10-Q
Exhibit 10(49)
This Eleventh Amendment to that certain
Amended and Restated Loan and Security Agreement (“Amendment”) is made and
entered into this 30th day of June 1999, 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 hereby 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 April
14, 1999, to and including June 21, 1999, Twenty Million Dollars
(“$20,000,000“); (ii) on and after June 21, 1999, to and including July 30,
1999, Nineteen Million Dollars (“$19,000,000“); (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.
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)
Borrower shall have paid Lender an amendment fee in the amount of Twenty-five
Thousand Dollars ($25,000.00); and
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| (d)
No Default or Event of Default shall have occurred and be continuing.
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 this 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, INC.,as Agent and Lender By:/s/ Xxxx RichardsTitle: SVP
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| TOWER AIR, INC.,as Borrower By: /s/ Badar MirTitle: VP Financial Accounting
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