EX-10.52
Exhibit 10(52)
This Fourteenth
Amendment to that certain Amended and Restated Loan and Security Agreement
(“Amendment”) is dated as of September 8, 1999, and is entered into by and
between TOWER AIR, INC. (“Borrower”), the financial institutions listed on the
signature page hereof (collectively, the “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 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
agree as follows:
1. Definitions.
Capitalized terms used in this Amendment, unless 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 is amended as follows:
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| (a)
The first paragraph of subsection 2.1(A) is amended by deleting the first
paragraph of said subsection in its entirety and substituting the following in
lieu thereof:
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| (A)
Revolving Loan. Subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties of 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
September 8, 1999, to and including September 12, 1999, Nineteen Million
Dollars ($19,000,000); (ii) on and after September 13, 1999, to and including
September 19, 1999, Eighteen Million Dollars ($18,000,000); (iii) on and after
September 20, 1999, to and including September 26, 1999, Seventeen Million
Dollars ($17,000,000); (iv) on and after September 27, 1999, to and including
September 29, 1999, Sixteen Million Dollars ($16,000,000); and (v) on September
30, 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.
3. Conditions.
The effectiveness of this Amendment is subject to the following conditions
precedent (unless specifically waived in writing by Agent):
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| (a)
Borrower shall have executed and delivered such other documents and instruments
as Agent may require;
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| (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;
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| (c)
No Default or Event of Default shall have occurred and be continuing; and
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| (d)
Borrower shall have paid Agent an amendment fee in the amount of $25,000.
4. Corporate
Action. The execution, delivery, and performance of this 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 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, instrument or
agreement executed in connection with the Agreement shall be deemed to be a
reference to the Agreement as modified by the Amendment.
7.
Counterparts. This Amendment may be executed in one or more 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 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
this 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.
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| XXXXXX FINANCIAL, XXX.xx Agent and Lender
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| By: s/s Xxxx Xxxxxxxx
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| Title: SVP
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| TOWER AIR, XXX.xx Borrower
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| By: s/s Badar Mir
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| Title: VP-Financial Accounting
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