Exhibit 10(38)
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SEVENTH AMENDMENT TO AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
This Seventh Amendment to that certain Amended and Restated Loan and
Security Agreement ("AMENDMENT") is entered into this 27/th/ day of August 1998
by and between Tower Air, Inc. ("BORROWER"), the financial institutions listed
on the signature pages thereof (collectively, "LENDERS") and Xxxxxx Financial,
Inc., (in its individual capacity, "Xxxxxx"), for itself as a Lender and as
Agent ("AGENT").
WHEREAS, Agent, Lenders and Borrower are parties to a certain Amended and
Restated Loan and Security Agreement, dated September 1, 1997 and all amendments
thereto (the "AGREEMENT"); and
WHEREAS, the parties desire to further amend the Agreement as hereinafter
set forth;
NOW THEREFORE, in consideration of the mutual conditions and agreements set
forth in the Agreement and this Amendment, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. DEFINITIONS. Capitalized terms used in this Amendment, unless
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otherwise defined herein, shall have the meaning ascribed to such term
in the Agreement.
2. AMENDMENTS. Subject to the conditions set forth below, the Agreement
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is amended as follows:
Section 6 is amended by deleting subsection 6.1 in its entirety,
effective as of July 31, 1998, and inserting the following in lieu
thereof;
6.1 Tangible Net Worth. Borrower shall maintain Tangible
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Net Worth equal to at least the amounts indicated for each
month during the periods set forth below:
Period Amount
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July 1998 $44,500,000
August 1998 - March 1999 $45,000,000
April 1999 - May 1999 $50,000,000
3. CONDITIONS. The effectiveness of this Amendment is subject to the
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following conditions precedent (unless specifically waived in writing
by Agent):
(a) Borrower shall have executed and delivered such other
documents and instruments as Agent may require;
(b) All proceedings taken in connection with the
transactions contemplated by this Amendment and all
documents, instruments and other legal matters incident
thereto shall be satisfactory to Agent and its legal
counsel;
(c) No Default or Event of Default shall be in existence.
4. CORPORATE ACTION. The execution, delivery, and performance of this
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Amendment has been duly authorized by all requisite corporate action
on the part of Borrower and this Amendment has been duly executed and
delivered by Borrower.
5. SEVERABILITY. Any provision of this Amendment held by a court of
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competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof
shall be confined to the provision so held to be invalid or
unenforceable.
6. REFERENCES. Any reference to the Agreement contained in any document,
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instrument or agreement executed in connection with the Agreement,
shall be deemed to be a reference to the Agreement as modified by this
Amendment.
7. COUNTERPARTS. This Amendment may be executed in one or more
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counterparts, each of which shall constitute an original, but all of
which taken together shall be one and the same instrument
8. RATIFICATION. The terms and provisions set forth in this Amendment
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shall modify and supersede all inconsistent terms and provisions of
the Agreement, and shall not be deemed to be a consent to the
modification or waiver of any other term or condition of the
Agreement. Except as expressly modified and superseded by the
Amendment, the terms and provisions of the Agreement are ratified and
confirmed and shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed under seal and delivered by their respective duly authorized
officers on the date first written above.
XXXXXX FINANCIAL, INC. TOWER AIR, INC.
By: /s/Xxxxxxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxx
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Title: Vice President Title: Chairman, President & CEO
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