Exhibit 10 (46)
EIGHTH AMENDMENT TO THE AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT
THIS EIGHTH AMENDMENT TO THE AMENDED AND RESTATED LOAN AND SECURITY
AGREEMENT dated April 14, 1999 (this "Amendment") is between TOWER AIR, INC., a
Delaware corporation ("Borrower"), the financial institutions listed on the
signature page hereof (collectively, the "Lenders") and XXXXXX FINANCIAL, INC.,
a Delaware corporation (in its individual capacity, "Xxxxxx"), for itself as a
Lender and as Agent ("Agent").
WITNESSETH:
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WHEREAS, Agent, Lenders and Borrower are parties to a certain Amended
and Restated Loan and Security Agreement dated as of September 1, 1997 and all
amendments thereto (collectively, the "Loan Agreement"); and
WHEREAS, the parties desire to amend the Loan Agreement subject to the
terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual conditions and
agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Definitions. Capitalized terms used in this Amendment,
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unless otherwise defined herein, shall have the meaning ascribed to such terms
in the Loan Agreement.
SECTION 2. Amendment of the Loan Agreement. The Loan Agreement is
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hereby amended as follows:
(a) Section 2.1 is amended by deleting subsection 2.1(A) in its
entirety and inserting the following in lieu thereof:
2.1 Revolving Loan. Subject to the terms and conditions of this
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Agreement and in reliance upon the representations and warranties of the
Borrower and the other Loan Parties set forth herein and in the other Loan
Documents, each Lender severally agrees to lend to Borrower, from time to time,
its Pro Rata Share of each Revolving Advance. From and after the Closing Date
through the Termination Date, the aggregate amount of all Revolving Loan
Commitments shall not exceed the following amounts during the following periods:
(i) from and after April 14, 1999, to and including May 30, 1999, Twenty Million
Dollars ($20,000,000); (ii) on and after May 31, 1999, to and including June 29,
1999, Nineteen Million Dollars ($19,000,000); (iii) on and after June 30, 1999,
to and including July 30, 1999, Eighteen Million Dollars ($18,000,000); (iii) on
and after July 31, 1999, to and including August 30, 1999, Sixteen Million
Dollars ($16,000,000); and (iv) on and after August 31, 1999, Fifteen Million
Dollars ($15,000,000), each as reduced by subsection 2.4(B). Amounts borrowed
under this subsection 2.1(A) may be repaid and reborrowed at any time prior to
the earlier of (i) the termination of the Revolving Loan commitment pursuant to
subsection 8.3 or (ii) the Termination Date. Except as otherwise provided
herein no Lender shall have any obligation to make an advance under this
subsection 2.1(A) to the extent such advance would cause the Revolving Loan
(after giving effect to any immediate application of the proceeds thereof) to
exceed the Maximum Revolving Loan Amount.
(b) Section 5 is amended by deleting subsection 5.16 in its entirety
and inserting the following in lieu thereof:
5.16 Suppressed Availability. Borrower shall maintain, at all times,
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Suppressed Availability in an amount of Seven Million Dollars ($7,000,000), plus
an additional Five Hundred Thousand Dollars ($500,000) of Suppressed
Availability for each additional One Million Dollars ($1,000,000) borrowed above
Fifteen Million Dollars ($15,000,000).
SECTION 3. Conditions Precedent to Effectiveness. The parties hereto
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agree that this Amendment shall not become effective unless and until the
following conditions have been met:
(a) Fee. Agent shall have received Three Hundred Thousand Dollars
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($300,000) in immediately available funds as an amendment fee, which shall be
due, fully earned and payable upon the execution hereof and which Agent shall
charge to the Revolving Loan on the date hereof.
(b) Secretary's Certificate. Agent shall have received a certificate
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of the secretary of Borrower, which certificate shall be in form and substance
satisfactory to Agent, having attached thereto duly authorized resolutions of
the Board of Directors of the Borrower with respect to the transactions
contemplated hereby.
(c) No Default. No event shall have occurred and be continuing that
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constitutes or would constitute, with the giving of notice or the passage of
time or both, an Event of Default.
(d) There shall have occurred no material adverse change in the
business operations, financial condition, profits or prospects of Borrower, or
in the Collateral;
(e) Borrower shall have executed and delivered such other documents
and instruments as Lender may require.
(f) 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 Lender and its legal counsel.
SECTION 4. Expenses. Whether or not the transaction contemplated by
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this Amendment shall be consummated, Borrower agrees to promptly pay all
reasonable fees, costs and expenses incurred by Agent and each of the Lenders in
connection with any matters contemplated by or arising out of this Amendment or
the other Loan Documents including the following, and all such fees, costs and
expenses shall be part of the Obligations, payable on demand and secured by the
Collateral: (a) fees, costs and expenses (including attorneys' fees, allocated
costs of internal counsel and fees of environmental consultants, accountants and
other professionals retained by Agent) incurred in connection with the
examination, review, due diligence investigation, documentation and closing of
the financing arrangement evidenced by this Amendment and the other Loan
Documents; and (b) fees, costs and expenses (including attorneys' fees,
allocated costs of internal counsel and fees of environmental consultants,
accountants and other professionals retained by Agent) incurred in connection
with the review, negotiation, preparation, documentation, execution,
syndication, and administration of this Amendment and the other Loan Documents,
the Loans, and any amendments, waivers, consents, forbearances and other
modifications relating thereto or any subordination or intercreditor agreements.
SECTION 5. Waiver. Pursuant to Section 5.9 of the Loan Agreement,
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failure by Borrower to pay in a timely manner all taxes due is an Event of
Default. Borrower has advised Agent that Borrower has failed to pay certain
excise taxes for the periods December 31, 1998, January 31, 1999 and February
28, 1999. Borrower has requested a waiver from Agent and Agent hereby waives
its rights under the Loan Agreement in connection with the occurrence of such
Event of Default. The continued effectiveness of this waiver is specifically
conditioned upon (a) Borrower's payment of all excise taxes which are due in
full on or by April 15, 1999 and (b) Borrower providing proof thereof in form
reasonably acceptable to Agent no later than April 20, 1999.
SECTION 6. Corporate Action. The execution, deliver, and performance
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of the 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.
SECTION 7. Ratification; References to Loan Agreement. The terms and
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provisions of this Amendment shall modify and supersede all inconsistent terms
and provisions of the Loan Agreement. Except as amended hereby, the Loan
Agreement continues and shall remain in full force and effect in all respects.
From and after the date of this Amendment, each and every reference in the Loan
Agreement to "this Loan Agreement," "this Agreement,"
"herein," "hereof" or similar words and phrases or any word or phrase referring
to a section or provision of the Loan Agreement is deemed for all purposes to be
a reference to the Loan Agreement or such section or provision as amended
pursuant to this Amendment.
SECTION 8. Severability; Headings; Amendment. Any provision of this
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Amendment which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. No term or
provision of this Amendment may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by Borrower, Agent and
Requisite Lenders. The section headings in this Amendment are for convenience
of reference only and shall not modify, define, expand or limit any of the terms
or provisions hereof.
SECTION 9. Counterparts; Effectiveness. This Amendment may be
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executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all of which counterparts together shall constitute but
one and the same instrument. This Amendment shall become effective upon the
execution of a counterpart hereof by each of the parties hereto. Delivery of an
executed counterpart of a signature page to this Amendment by telecopier shall
be as effective as delivery of a manually executed counterpart thereof.
SECTION 10. References. Any reference to the Agreement contained in
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any notice, request, certificate, or other document executed concurrently with
or after the execution and delivery of this Amendment shall be deemed to include
this Amendment unless the context shall otherwise require.
IN WITNESS WHEREOF, each of the parties hereto has caused this Fourth
Amendment to Loan and Security Agreement to be duly executed on the date first
above written.
TOWER AIR, INC.,
Borrower
By: /s/ Xxxxxx X. Xxxxxxxx
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Chairman, President and Chief Executive officer
XXXXXX FINANCIAL, INC.,
Agent and Lender
By: /s/ Xxxxxxx Xxxxxxxx,
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Xxxxxxx Xxxxxxxx, Vice President
