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Exhibit 10.66
FORM OF
AMENDED AND RESTATED
EXCHANGEABLE PROMISSORY NOTE
Dated as of July __, 2000 $__________
FOR VALUE RECEIVED, Aviation Exteriors ____________, Inc., a _________
corporation (the "Company"), promises to pay to the order of
____________________________ ("Holder") the sum of _____________________ and
No/100 Dollars ($___________) plus interest at the rate of ten percent (10%) per
annum accruing from the date hereof on the unpaid indebtedness hereof until
finally paid. Said principal and accrued interest shall be paid by the Company
in lawful money of the United States of America, at the Company's offices in
Dallas, Texas, or at such other place as may be designated in writing by the
Company, to the Holder as follows:
(a) Commencing on August 1, 2000, accrued interest hereunder shall be
payable in monthly installments on the first day of each calendar month until
maturity; and
(b) All outstanding principal and unpaid accrued interest shall be
finally due and payable on January 31, 2001.
1. Prepayment. The principal or interest hereunder may be prepaid at any
time without penalty or premium; provided, however, the Company shall provide at
least (10) days prior written notice to the Holder of such prepayment, and such
Holder may elect to exercise its exchange rights hereunder with respect to the
indebtedness to be prepaid prior to receipt of such prepayment.
2. Default. In the event of (i) any failure by the Company to make any
payment of principal or interest hereunder within ten (10) days after written
notice of default in such payment from the holder has been received by the
Company, (ii) the filing of a petition by or against the Company under the
provisions of any state insolvency law or under the provisions of the Federal
Bankruptcy Act (for bankruptcy or reorganization or other relief), or (iii) any
assignment by the Company for the benefit of its creditors, the Holder may, at
such Holder's option, declare the entire unpaid balance hereof immediately due
and payable and exercise any of its rights and remedies under applicable law.
Any delay on the part of the Holder in exercising any rights hereunder shall not
operate as a waiver of said rights; acceptance of any payment after its due date
shall not be deemed a waiver of the right to require prompt payment when due of
all other sums; and acceptance of any payment after the Holder has declared the
entire indebtedness due and payable shall not cure any default of the maker or
operate as a waiver of any rights of the Holder hereunder. Upon default, the
Company agrees to pay all costs and reasonable actual attorneys' fees for
collection of this debt instrument.
3. Exchange Rights. Holder shall have the right from time to time to
exchange any or all of the unpaid indebtedness hereof (including accrued but
unpaid interest) for shares of the Common Stock, par value $0.01, of Aviation
Group, Inc., a Texas corporation ("AVGP"), pursuant to the terms of that certain
Exchange Agreement dated of even date herewith between Holder and AVGP, as
amended by First Amendment to Exchange Agreement dated as of October __, 2000
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(collectively, the "Exchange Agreement"). Any transfer of this Note shall
constitute a transfer of Holder's rights under the Exchange Agreement.
4. Release of Trade Account Payable. This instrument is issued in
consideration for the release and cancellation of a trade account payable in the
principal amount of this instrument owing to Holder by the Company. By
acceptance of this instrument, the Holder agrees that the Company is released
and discharged from such amount of trade account payable owing to Holder.
5. Successors and Assigns. All references herein to "holder" shall apply
to its successors and assign.
6. Notices. All notices and other communications to the Company under
this Note shall be deemed sufficiently given when personally delivered or three
days after being mailed by registered or certified mail, postage prepaid,
addressed to the Company c/o Aviation Group, Inc., 500 N. Pearl Street, Suite
2170, Dallas, Texas 75201, U.S.A., Attn. President, with copy to Jenkens &
Gilchrist, Fountain Place, 1445 Ross Avenue, Suite 3200, Dallas, Texas 75202,
Attention: Daryl B. Robertson, Esq., or to such other address as the Company
shall have furnished in writing to the Holder.
7. Governing Law. This Note shall be governed by and construed in
accordance with the laws of the State of Louisiana, without regard to its choice
of law principles.
