AMENDMENT NO. 3 TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT NO. 3 TO ASSET PURCHASE AGREEMENT, dated as of the 15th day
of December, 2006 (the "Amendment") by the below executing parties, hereby
amends the Asset Purchase Agreement (as amended from time to time, the
"Agreement") dated as of July 14, 2006, entered into by and among Tactical Air
Defense Services, Inc. ("Parent"), Genesis Aviation Acquisition Inc., Resource
Financial Aviation Holdings Inc., and OneSource Aviation Acquisition Inc. each a
Nevada corporation and wholly owned subsidiary of Parent (each a "Subsidiary",
the Subsidiaries and Parent are each sometimes referred to herein as a
"Purchaser") as Purchasers and AeroGroup Incorporated, a Utah corporation
("AeroGroup") and its wholly owned subsidiaries, Genesis Acquisition, Inc.,
Resource Financial Holdings Acquisition, Inc., and OneSource Acquisition, Inc.,
each a Delaware corporation, as sellers (each individually a "Seller
Subsidiary", the Seller Subsidiaries and AeroGroup each being sometimes referred
to herein as a "Seller"), which Agreement was amended by the parties on August
22, 2006 ("Amendment No. 1"), and on October 3, 2006 ("Amendment No. 2"). All
capitalized terms not otherwise defined herein shall have the meanings set forth
in the Agreement.
WHEREAS, the parties originally agreed that the Parent would assume
certain indebtedness of AeroGroup and warrants to purchase common stock of
AeroGroup as provided in Section 1(d) of the Agreement as a condition to
closing; and
WHEREAS, AeroGroup has, since the date of the Agreement raised additional
capital in which financing has been consummated in October of 2006 (the "October
Financing"), which financing was necessary for the operations of AeroGroup and
for AeroGroup to negotiate certain contracts and develop its aircraft parts and
certification program, all of which are or will be necessary in connection with
the business of the Purchasers; and
WHEREAS, AeroGroup's auditors and creditors have discovered and verified
additional indebtedness owed to certain creditors; and
WHEREAS, the Parent has agreed, as a condition to closing of the
acquisition relating to the Agreement, to assume certain indebtedness of
AeroGroup; and
WHEREAS, the Parent has agreed to assume the indebtedness owed the
creditors and warrant holders of AeroGroup as specifically provided in the
Agreement and to assume all of the obligations of AeroGroup to issue shares upon
conversion therefore without requiring the convertible note holders or warrant
holders to consent thereto;
WHEREAS, the Purchasers each believe that increasing the amount of assumed
liabilities and assumed Investor Warrants as set forth hereto, is fair and
reasonable consideration in light of the value of the assets being acquired by
AeroGroup; and
NOW THEREFORE, it is agreed:
1. Section 1.(d)(ii) of the Agreement is hereby amended to correct a
typographical error and is amended and revised to be and read as follows:
"(ii) Secured Xxxxxxx Debt. The convertible debt in
the initial amount of $1,100,000 (the "Secured Xxxxxxx Note") owed to
Xxxx X. Xxxxxxx ("Xxxxxxx"), which shall be secured by a first priority
lien on the assets of the Purchasers and becoming convertible into
Common Stock at a conversion price of $.50 of principal and interest
converted for each share of Common Stock."
2. Schedule 1(d)(iii) reflecting all of the Investor Notes and
Schedule 1(d)(iv) reflecting all of the Investor Warrants, are and shall hereby
by amended and restated in their entirety in the form as annexed hereto as
Exhibit A and as reflected on the Current Report in Form 8-K relating to the
transaction. Purchasers hereby ratify and accept the issuances by AeroGroup of
the notes and warrants in connection with the October Financing.
3. The Purchasers and Sellers hereby each waive any requirement
incumbent upon one another that note holders and warrant holders counter execute
any form of Agreement of Assumption. Additionally, Section 8(f) is hereby
amended and restated in its entirety to be and read:
(f) An Agreement of Assumption shall have been executed by Parent in
favor of all of the convertible note holders and warrant holders described in
Section 1(d).
