Exhibit 10(12)
FIRST AMENDMENT TO CONSOLIDATED, AMENDED AND
RESTATED AIRCRAFT AND ENGINE LOAN
AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO CONSOLIDATED, AMENDED AND RESTATED AIRCRAFT
AND ENGINE LOAN AND SECURITY AGREEMENT (this "Amendment") made and entered into
this 8th day of May, 1996 by and between FINOVA CAPITAL CORPORATION (formerly
GREYHOUND FINANCIAL CORPORATION) (the "Lender"), a corporation organized and
existing under the laws of the State of Delaware, with its chief executive
office and principal place of business at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000 and TOWER AIR, INC. (The "Borrower"), a corporation organized and
existing under the laws of the State of Delaware, with its chief executive
office and principal place of business at Hangar Xx. 00, Xxxx X. Xxxxxxx
Xxxxxxxxxxxxx Xxxxxxx, Xxxxxxx, Xxx Xxxx 00000.
WITNESSETH:
WHEREAS, the Borrower and the Lender have previously entered into the
Consolidated, Amended and Restated Aircraft and Engine Loan and Security
Agreement dated as of March 25, 1996 (the "Loan Agreement");
WHEREAS, the Borrower desires to borrow from the Lender an additional
$21,000,000.00 (the "N616FF Loan") pursuant to the terms of that certain
Aircraft Loan and Security Agreement dated as of May 8, 1996 between the
Borrower and the Lender; and
WHEREAS, it is a condition precedent to the Lender's obligation to
make the N616FF Loan to the Borrower that the Borrower enter into this
Amendment.
NOW, THEREFORE, the undersigned hereto agree as follows:
1. DEFINITIONS.
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Capitalized terms used herein unless otherwise defined herein shall
have the meaning ascribed to such terms in the Loan Agreement.
2. AMENDMENTS TO LOAN AGREEMENT.
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2.1 Section 1.1 of the Loan Agreement is amended by inserting
immediately after the term "Loan Agreement [613FF/N617FF]" a new definition
which reads as follows:
"Loan Agreement [N616FF]: shall mean that
certain Aircraft Loan and Security Agreement
dated as of May 8, 1996 between the Borrower
and the Lender."
2.2 Section 8.1 of the Loan Agreement is amended by: (i) deleting the
word "or" at the end of clause (k) thereof; (ii) deleting the period at the end
of clause (l) thereof and inserting "; or" in place thereof and (iii) inserting
immediately after clause (l) a new clause (m) which reads as follows"
"(m) an "Event of Default" under and as defined in the Loan
Agreement [N616FF] has occurred and be continuing."
3. ACKNOWLEDGMENTS AND CONFIRMATIONS.
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3.1 All references in the Loan Agreement and every other
agreement, instrument and document executed and delivered by Borrower in
connection therewith, to the "Loan Agreement" shall be deemed to refer to the
Loan Agreement as amended hereby.
3.2 The Loan Agreement and all agreements, instruments and
documents executed and delivered in connection with any of the foregoing, shall
each be deemed amended hereby to the extent necessary, if any, to give effect
to the provisions of this Amendment.
4. MISCELLANEOUS.
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4.1 Except as specifically amended hereby, the Loan Agreement
shall remain in full force and effect in accordance with its terms, and each
of the Borrower and Lender hereby ratify and affirm all of the terms and
conditions of the Loan Agreement as amended hereby.
4.2 THIS AMENDMENT SHALL BE GOVERNED AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF ARIZONA.
4.3 This Amendment shall be binding upon and inure to the
benefit of the Borrower and the Lender and their respective successors and
assigns. The rights and obligations of the Borrower under this Amendment shall
not be assigned or delegated without the prior written consent of the Lender,
and any purported assignment or delegation without such consent shall be void.
4.4 Time is of the essence with respect to the terms and
provisions of this Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment to Consolidated, Amended and Restated Aircraft and Engine Loan and
Security Agreement as of the day and year first above written.
TOWER AIR, INC.
By /s/ Xxxxxxxxx X. Xxxxx
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Title: Chief Financial Officer
Tax ID No.: 00-000-0000
FINOVA CAPITAL CORPORATION
By /s/ Xxxxx X. Xxxxx
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Title: Vice President
