement No. 8 to Leasehold Deed of Trust, dated as of June 11, 2001;
8. Landlord Estoppel and Access Agreement, dated April 29, 1982, by and
among Kerrville-▇▇▇▇ County Joint Airport Board, City of Kerrville, County of
▇▇▇▇, and Assignor, relating to property described in a Lease, as amended;
9. Landlord Estoppel and Access Agreement, dated January 10, 1963, by and
among Kerrville-▇▇▇▇ County Joint Airport Board, City of Kerrville, County of
▇▇▇▇, and Assignor, relating to property described in a Lease, as amended;
10. Landlord Estoppel and Access Agreement, dated January 23, 1963, by and
among Kerrville-▇▇▇▇ County Joint Airport Board, City of Kerrville, County of
▇▇▇▇, and Assignor, relating to property described in a Lease, as amended;
11. In lieu financing statement filed by Assignor against Debtor with
respect to pre-effective date UCC Financing Statements;
12. Subordination Agreement, dated as of November 14, 1996, by and between
Assignor and Lepercq Group LTD., as amended by Amendment No. 1 to Subordination
Agreement, dated as of March 12, 2001, by and among Assignor, Lepercq Group
LTD., and Lepercq, De Neuflize & Co. Incorporated;
13. Subordination Agreement, dated as of May 15, 1995, by and among
Assignor, Groupe MSC, S.A., and ▇▇▇▇▇▇ Holding Corporation, as amended;
14. Blocked Account Agreement, dated May 15, 1995, by and among Assignor,
Debtor and Security Bank and Trust;
15. Guarantee, dated as of April 19, 1999, by AVAQ Group, Inc. in favor of
Assignor;
16. Pledge and Security Agreement, dated as of July 18, 2001, by AVAQ
Group, Inc., in favor of Lender in respect of the shares of Capital Stock of the
Debtor;
17. Guarantee, dated as of May 15, 1995, by Avion Holding Corporation in
favor of Assignor;
18. General Security Agreement, dated May 15, 1995, by Avion Holding
Corporation in favor of Assignor;
19. In lieu financing statement filed by Assignor against Avion Holding
Corporation with respect to pre-effective date UCC Financing Statements;
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20. Guarantee, dated as of June 11, 2001, by ▇▇▇▇ ▇. ▇▇▇▇ in favor of
Assignor;
21. Reaffirmation and Amendment of Guarantor Documents, dated as of July
27, 2001, by and between Avaq Group, Inc. and Assignor;
22. Reaffirmation and Amendment of Guarantor Documents, dated as of July
27, 2001, by and between ▇▇▇▇ ▇. ▇▇▇▇ and Congress;
23. Reaffirmation and Amendment of Guarantor Documents, dated as of July
27, 2001, by and between Avion Holding Corporation and Congress; and
24. Proof of Claim, together with the Proof of Claim Rider, filed on
November 9, 2001, by Congress with the Bankruptcy Court.
25. Final Order Pursuant to Section 364(c) of The Bankruptcy Code And Rule
4001 of The Federal Rules of Bankruptcy Procedure Authorizing Debtor to Obtain
Post-petition Financing, Granting Senior Liens and Priority Administrative
Expense Status, Modifying the Automatic Stay and Authorizing Debtor to Enter
into Agreements with Congress Financial Corporation the First Interim Financing
Order, the Second Interim Financing Order, the Permanent Financing Order and
such other orders relating thereto or authorizing the granting of credit by
Assignor to Debtor on an emergency, interim or permanent basis pursuant to
Section 364 of the Bankruptcy Code as may be issued or entered by the Bankruptcy
Court in the Chapter 11 Case, including, without limitation, the right to make
advances pursuant to a Budget, including, without limitation, the Budget
approved by the Bankruptcy Court on January 16, 2002.
26. The agreements, documents or instruments described in the Financing
Agreement Document Index attached hereto.