8. Usury. It is the intention of the parties hereto to conform strictly
to any usury laws in force that apply to this transaction. Accordingly, all
agreements among the parties hereto are hereby limited so that in no
contingency, whether by reason of acceleration of the maturity of the amounts
owing under this Note or otherwise, shall the interest (and all other sums that
are deemed to be interest) contracted for, charged or received by the Holder
with respect to the Note, exceed the Highest Lawful Rate. The "Highest Lawful
Rate" means the maximum non-usurious interest rate, if any, that at any time or
from time to time may be contracted for, taken, reserved, changed or received
under the laws of the United States and the laws of such states as many be
applicable thereto which are presently in effect or, to the extent allowed under
such applicable laws of the United States and the laws of such states, which may
hereafter be in effect and which allow a higher maximum non-usurious interest
rate than applicable laws now allow. If, from any circumstance whatsoever,
interest under any agreement to which the Company and the Holder are parties
would otherwise be payable in excess of the Highest Lawful Rate, and if from any
circumstance the Holder shall ever receive anything of value deemed interest by
applicable law in excess of the Highest Lawful Rate, then the Holder's receipt
of such excess interest shall be deemed a mistake and the same shall, so long as
no default under this Note shall be continuing, at the option of the Company,
either be repaid to the Company or credited to the unpaid principal; provided,
however, that if a default shall have occurred and be continuing, and the Holder
shall receive excess interest during such period, then the Holder shall have the
option of either crediting such excess amount to principal or refunding such
excess amount to the Company.
9. Business Purpose. The Company hereby represents and warrants to the
Holder that the loan evidenced hereby is a "contract under which credit is
extended for business, commercial investment, or other similar purpose," and is
not a loan for "personal, family, household, or agricultural use."
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10. Replacement Note. This Note amends, restates and replaces in its
entirety that certain Exchangeable Promissory Note dated as of the same date in
the same original principal amount as this Note. Holder shall surrender the
original of such Exchangeable Promissory Note to the Company if it has not
previously done so.
IN WITNESS WHEREOF, Aviation Exteriors ___________, Inc. has caused this
instrument to be executed in its name and behalf, as of the day and year first
above written.
WITNESSES: AVIATION EXTERIORS _____________, INC.
____________________________
By:___________________________________
____________________________ Paul Lubomirski, President
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FORM OF
RESALE PRICE INDEMNITY
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This Resale Price Indemnity (the "Indemnity") dated as of
_________________, 2000, is made by Aviation Exteriors ___________, Inc., a
___________ corporation ("Indemnitor"), in favor of ____________________________
("Indemnitee").
W I T N E S S E T H:
WHEREAS, Indemnitor owes Indemnitee $___________ for ________________ (the
"Obligation"); and
WHEREAS, Indemnitee has agreed to release and cancel such Obligation in
exchange for receipt of that certain Exchangeable Promissory Note (the "Note")
dated of even date herewith made by Indemnitor and payable to the order of
Indemnitee in the original principal amount of $______________, the Exchange
Agreement (defined below) and this Indemnity; and
WHEREAS, in connection with delivery of the Note, Aviation Group, Inc., a
Texas corporation ("Aviation Group"), has entered into an Exchange Agreement
with Indemnitee dated of even date herewith (the "Exchange Agreement") pursuant
to which Indemnitee has the right to exchange, at a rate equal to the Exchange
Price (as defined below) per share, the indebtedness represented by the Note for
shares of Common Stock, $0.01 par value per share, of Aviation Group (the
"Stock"); and
WHEREAS, in connection with the execution and delivery of the Note and the
Exchange Agreement, Indemnitor desires to provide protection to Indemnitee from
a Loss (as defined below) realized by Indemnitee arising from its resale at less
than the Exchange Price of Stock obtained by it upon the exchange of any
indebtedness represented by the Note;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Indemnitor hereby agrees to indemnify and hold harmless Indemnitee
from a Loss (as hereinafter defined) realized by Indemnitee upon the resale by
Indemnitee of the Stock for which any indebtedness represented by the Note is
exchanged.
The term "Loss" shall mean the difference, if any, that results when the
average per share price realized by Indemnitee from the resale of the Stock
obtained by it upon exchange of any indebtedness represented by the Note, net of
any brokerage commission, is subtracted from the Exchange Price. Such resale
must be a bona fide resale transaction with a party not affiliated with
Indemnitee. Indemnitor's obligations hereunder do not apply to any subsequent
resale of the Stock by any transferee from Indemnitee.
