EXHIBIT 10.41
SECOND AMENDMENT TO
AMENDED AND RESTATED LOAN AGREEMENT,
RELATED LOAN DOCUMENTS AND MASTER AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT, RELATED
LOAN DOCUMENTS AND MASTER AGREEMENT ("Second Amendment") is made as of July 9,
1997, among CCAIR, INC., a Delaware corporation doing business as USAirways
Express ("Borrower"), BRITISH AEROSPACE HOLDINGS, INC., a Delaware corporation
and successor in interest to British Aerospace, Inc. ("BAH"), JET ACCEPTANCE
CORPORATION, a Delaware corporation ("JACO"), and BRITISH AEROSPACE ASSET
MANAGEMENT, INC., a Delaware corporation formerly known as JSX CAPITAL
CORPORATION ("Lender").
WHEREAS, Borrower and Lender entered into that certain Amended and
Restated Loan Agreement dated as of February 10, 1995 (as amended, the "Loan
Agreement"), pursuant to which Lender lent to Borrower the Loan, as defined in
the Loan Agreement. The Loan was evidenced by that certain Promissory Note dated
February 10, 1995, made by Borrower payable to Lender, which Promissory Note has
been amended and restated by that certain amended and restated promissory note
dated as of September 19, 1996 (as amended and restated, the "Original Note").
WHEREAS, Borrower, BAH, JACO and Lender entered into that certain First
Amendment to Amended and Restated Loan Agreement, Related Loan Documents and
Master Agreement dated as of September 19, 1996 (as amended, the "First
Amendment").
WHEREAS, Borrower, BAH, JACO and Lender entered into that certain
document entitled "The September 1995 Master Agreement" and dated as of
September 20, 1995 (as amended, the "Master Agreement"), pursuant to which (a)
Borrower executed and delivered that certain Promissory Note dated as of
September 20, 1995 (the "JACO/BAH Promissory Note"), made by Borrower payable to
JACO and BAH in the principal amount of Six Hundred Seventy- Six Thousand One
Hundred Twenty Dollars and 90/100 ($676,120.90) and (b) Borrower, BAH, JACO and
Lender set forth various obligations and understandings with respect to various
aircraft as set forth therein.
WHEREAS, Borrower, BAH, JACO and Lender wish to (a) amend the terms of
the Loan Agreement, the Master Agreement and the other Loan Documents (as
defined in the Loan Agreement), (b) to amend and restate the Original Note as
set forth in that certain Second Amended and Restated Promissory Note of even
date made by Borrower payable to Lender in the original principal amount of
$4,000,000.00, (the "Second Amended Note") and (c) to amend that certain Second
Amendment and Restatement of Special Account and Disbursement Authorization
Agreement among Borrower, Lender, BAH, JACO and the Bank of New York dated as of
May 28, 1996 (as amended, the "BNY Disbursement Agreement").
NOW, THEREFORE, in consideration of the foregoing, the mutual promises
herein contained, and the sum of Ten Dollars ($10.00) and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Borrower, BAH, JACO and Lender agree and do hereby amend the Loan
Documents and the Master Agreement as follows:
1. Increase in Revolving Loan Commitment; Amended and Restated
Note; No Novation. The Revolving Loan Commitment, as defined in the Loan
Agreement, is hereby increased to $4,000,000.00 subject to all of the terms and
provisions of the Loan Agreement including, without limitation, the Borrowing
Base. The Original Note is hereby amended and restated in its entirety as set
forth in the Second Amended Note. Henceforth, all references in the Loan
Agreement and the other Loan Documents to the "Note" or the "Revolving Note"
shall mean the Second Amended Note. The Second Amended Note is not intended to,
nor shall it, constitute a novation in any manner whatsoever.
2. Termination Date. The Termination Date, as defined in the
Loan Agreement, is July 31, 1998. Lender may, in its sole discretion, extend
the Termination Date.
3. Change in Borrowing Base. The definition of "Borrowing
Base" in the Loan Agreement is hereby amended in its entirety to read as
follows:
(i) "Borrowing Base" means 70% of the Eligible
Receivables. The calculation of the Borrowing Base shall be
based upon the latest Monthly Market Pair Summary and the
latest interim Monthly Market Pair Summary, as applicable,
and, with respect to Non-Transportation Receivables,
Borrower's reasonable good faith estimate of these
Non-Transportation Receivables. In no event shall such
Non-Transportation Receivables in excess of $350,000
constitute any portion of the Eligible Receivables for
computation of the Borrowing Base in any given month. The
calculation of the Borrowing Base shall be subject to
adjustment by Lender at any time to reflect contrary
information contained in (a) the Chase Manhattan Bank, N.A.,
Settlement Statements Relating to Inter-Airline Accounts
Receivable delivered pursuant to Section 4.01(f) and/or (b)
any alternate source of information deemed appropriate by
Lender.
4. Mandatory Repayments. Section 1.06 of the Loan Agreement
is hereby amended by adding the following Subsection 1.06(d):
(d) Borrower shall repay the outstanding principal
balance of the Revolving Loan and all interest thereon, in
full, on each June 30 and December 31 hereafter. Amounts paid
under this Section 1.06(d) may be reborrowed after each June
30 and December 31 prior to the Termination Date, subject to
the provisions of this Loan Agreement.
