LOAN AND SECURITY AGREEMENT THIS AMENDMENT NO. 9 TO LOAN AND SECURITY AGREEMENT (this "Amendment"), dated as of the 12th day of January, 2006, made by and between
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AMENDMENT
NO. 9
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TO
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THIS
AMENDMENT NO. 9 TO LOAN AND SECURITY AGREEMENT
(this
"Amendment"),
dated
as of the 12th day of January, 2006, 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.
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RECITALS
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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 Letter of Credit Amount be increased from
the
sum of $7.5 million to the sum of $8.5 million.
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.
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STATEMENT
OF AGREEMENT
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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
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AMENDMENTS
TO LOAN AGREEMENT
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The
Loan
Agreement is hereby amended as follows:
1.1. Letters
of Credit.
Section
1.2.1 is amended in its entirety to read as follows:
"1.2.1 Issuance
of Letters of Credit and Letter of Credit Guaranties.
Lender
agrees, for so long as no Default or Event of Default exists and subject
to the
provisions of Section 10 below, to issue its, or cause to be issued its
Affiliate's, Letters of Credit and Letter of Credit Guaranties, as requested
by
Borrower, provided that (a) the Letter of Credit Amount at any time shall
not
exceed $8,500,000 and (b) without Lender's consent in each instance, no Letter
of Credit or Letter of Credit Guaranty may have an expiration date that is
after
the last day of the Original Term or the then applicable Renewal Term. Any
amounts paid by Lender under any Letter of Credit Guaranty or in connection
with
any Letter of Credit shall be treated as Revolver Loans, shall be secured
by all
of the Collateral and shall bear interest and be payable at the same rate
and in
the same manner as the Revolver Loans."
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.
[Signatures
Begin on the Next Page]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
and delivered on the date first above written.
| BORROWER: | LENDER: | ||
| CHAUTAUQUA AIRLINES, INC | BANK OF AMERICA, N.A. | ||
| ( successor by assignment to Fleet Capital Corporation) | |||
| /s/ Xxxxxx X. Xxxxxx | /s/ Xxxxxx X. Xxxxxx | ||
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| Name:
Xxxxxx X.
Xxxxxx Title: Executive Vice President & Chief Financial Officer |
Name:
Xxxxxx X.
Xxxxxx Title: Senior Vice President |