In lieu thereof, the Parent shall issue to each of the note holders and
warrant holders set forth in the Agreement and Schedules thereto, an Agreement
of Assumption agreeing to assume the indebtedness of AeroGroup, to be bound by
said promissory notes or warrants, and agreeing to issue, upon conversion
thereof or exercise of the warrants, such number of shares of Common Stock as is
set forth in the Agreement of Assumption which, for the avoidance of doubt,
shall be as set forth in the Agreement (including the Schedules thereto), as
amended to date.
4. The Agreement is and shall remain and continue in full force and
effect in all other respects, without prejudice.
5. This Amendment may be signed in one or more counterparts.
[Signature Pages Follow]
COUNTERPART SIGNATURE PAGE TO AMENDMENT TO ASSET PURCHASE AGREEMENT, DATED AS OF
DECEMBER 15, 2006
IN WITNESS WHEREOF, the parties hereto, intending to be bound
hereby, have caused this Amendment to Asset Purchase Agreement to be executed
the day and year first above written.
SELLERS:
AEROGROUP INCORPORATED
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
GENESIS ACQUISITION, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
RESOURCE FINANCIAL HOLDINGS
ACQUISITION, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
ONESOURCE ACQUISITION, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: President
COUNTERPART SIGNATURE PAGE TO AMENDMENT TO ASSET PURCHASE AGREEMENT, DATED AS OF
DECEMBER 15, 2006.
IN WITNESS WHEREOF, the parties hereto, intending to be bound
hereby, have caused this Amendment to Asset Purchase Agreement to be executed
the day and year first above written.
PURCHASERS:
TACTICAL AIR DEFENSE SERVICES, INC.
By: /s/ Xxxx Xxxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxx Xxxxxx
Title: Vice President, Chief Financial
Officer
GENESIS AVIATION ACQUISITION INC.
By: /s/ Xxxx Xxxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxx Xxxxxx
Title: Vice President, Chief Financial
Officer
RESOURCE FINANCIAL AVIATION
HOLDINGS INC.
By: /s/ Xxxx Xxxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxx Xxxxxx
Title: Vice President, Chief Financial
Officer
ONESOURCE AVIATION
ACQUISITION INC.
By: /s/ Xxxx Xxxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxx Xxxxxx
Title: Vice President, Chief Financial
Officer
Consented and agreed to on behalf of the
foregoing entities:
/s/ Xxxxxx Xxxxxxxx
------------------------------------------------
Xxxxxx Xxxxxxxx
CONSENT TO ASSIGNMENT
This Consent is given by International Tactical Training Center, Inc.
("Sublandlord") to AeroGroup, Inc. ("Subtenant") and Tactical Air Defense
Services, Inc. (the "Assignee") this ___ day of November, 2006.
RECITALS
WHEREAS, Sublandlord is the tenant in a lease with Xxxxxxx County Airport
dated May 5, 2006 (the "Master Ground Lease") covering 36,598 sq. ft. of land at
the Xxxxxxx County Airport (the "Leased Land");
WHEREAS, Sublandlord is also the tenant in a lease with the Xxxxxxx County
Airport dated April 15, 2006 (the "Master Office Lease" and together with the
Maser Ground Lease, the "Master Leases") covering 15,397 square feet of space in
a building known as Building No. 110 and adjacent land located at 0000 Xxxxxxx
Xxxxx, Xxxxxxx, Xxxxx (the "Office Space" and together with the Leased Land, the
"Premises");
WHEREAS, Sublandlord has sublet the Premises to Subtenant pursuant to a
sublease dated May 8, 2006 (the "Sublease");
WHEREAS, Subtenant desires to assign the sublease to the Assignee and the
Assignee wishes to assume the Sublease; and
WHEREAS, the terms of the Sublease require the consent of the Sublandlord
for the assignment of the sublease to the Assignee and the Sublandlord has
agreed to grant such consent.
