TO LOAN AND SECURITY AGREEMENT
|
AMENDMENT
NO. 8
|
|
TO
|
THIS
AMENDMENT NO. 8 TO LOAN AND SECURITY AGREEMENT
(this
"Amendment"),
dated
as of the 2nd day of November, 2005, made by and between
BANK
OF AMERICA, N.A.
(successor by assignment from Banc of America Leasing & Capital, LLC,
successor by merger with FCC Transition LLC which in turn was the successor
by
merger with Fleet Capital Corporation), a national banking association (the
"Lender");
and
CHAUTAUQUA
AIRLINES, INC.,
an
Indiana corporation (successor by merger with Chautauqua Airlines, Inc., a
New
York corporation) (the "Borrower"),
to
the
Loan and Security Agreement, dated December 9, 1998 (as amended, modified,
restated or supplemented from time to time, the "Loan
Agreement")
between the Borrower and the Lender. All capitalized terms used herein without
definition shall have the meanings ascribed to such terms in the Loan
Agreement.
|
RECITALS
|
A. Pursuant
to the Loan Agreement, the Lender has agreed to make loans and extend credit
to
the Borrower secured by the Collateral.
B. The
Borrower has requested that the Loan Agreement be modified to eliminate a Change
of Control as one of the enumerated Events of Default under the Loan Agreement.
C. The
Lender has agreed to such request and to accomplish the foregoing, the Borrower
and the Lender have agreed to amend the Loan Agreement as set forth
herein.
|
STATEMENT
OF AGREEMENT
|
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which are hereby expressly
acknowledged, the Borrower and the Lender hereby agree as follows:
|
ARTICLE
I
|
AMENDMENTS
TO LOAN AGREEMENT
The
Loan
Agreement is hereby amended as follows:
1.1. Definitions.
The
definition of "Change of Control" as set forth in Appendix A to the Loan
Agreement is deleted in its entirety.
1.2. Events
of Default.
Section
11.1.9 of the Loan Agreement, Change
of Control,
is
deleted in its entirety and in lieu thereof is substituted the phrase
"RESERVED".
|
ARTICLE
II
|
|
MODIFICATION
OF LOAN DOCUMENTS
|
2.1. Loan
Documents.
The
Loan Agreement and each of the other Loan Documents are amended to provide
that
any reference to the Loan Agreement in the Loan Agreement or any of the other
Loan Documents shall mean the Loan Agreement as amended by this Amendment,
and
as it is further amended, restated, supplemented or modified from time to
time.
|
ARTICLE III
|
|
REPRESENTATIONS
AND WARRANTIES
|
The
Borrower hereby represents and warrants to the Lender that as of the date
hereof:
3.1. Compliance
with the Loan Agreement and Other Loan Documents.
The
Borrower is in compliance with all of the terms and provisions set forth in
the
Loan Agreement and in the other Loan Documents to be observed or performed
by
the Borrower, except where the failure of the Borrower to comply has been waived
in writing by the Lender.
3.2. Representations
in Loan Agreement and other Loan Documents.
The
representations and warranties of the Borrower set forth in the Loan Agreement
and the other Loan Documents are true and correct in all material respects
except to the extent that such representations and warranties relate solely
to
or are specifically expressed as of a particular date or period which is past
or
expired as of the date hereof.
3.3. No
Event of Default.
No
Default or Event of Default exists.
|
ARTICLE
IV
|
|
GENERAL
|
4.1. Full
Force and Effect.
As
expressly amended hereby, the Loan Agreement shall continue in full force and
effect in accordance with the provisions thereof. As used in the Loan Agreement,
"hereinafter", "hereto", "hereof" or words of similar import, shall, unless
the
context otherwise requires, mean the Loan Agreement as amended by this
Amendment.
4.2. Applicable
Law.
This
Amendment shall be governed by and construed in accordance with the internal
laws and judicial decisions of the State of North Carolina.
4.3. Counterparts.
This
Amendment may be executed in one or more counterparts, each of which shall
constitute an original, but all of which when taken together shall constitute
but one and the same instrument.
4.4. Expenses.
The
Borrower shall reimburse the Lender for all reasonable legal fees and expenses
incurred by the Lender in connection with the preparation, negotiation,
execution and delivery of this Amendment and all other agreements and documents
or contemplated hereby.
4.5. Headings.
The
headings in this Amendment are for the purpose of reference only and shall
not
affect the construction of this Amendment.
4.6. Waiver
of Jury Trial.
TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE BORROWER, THE PARENT AND THE
LENDER EACH WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING
OR
COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THIS AMENDMENT, THE LOAN
AGREEMENT OR THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR
THERETO.
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
and delivered on the date first above written.
BORROWER:
CHAUTAUQUA
AIRLINES, INC
By:/s/
Xxxxxx X. Xxxxxx
Title:Executive
Vice President & Chief Financial Officer
LENDER:
BANK
OF AMERICA, N.A.
(successor
by assignment to
Fleet
Capital Corporation)
By:
/s/ Xxxxxx X. Xxxxxx
Title:
Senior Vice President