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5. Special Undertakings with respect to Aircraft Rents. In the
event that the balance of the Special Account (as defined in the BNY
Disbursement Agreement) is insufficient to pay all of the due and payable
Creditor Obligations (as defined in the BNY Disbursement Agreement), Borrower
shall request an Advance pursuant to Section 1.02 of the Loan Agreement in the
amount equal to the difference of (a) all sums due and payable under the
Creditor Obligations minus (b) the proceeds available under Section 4.1 of the
BNY Disbursement Agreement for application against the Creditor Obligations.
Lender may, but is under no obligation to, waive any requirements of the Loan
Agreement with respect to the making or disbursing of the requested Advance.
Borrower shall request such Advances as soon as Borrower has reason to believe
that in any given month the Creditor Obligations for that month exceed the
proceeds available under Section 4.1 of the BNY Disbursement Agreement for
payment of Creditor Obligations with respect to that month. In the event that
Borrower fails to request such a disbursement, Lender may, but is under no
obligation to, unilaterally make an Advance in the amount equal to the
difference of (c) all sums due and payable under the Creditor Obligations for
any given month minus (d) the proceeds available under Section 4.1 of the BNY
Disbursement Agreement for application against the Creditor Obligations with
respect to that month.
6. Centura Loan. Lender acknowledges that the existence of the
existing $400,000 loan to Borrower from Centura Bank as set forth in the
Commitment Letter dated October 8, 1996 does not constitute a default of the
Loan Agreement provided, however, that any default under any current or future
document evidencing, securing or otherwise relating to this Centura loan shall
constitute an Event of Default under the Loan Agreement.
7. Modifications of Loan Documents; Terms Not Changed. Each of
the Loan Documents is hereby modified to reflect the terms of this Second
Amendment and the concurrent modification of the other Loan Documents. The term
"Loan Documents", as contained in the Loan Agreement and the other Loan
Documents, shall expressly include without limitation the Loan Agreement, the
Second Amended Note, this Second Amendment, the First Amendment, the Master
Agreement, the JACO/BAH Promissory Note, the BNY Disbursement Agreement and all
other current and future documents (a) evidencing, securing or otherwise
relating to the Loan or (b) relating to the Loan Documents or the Master
Agreement. Unless expressly modified herein, each of the other provisions of the
Loan Documents shall remain in full force and effect.
8. Amendment to BNY Disbursement Agreement. Borrower shall
execute and deliver an amendment to the BNY Disbursement
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Agreement, in a form and content satisfactory to JACO, BAH and Lender.
9. Conditions Precedent; Further Assurances. The effectiveness
of this Second Amendment is expressly conditioned on the following conditions
precedent being satisfied to the satisfaction of BAH, JACO, Lender and their
counsel;
a. Execution and delivery by all parties of this Second
Amendment;
b. Execution and delivery of the Second Amended Note by
Borrower;
c. Delivery of an opinion of counsel to Borrower, in a form
and content satisfactory to Lender, addressing the
execution, delivery, authorization and enforceability of
this Second Amendment and the Second Amended Note, the
amendment of the BNY Disbursement Agreement, the
collateralization of the Second Amended Note, and such
other and further provisions as may be required by
Lender;
d. Payment by Borrower of the expenses, including without
limitation, reasonable legal fees, incurred by JACO, BAH
and/or Lender in connection with this Second Amendment;
and
e. Such other and further matters as may be reasonably
required by Lender, including, without limitation, UCC
searches, corporate material, and other material.
Borrower further agrees to execute and deliver such other instruments
and material as may be requested by BAH, JACO or Lender to consummate the
intentions of the parties with respect to this Second Amendment including,
without limitation, the creation, attachment and perfection of the security
interest intended to secure the Second Amended Note.
10. General. This Second Amendment may be executed in more than
one counterpart, each of which shall constitute but one and the same instrument.
This Second Amendment shall be governed by the laws of North Carolina. The
invalidity of any provision contained in this Second Amendment shall not effect
the validity of any of the other provisions. A default by Lender under the Loan
Agreement or any of the other Loan Documents (other than the Master Agreement)
shall not constitute a default under the Master Agreement or give rise to any
claims, rights or set off thereunder. A default by Lender, JACO or BAH under the
Master Agreement shall not be a default under the other Loan Documents or give
rise to any claims, rights or set off thereunder. BORROWER REPRESENTS AND
WARRANTS TO BAH, JACO AND LENDER THAT BORROWER HAS NO CLAIMS, AGAINST BAH, JACO
OR LENDER AND BORROWER HEREBY WAIVES AND RELEASES CLAIMS IT MIGHT OTHERWISE HAVE
HAD, AGAINST JACO, BAH AND/OR LENDER IN CONNECTION WITH THE MASTER AGREEMENT,
THE LOAN DOCUMENTS, THE LOAN OR ANY OTHER DEALING AMONGST THESE ENTITIES.
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IN WITNESS WHEREOF, the undersigned corporations have caused this
Second Amendment to be executed under seal by their duly authorized officers as
of the date first above written.
CCAIR, INC., a Delaware corporation doing
business as USAirways Express
ATTEST:
Secretary By:
[CORPORATE SEAL] Its: President
BRITISH AEROSPACE HOLDINGS,
INC., a Delaware
corporation and successor
in interest to British
Aerospace, Inc.
By:
Its:
JET ACCEPTANCE CORPORATION, a Delaware
corporation
By:
Its:
BRITISH AEROSPACE ASSET MANAGEMENT, INC., a
Delaware corporation formerly known as JSX
CAPITAL CORPORATION
By:
Its:
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