NOW, THEREFORE, the Sublandlord consents as follows:
1. Sublandlord hereby consents to the assignment of the Sublease,
which assignment shall be in substantially the form of attached hereto as
Exhibit A (the "Assignment").
2. Sublandlord hereby releases the Subtenant from all liability
arising from or relating to the Sublease which is based upon facts and
circumstances first arising after the effective date of the Assignment.
Sublandlord agrees it shall look solely to the Assignee for any damages, losses,
liabilities, obligations, costs and expenses ("Losses") arising pursuant to the
Sublease based upon facts and circumstances first arising after the effective
date of the Assignment, including without limitation, Losses arising from all
actions, suits, proceedings, demands, assessments, judgments, settlements and
compromises relating thereto.
3. Sublandlord's consent hereunder to the Assignment shall not
constitute a waiver of Sublandlord's right to consent to any further assignment
of the Sublease.
4. To Sublandlord's knowledge, as of the date hereof Subtenant is
not in default nor is there any state of facts, which with the passage of time
could ripen into default in the performance of Sublandlord's obligations under
the Sublease.
5. As of the date hereof, Sublandlord is not in default nor is there
any state of facts, which with the passage of time could ripen into default in
the performance of Sublandlord's obligations under the Master Leases.
6. To the Sublandlord's knowledge, as of the date hereof, the Master
Landlords are not in default nor is there any state of facts, which with the
passage of time could ripen into default in the performance of the Master
Landlords' respective obligations under each of the Master Leases.
7. This Consent is given to Subtenant in connection with a proposed
assignment of Subtenant's interest in the Sublease to Assignee, with the
understanding that Assignee will rely hereon in connection with such
transaction.
8. The person or persons executing this Consent are authorized by
the respective party to do so and the execution hereof is the binding act of the
Sublandlord and Subtenant.
9. This Consent may be executed in several counterparts, and/or by
execution of counterpart signature pages which may be attached to one or more
counterparts, and all counterparts so executed shall constitute one agreement
binding on all parties hereto, notwithstanding that all of the parties are not
signatory to the original or to the same counterpart.
In witness whereof the parties set their hands and seals the day and year
first above written.
SUBLANDLORD: SUBTENANT:
International Tactical Training Center, Inc. AeroGroup, Inc.
By: By:
---------------------------------------- -----------------------------
Name: Name:
Title: Title:
EXHIBIT A
ASSIGNMENT AND ASSUMPTION OF SUBLEASE
THIS ASSIGNMENT AND ASSUMPTION of sublease is entered into between
AeroGroup, Inc. ("Assignor") and Tactical Air Defense Services, Inc. (the
"Assignee") this ___ day of November, 2006.
WHEREAS, Assignor is the subtenant in a sublease dated May 8, 2006 (the
"Sublease") covering 36,598 sq. ft. of land at the Xxxxxxx County Airport and
15,397 square feet of space in a building known as Building No. 110 and adjacent
land located at 0000 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxx; and
WHEREAS, Assignor wishes to assign and Assignee wishes to assume the
Sublease.
NOW THEREFORE, in consideration of one and more dollars and other good and
valuable consideration the receipt of which is hereby acknowledged, the parties
agree as follows:
1. Assignor hereby transfers, assigns and conveys to Assignor the
subleasehold estate created by the sublease, together with all of the right,
title and interest of Assignor in, to and under the Sublease.
2. Assignee assumes and agrees to be bound by and perform all covenants,
conditions, obligations and duties of Assignor under the Sublease, arising from
and after the effective date of this Sublease Assignment and Assumption
Agreement.
3. This Assignment and Assumption Agreement may be executed in several
counterparts, and/or by execution of counterpart signature pages which may be
attached to one or more counterparts, and all counterparts so executed shall
constitute one agreement binding on all parties hereto, notwithstanding that all
of the parties are not signatory to the original or to the same counterpart.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this sublease Assignment as of the date first above written.
ASSIGNOR: ASSIGNEE:
AeroGroup, Inc. Tactical Air Defense Services, Inc.
By: By:
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Name: Name:
Title: Title:
