FIRST AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS FIRST AMENDMENT (this "Amendment") is entered into as of
September 14, 1998, between FLIGHTWAYS MANUFACTURING, INC., a California
corporation ("Borrower"), and NATIONSCREDIT COMMERCIAL CORPORATION, THROUGH ITS
NATIONSCREDIT COMMERCIAL FUNDING DIVISION ("Lender").
WHEREAS, Borrower has requested that Lender amend the Loan and
Security Agreement dated April __, 1998 (the "Loan Agreement") in various
respects, and Lender has agreed to do so subject to the terms contained herein;
NOW THEREFORE, in consideration of the premises and mutual
agreements herein contained, the parties hereto agree as follows:
1. Defined Terms. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings ascribed to such terms in the Loan
Agreement.
2. Amendments to Loan Agreement.
(a) Sections 1(a) and 1(g) of Schedule A to the Loan Agreement
are hereby amended to delete the reference to "$10,000,000" therein and to
substitute therefor a reference to "$15,000,000."
(b) Section 3(a) of Schedule A to the Loan Agreement is hereby
amended to delete the reference to "3.00%" therein and to substitute therefor a
reference to "2.00%".
(c) Section 7 of Schedule A to the Loan Agreement is hereby
amended to delete the reference to "April 17, 2000," therein and to substitute
therefor a reference to "August 31, 2002."
3. Other Amendments. This Amendment shall constitute an
amendment to the Loan Agreement and all of the other Loan Documents as
appropriate to express the agreements contained herein. In all other respects,
the Loan Agreement and the other Loan Documents shall remain unchanged and in
full force and effect in accordance with their original terms.
4. Effectiveness. This Amendment shall become effective as of
the date hereof upon receipt by Lender of a fully executed copy hereof.
5. Miscellaneous.
(a) Warranties and Absence of Defaults. In order to induce
Lender to enter into this Amendment, Borrower hereby warrants to Lender, as of
the date hereof, that:
(i) The representations and warranties of Borrower
contained in the Loan Agreement are true and correct as of the date
hereof as if made on the date hereof.
(ii) All information, reports and other papers and
data heretofore furnished to Lender by Borrower in connection with this
Amendment, the Loan Agreement and the other Loan Documents are accurate
and correct in all material respects and complete insofar as may be
necessary to give Lender true and accurate knowledge of the subject
matter thereof. Borrower has disclosed to Lender every fact of which it
is aware which might adversely affect the business, operations or
financial condition of Borrower or the ability of Borrower to perform
its obligations under this Amendment, the Loan Agreement or under any
of the other Loan Documents. None of the information furnished to
Lender by or on behalf of Borrower contained any material misstatement
of fact or omitted to state a material fact or any fact necessary to
make the statements contained herein or therein not materially
misleading.
(iii) No Event of Default or Default exists as of the
date hereof.
(b) Expenses. Borrower agrees to pay on demand all costs and
expenses of Lender (including the reasonable fees and expenses of outside
counsel for Lender) in connection with the preparation, negotiation, execution,
delivery and administration of this Amendment and all other instruments or
documents provided for herein or delivered in connection herewith. In addition,
Borrower agrees to pay, and save Lender harmless from all liability for, any
stamp or other taxes which may be payable in connection with the execution or
delivery of this Amendment or the Loan Agreement, as amended hereby, and the
execution and delivery of any instruments or documents provided for herein or
delivered or to be delivered hereunder or in connection herewith. All
obligations provided in this Section 5(b) shall survive any termination of this
Amendment and the Loan Agreement as amended hereby.
(c) Governing Law. This Amendment shall be a contract made
under and governed by the internal laws of the State of New York.
(d) Counterparts. This Amendment may be executed in any number
of counterparts, and by the parties hereto on the same or separate counterparts,
and each such counterpart, when executed and delivered, shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same Amendment.
(e) Reference to Loan Agreement. On and after the
effectiveness of the amendment to the Loan Agreement accomplished hereby, each
reference in the Loan Agreement to "this Amendment," "hereunder," "hereof,"
"herein" or words of like import, and each reference to the Loan Agreement in
any other Loan Documents, or other agreements, documents or other instruments
executed and delivered pursuant to the Loan Agreement, shall mean and be a
reference to the Loan Agreement, as amended by this Amendment.
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(f) Successors. This Amendment shall be binding upon Borrower,
Lender and their respective successors and assigns, and shall inure to the
benefit of Borrower, Lender and the successors and assigns of Lenders.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized
and delivered at New York, New York as of the date first above written.
FLIGHTWAYS MANUFACTURING, INC.
By /s/ Xxxx X. Xxxxxx
------------------------------
Its CEO
NATIONSCREDIT COMMERCIAL
CORPORATION, THROUGH ITS
NATIONSCREDIT COMMERCIAL FUNDING
DIVISION
By /s/ Xxxxx Xxxxx Xxxxxxx
------------------------------
Its Vice President
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