-iii-
INDEX
TO
FINANCING AGREEMENTS
-iv-
1. Term Promissory Note A, dated May 15, 1995, by ▇▇▇▇▇▇ Aircraft
Corporation ("▇▇▇▇▇▇") payable to Congress Financial Corporation (Southwest)
("Congress") in the original principal amount of $1,200,000;
2. Term Promissory Note B by ▇▇▇▇▇▇ payable to Congress in the original
principal amount of $2,200,000;
3. UCC-1 Financing Statements between Congress, as secured party, and
▇▇▇▇▇▇ as debtor;
4. Notice to FAA of Security Interest in FAA Type Certificate, dated May
15, 1995, by ▇▇▇▇▇▇;
5. Special Power of Attorney (FAA Type Certificate), dated May 12, 1995,
by ▇▇▇▇▇▇ in favor of Congress;
6. Original of FAA Type Certificate Number 2A3;
7. Bailee Letter regarding FAA Type Certificate Number 2A3, dated May 15,
1995, by Congress;
8. Trademark Collateral Assignment and Security Agreement, dated May 15,
1995, by and between ▇▇▇▇▇▇ and Congress;
9. Special Power of Attorney (Trademark), dated May 15, 1995, by ▇▇▇▇▇▇ in
favor of Congress;
10. City-County ▇▇▇▇▇▇ Airport Lease - 1982, dated April 29, 1982, by and
among ▇▇▇▇ County- City of Kerrville Joint Airport Board (the "Board"), City of
Kerrville (the "City"), Kerrville County (the "County") and ▇▇▇▇▇▇, as amended;
11. Notice to Board, City and County, dated May 15, 1995, by ▇▇▇▇▇▇, with
respect to April 29, 1982 Lease re: Leasehold Deed of Trust;
12. Lease, dated January 10, 1963, by and among the Board, the City, the
County and ▇▇▇▇▇▇, as amended;
13. Notice to Board, City and County, dated may 15, 1995, by ▇▇▇▇▇▇, with
respect to January 10, 1963 Lease regarding Leasehold Deed of Trust;
14. Lease, dated January 23, 1963, by and between Notice to ▇▇▇▇ Economic
Development Foundation, Inc. ("KEDF") and ▇▇▇▇▇▇, as amended;
15. Notice, dated May 15, 1995, by ▇▇▇▇▇▇ to KEDF with respect to January
23, 1963 Lease re: Leasehold Deed of Trust;
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16. UCC Fixture Filing, dated May 22, 1995, between Congress, as secured
party, and ▇▇▇▇▇▇, as debtor, with Rider, for filing in ▇▇▇▇ County, Texas;
17. UCC-1 Financing Statements between Congress, as secured party, and
▇▇▇▇▇▇ Holding, as debtor;
18. Allonge Indorsement, dated May 15, 1995, by ▇▇▇▇▇▇ Holding affixed to
original Amended and Restated Subordinated Promissory Note by ▇▇▇▇▇▇ payable to
▇▇▇▇▇▇ Holding in the principal amount of $1,150,664.05;
19. Subordinated Agreement, dated May 15, 1995, by and among Congress,
Groupe MSC, S.A., Euralair, S.A. and ▇▇▇▇▇▇ Holding;
20. Subordinated Promissory Note, dated May 15, 1995, by ▇▇▇▇▇▇ payable to
Groupe MSC S.A. in the original principal amount of $1,500,000;
21. Subordinated Promissory Note, dated May 15, 1995, by ▇▇▇▇▇▇ payable to
Euralair, S.A. in the original principal amount of $1,500,000;
22. Amended and Restated Subordinated Promissory Note, dated May 15, 1995,
by ▇▇▇▇▇▇ payable to ▇▇▇▇▇▇ Holding Corporation in the original principal amount
of $1,150,664.05;
23. Release Agreement, dated May 15, 1995, by and among ▇▇▇▇▇▇, ▇▇▇▇▇▇
Holding, Euralair, S.A., Euralair International S.A., Groupe MSC, S.A., and
Lepercq Groupe Ltd. ("Lepercq Group");
24. Letter, dated May 15, 1995, regarding Release Agreement and signature
page of Lepercq Group;
25. UCC-3 Termination Statements by Lepercq Group;
26. Discharge of Deed of Trust, Security Agreement and Financing Statement
by Lepercq Group filed with the Recorder of Deeds of ▇▇▇▇ County, Texas
27. Copy of Promissory Note, dated February 28, 1995, by ▇▇▇▇▇▇ payable to
Lepercq Group in the original principal amount of $8,975,180.05 marked
"cancelled" or "paid in full";