The term "Exchange Price" shall initially mean $3.00 per share of Stock;
provided, however, in case Aviation Group shall hereafter (i) pay a dividend or
make a distribution on its Common Stock in additional shares of Common Stock,
(ii) subdivide its outstanding shares of Common Stock, (iii) combine its
outstanding shares of Common Stock into a smaller number of
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shares, or (iv) reclassify its shares of Common Stock, the Exchange Price in
effect immediately prior to such action shall be proportionately adjusted. For
example and not by way of limitation, if Aviation Group were to effect a
two-for-one stock split of its Common Stock, the Exchange Price would be
adjusted downward from $3.00 per share to $1.50 per share. Likewise, if
Aviation Group effected a one-for-two reverse stock split of its Common Stock,
the Exchange Price would be increased from $3.00 to $6.00 per share.
It shall be a condition to Indemnitor's obligation to indemnify and
reimburse Indemnitee for such Loss for Indemnitor to receive a written demand
for reimbursement together with sufficient information from which Indemnitor can
verify the amount of the Loss. Indemnitor shall promptly reimburse Indemnitee
for such Loss upon satisfaction of such condition.
This Indemnity and Indemnitor's obligations hereunder expire at, and do not
apply to any Loss realized after, 5:00 p.m. Dallas, Texas time on the first
anniversary of the date hereof.
EXECUTED as of the date first above written.
AVIATION EXTERIORS _____________, INC.
By:___________________________________
Name:_________________________________
Title:________________________________
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FORM OF
FIRST AMENDMENT TO RESALE PRICE INDEMNITY
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This First Amendment to Resale Price Indemnity is made and entered into as
of October __, 2000, by and among Aviation Exteriors ____________, Inc., a
____________ corporation ("Indemnitor"), and ______________________________
("Indemnitee").
W I T N E S S E T H:
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WHEREAS, Indemnitor executed and delivered to Indemnitee a Resale Price
Indemnity dated as of July ___, 2000 (the "Indemnity"); and
WHEREAS, Indemnitor has previously executed and delivered that certain
Exchangeable Promissory Note (the "Note"), payable to the order of Indemnitee in
the original principal amount of $_____________; and
WHEREAS, Aviation Group, Inc., a Texas corporation ("Aviation Group"), and
Indemnitee have previously entered into an Exchange Agreement dated as of
_____________, 2000 (the "Exchange Agreement"); and
WHEREAS, Indemnitor has requested Indemnitee to extend the maturity date of
the Note, and Indemnitee is willing to do so in consideration for a reduction in
the "Exchange Price" set forth in the Exchange Agreement and the Indemnity from
$3.00 to $1.50 per share; and
WHEREAS, Indemnitor and Indemnitee desire to amend the Indemnity as set
forth herein.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Indemnitor and Indemnitee do hereby amend the Indemnity by
deleting in its entirety the paragraph starting with the phrase "The term
"Exchange Price" shall initially mean $3.00 per share . . . ." and substituting
in lieu thereof the following paragraph:
"The term "Exchange Price" shall initially mean $1.50 per share of
Stock; provided, however, in case Aviation Group shall hereafter (i) pay a
dividend or make a distribution on its Common Stock in additional shares of
Common Stock, (ii) subdivide its outstanding shares of Common Stock, (iii)
combine its outstanding shares of Common Stock into a smaller number of
shares, or (iv) reclassify its shares of Common Stock, the Exchange Price
in effect immediately prior to such action shall be proportionately
adjusted. For example and not by way of limitation, if Aviation Group were
to effect a two-for-one stock split of its Common Stock, the Exchange Price
would be adjusted downward from $1.50 per share to $0.75 per share.
Likewise, if Aviation Group effected a one-for-two reverse stock split of
its Common Stock, the Exchange Price would be increased from $1.50 to $3.00
per share."
The Indemnity, as amended hereby, shall continue in full force and effect.
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EXECUTED as of the date first above written.
AVIATION EXTERIORS _____________, INC.
By:__________________________________
Paul Lubomirski, President
_____________________________________
By:__________________________________
Name:________________________________
Title:_______________________________
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