28. Copy of Promissory Note, dated April 24, 1995, by ▇▇▇▇▇▇ payable to
Lepercq Group in the original principal amount of $500,000 marked "cancelled" or
"paid in full";
29. Landlord Estoppel and Access Agreement, dated July 10, 1995, by Board,
City and County in favor of Congress for Parcel ▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇;
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30. Landlord Estoppel and Access Agreement dated July 10, 1995, by Board,
City and County in favor of Congress for Parcel ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇;
31. Landlord Estoppel and Access Agreement, dated July 10, 1995, by KEDF
in favor of Congress for Parcel ▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇;
32. Secretary's Certificate of ▇▇▇▇▇▇, dated May 15, 1995, certifying (a)
By-Laws; (b) Certificate of Incorporation; and (c) Directors' Resolutions;
33. Secretary's Certificate of ▇▇▇▇▇▇ Holding, dated May 15, 1995,
certifying (a) By-Laws; (b) Certificate of Incorporation; (c) Directors'
Resolutions; and Sole Shareholder Resolutions;
34. Copy of Certificate of Incorporation of ▇▇▇▇▇▇ certified by New Jersey
Secretary of State as of April 11, 1995;
35. Copy of Certificate of Incorporation of ▇▇▇▇▇▇ Holding certified by
Delaware Secretary of State as of November 28, 1988;
36. Certificate of Authority to do business in the state of Texas for
▇▇▇▇▇▇;
37. Certificate of Authority to do business in the state of New Jersey for
▇▇▇▇▇▇;
38. Certificate of Authority to do business in the state of Delaware for
▇▇▇▇▇▇ Holding;
39. FAA Title and Lien Searches dated April 13, 1995;
40. Certificate of Insurance for Hull Insurance, together with Lender's
Loss Payable Endorsement in favor of Congress, dated as of May 15, 1995;
41. Letter, dated May 12, 1995, regarding subrogation clause for loss
payable endorsement to hull insurance, by Chubb & Son, Inc.;
42. Certificate of Insurance for Property Insurance, together with
Lender's Loss Payable Endorsement in favor of Congress, and Certificate of
Insurance for Automobile Insurance, dated May 12, 1995;
43. Letter, dated May 12, 1995, regarding subrogation clause for loss
payable endorsement to property insurance;
44. Pay Proceeds Authorization Letter dated May 15, 1995, by ▇▇▇▇▇▇ to
Congress;
45. Instruction Letter to Accountants, dated May 15, 1995, by ▇▇▇▇▇▇;
46. Advisory Letter, dated April 25, 1995, from FAA with respect to "Type
Certificates";
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47. letter agreement, dated May 15, 1995, by and between ▇▇▇▇▇▇ and
Congress regarding Termination of French Loan Documents and Liens;
48. Waiver, dated May 15, 1995, by and between ▇▇▇▇▇▇ and Congress
regarding Indebtedness and Liens under Loan Agreement regarding French Loan
Documents and Liens;
49. Officer's Certificate, dated May 15, 1995, by ▇▇▇▇▇▇ regarding Prior
Names;
50. Escrow Letter, dated May 10, 1995, by and among ▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇▇▇▇
& ▇▇▇▇▇▇ and Congress regarding Escrow Documents;
51. letter agreement, dated May 15, 1995, by and between ▇▇▇▇▇▇ & ▇▇▇▇▇
and Congress regarding Receipt of Escrow Documents from ▇▇▇▇▇▇ & ▇▇▇▇▇;
52. letter, dated May 15, 1995, by Congress regarding Release of Escrow
for Lepercq Release Instruments;
53. Letter, dated May 3, 1995, by ▇▇▇▇▇▇ regarding Federal, State and
Franchise tax return filing extensions;
54. Post-Closing Items Letter, dated May 15, 1995, by and between Congress
and ▇▇▇▇▇▇.
55. Junior Participation Agreement, dated April 29, 1999, by and between
Congress and Lepercq.
56. Amendment No.1 to Participation Agreement, dated as of March 12, 2001,
between Congress and Lepercq de Neuflize & Co. Incorporated ("Lepercq");
57. Junior Participation Agreement, dated July 23, 1998, by and between
Congress and AVAQ ▇▇▇▇▇▇, Inc. ("AVAQ");
58. Amendment to Junior Participation Agreement, dated April 19, 1999, by
and between Congress and AVAQ;
59. Termination of Junior Participation Agreement, dated as of March 12,
2001, by and between Congress and AVAQ;
60. Revolving Demand Subordinated Note, dated as of April 14, 1997, by
▇▇▇▇▇▇ in favor of AVAQ Partners, Inc. in the principal amount of $750,000.
61. Subordination Agreement, dated as of April 14, 1997, by and between
Congress and AVAQ Partners, Inc.
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62. Secretary's Certificate of Directors' Resolutions and Incumbency
regarding Amendment Nos. 7 and 8 to Loan and Security Agreement, dated February
20, 1998, by ▇▇▇▇▇▇;
63. Vice President's Certificates of Directors' Resolutions and Incumbency
Regarding Amendment, No. 6, to Loan and Security Agreement, dated as of November
17, 1998, by ▇▇▇▇▇▇;
64. Unanimous Written Consent of Directors in Lieu of Special Meeting of
the Board of Directors of ▇▇▇▇▇▇ Holding, dated February 20, 1998;
65. Unanimous Written Consent of Directors In Lieu of Special Meeting of
the Board of Directors of ▇▇▇▇▇▇ Holding Corporation, dated November 17, 1997;
66. First Amendment to Investment Agreement, Security Holder Agreement and
Pledge Agreement, dated December 17, 1997, by and among ▇▇▇▇▇▇, ▇▇▇▇▇▇ Holding,
Groupe MSC, S.A., Euralair, S.A., the holders of ▇▇▇▇▇▇ Holding common stock,
AVAQ, Lepercq Group, Ltd. and Lepercq Capital Management;
67. Loan Contract, dated May 17, 1995, by and between Societe de Banque
Occidentale and ▇▇▇▇▇▇;
68. Second Amendment to Investment and Interim Agreement, dated March
1998, by and among ▇▇▇▇▇▇, ▇▇▇▇▇▇ Holding, Groupe MSC, S.A., Euralair, S.A., the
holders of ▇▇▇▇▇▇ Holding common stock, AVAQ, Lepercq Group, Ltd and Lepercq
Capital Management;
69. Amendment No. 2 to Subordination Agreement, dated as of March 12,
2001, by and among Congress, Euralair, S.A., Groupe MSC, S.A., and ▇▇▇▇▇▇
Holding;
70. Agreement to Restructure the Lepercq Revolving Demand Subordinated
Note, dated as March 12, 2001, by and among the Lepercq Group, Ltd., ▇▇▇▇▇▇,
AVAQ Group, Inc and Lepercq;
71. Amendment to Shareholder Notes, dated as of March 12, 2001, by and
between ▇▇▇▇▇▇, AVAQ Group, Inc., Groupe MSC, S.A. and Euralair, S.A.;
72. Revolving Demand Subordinated Note, as of November 14, 1996, by ▇▇▇▇▇▇
in favor of Lepercq Group Ltd. marked as cancelled;
73. Payment of Fee under the Fourth Amendment to the Investment Agreement,
dated March 12, 2001, by and between ▇▇▇▇▇▇ and Lepercq Capital Management, Inc.
74. Waiver of Exercise of Warrants under the Investment Agreement, March
12, 2001, by and between ▇▇▇▇▇▇ and AVAQ Group, Inc.;
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75. letter agreement, dated March 12, 2001, by and between Lepercq and
Lepercq Group, Ltd.
76. Assignment and Assumption Agreement, dated March 12, 2001, by and
between Lepercq Group, Ltd., and Lepercq;
77. Mutual General Release, dated as of March 12, 2001, by and among
▇▇▇▇▇▇, ▇▇▇▇▇▇ Holding, Groupe MSC, S.A., Euralair, S.A., Lepercq Group, Ltd,
Lepercq Capital Management, Inc., Lepercq, and AVAQ Group Inc.
78. Pledge Agreement, dated March 12, 2001, by and among ▇▇▇▇▇▇, AVAQ
Group, Inc., and Lepercq;
79. Escrow Agreement, dated March 12, 2001, by and among ▇▇▇▇▇▇, AVAQ
Group, Inc., and Lepercq;
80. Certificate of Ownership and Merger of Avion Holding Corporation,
dated March , 1999;
81. Unanimous Written Consent of the Board of Directors and Shareholders
of ▇▇▇▇▇▇ Aircraft Corporation, dated as of March 12, 2001, by the members of
the Board of Directors of ▇▇▇▇▇▇;
82. Affidavit of Lost Certificate and Indemnity Agreement by ▇▇▇▇▇▇
Holding;
83. Officer's Certificate, dated June 17, 1996, by Assistant Secretary of
▇▇▇▇▇▇ Holding;
84. Officer's Certificate, dated June 17, 1996, by Assistant Secretary of
▇▇▇▇▇▇;
85. Second Extension of Termination of Financing Agreements, dated May 25,
2001, by Congress.
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SCHEDULE 3.1
TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
Wire Transfer Instructions
Wire to: JPMorgan Chase
New York, New York
ABA No. 021 000 021
For credit to: Congress Financial Corporation (Southwest)
Account No. ▇▇▇-▇▇▇-▇▇▇
Re: ▇▇▇▇▇▇ Aircraft Corporation
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SCHEDULE 4.1
TO
ASSIGNMENT AND ASSUMPTION AGREEMENT
List of Additional Conditions Precedent
1. Assignors shall have received, in form and substance satisfactory to
Assignor, all releases, agreements and such other documents as Assignor may
request to evidence and effectuate the requirement that Assignor have a first
priority perfected interest in and to all of the Deferred Purchase Price
Collateral, duly authorized, executed and delivered by it or each of them.
2. All requisite corporate action and proceedings in connection with this
Agreement and the other AASI Security Agreements shall be satisfactory in form
and substance to Assignor, and Assignor shall have received all information and
copies of all documents, including records of requisite corporate action and
proceedings which Assignor may have requested in connection therewith, such
documents were requested by Assignor or its counsel to be certified by
appropriate corporate officers or Governmental Authority (and including a copy
of the certificate of incorporation of Assignee certified by the Secretary of
State (or equivalent Governmental Authority) which shall set forth the same
complete corporate name of Assignee as is set forth herein and such documents as
shall set forth the organizational identification number of Assignees, if one is
issued in its jurisdiction of incorporation).
4. Assignors shall have received, in form and substance satisfactory to
Assignor, all consents, waivers, acknowledgments and other agreements from third
persons which Assignor may deem necessary or desirable in order to permit,
protect and perfect its security interests in and liens upon the Deferred
Purchase Price Collateral or to effectuate the provisions or purposes of this
Agreement and the other AASI Security Agreements.
5. Assignor shall have received evidence, in form and substance
satisfactory to Assignor, that Assignor has a valid perfected first priority
security interest in all of the Deferred Purchase Price Collateral.
6. Assignor shall have received and reviewed lien and judgement search
results for the jurisdiction of incorporation or organization of Assignee, the
jurisdiction of the chief executive office of Assignee and all jurisdictions in
which assets of Assignee are located, which search results shall be in form and
substance satisfactory to Assignor.
7. All actions and proceedings required by the Assignment Agreements,
applicable law or regulation have been taken and the transactions required
thereunder have been duly and validly taken and consummated.
8. No court of competent jurisdiction has issued any injunction,
restraining order or other order which prohibits consummation of the
transactions described in the Assignment Agreements and no governmental or other
action or proceeding has been threatened or commenced, seeking any injunction,
restraining order or other order which seeks to void or otherwise modify the
transactions described in the Assignment Agreements.
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9. Assignor shall have received, in form and substance satisfactory to
Assignor, such opinion letters of counsel to Assignee with respect to the AASI
Security Agreements, the Assignment Agreements and such other matters as
Assignor may request.
10. Assignor shall have received, in form and substance satisfactory to
Assignor, evidence that the Transfer for Security Notice shall have been duly
filed with the Bankruptcy Court.
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