EXHIBIT
4.40


 


ASSIGNMENT AGREEMENT


 


This
Assignment Agreement (this “Assignment Agreement”) between Fifth Third Bank, an
Ohio banking corporation (the “Assignor”), and The Huntington National Bank, a
national banking association (the “Assignee”), is dated effective as of March 24,
2005 (the “Effective Date”). The parties hereto agree as follows:


 


1.                                       Preliminary Statement.  The
Assignor is a party to an Amended and Restated Credit Agreement dated May 28,
2004, by and among AirNet Systems, Inc., an Ohio corporation, The
Huntington National Bank, a national banking association, as Administrative
Agent for and on behalf of the lenders (the “Lenders”) from time to time party
thereto, and the Lenders (as amended, modified, renewed or extended from time
to time, the “Credit Agreement”). 
Capitalized terms used herein and not otherwise defined herein shall
have the meanings attributed to them in the Credit Agreement.


 


2.                                       Assignment and Assumption.  The
Assignor hereby sells and assigns to the Assignee, and the Assignee hereby
purchases and assumes from the Assignor, an interest in and to the Assignor’s
rights and obligations under the Credit Agreement and the other Loan Documents,
such that after giving effect to such assignment the Assignee shall have
purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and
obligations under the Credit Agreement and the other Loan Documents relating to
the facilities listed in Item 3 of Schedule 1.  The Revolving Commitment and Outstanding
Revolving Credit Exposure purchased by the Assignee hereunder is set forth in
Item 4 of Schedule 1.


 


3.                                       Payment Obligations.  In
consideration for the sale and assignment hereunder, the Assignee shall pay the
Assignor, on the Effective Date, the amount agreed to by the Assignor and the
Assignee.  On and after the Effective
Date, the Assignee shall be entitled to receive all payments of principal,
interest, Reimbursement Obligations and fees with respect to the interest assigned
hereby.  The Assignee will promptly remit
to the Assignor any interest on Loans and fees received from the Administrative
Agent which relate to the portion of the interest assigned to the Assignee
hereunder and not previously paid by the Assignee to the Assignor.  In the event that either party hereto
receives any payment to which the other party hereto is entitled under this
Assignment Agreement, then the party receiving such amount shall promptly remit
it to the other party hereto.


 


4.                                       Assignment Fee.  No
assignment fee shall be required to be paid to the Administrative Agent in
connection with this Assignment Agreement.


 


5.                                       Representations of the Assignor; Limitations
on the Assignor’s Liability.  The Assignor represents and warrants that (i) it
is the legal and beneficial owner of the interest being assigned by it
hereunder, (ii) such interest is free and clear of any adverse claim
created by the Assignor and (iii) the execution and delivery of this
Assignment Agreement by the Assignor is duly authorized.  It is understood and agreed that the
assignment and assumption hereunder are made without recourse to the Assignor
and that the Assignor makes no other representation or warranty of any kind to
the Assignee.  Neither the Assignor nor
any of its officers, directors, employees, agents or attorneys shall be
responsible for (i) the due execution, legality, validity, enforceability,
genuineness, sufficiency or collectibility of any Loan Document, (ii) any
representation, warranty or statement made in or in connection with any of the
Loan Documents, (iii) the financial condition or creditworthiness of the
Borrower or any guarantor, (iv) the performance of or compliance with any
of the terms or provisions of any of the Loan Documents, (v) inspecting
any of the property, books or records of the Borrower, or (vi) any
mistake, error of judgment, or action taken or omitted to be taken in
connection with the Loans or the Loan Documents.


 


6.                                       Representations and Undertakings of the
Assignee.  The Assignee (i) confirms that it has
received a copy of the Credit Agreement, together with copies of the financial
statements requested by the Assignee and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Assignment Agreement, (ii) agrees that it will,
independently and without reliance upon the Administrative Agent, the Assignor
or any other Lender and based on such documents and information at it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Loan Documents, (iii) appoints and
authorizes the Administrative Agent to take such action as agent on its behalf
and to exercise such powers under the Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto, (iv) confirms that the execution and
delivery of this Assignment Agreement by the Assignee is duly authorized, (v) agrees
that it will perform in accordance with their terms all of the obligations
which by the terms of the Loan Documents are required to be performed by it as
a Lender, (vi) confirms that none of the funds, monies, assets or other
consideration being used to make the purchase and assumption hereunder are “plan
assets” as defined under ERISA and that its rights, benefits and interests in
and under the Loan Documents will not be “plan assets” under ERISA, (vii) agrees
to indemnify and hold the Assignor harmless against all losses, costs and
expenses (including reasonable attorneys’ fees) and liabilities incurred by the
Assignor in


 





















 


connection with or arising in any manner from
the Assignee’s non-performance of the obligations assumed under this Assignment
Agreement, and (viii) if applicable, attaches the forms prescribed by the
Internal Revenue Service of the United States certifying that the Assignee is
entitled to receive payments under the Loan Documents without deduction or
withholding of any United States federal income taxes.


 


7.                                       Governing Law.  This
Assignment Agreement shall be governed by the internal law, and not the law of
conflicts, of the State of Ohio.


 


8.                                       Notices.  Notices shall be given under
this Assignment Agreement in the manner set forth in the Credit Agreement.


 


9.                                       Counterparts; Delivery by Facsimile.  This
Assignment Agreement may be executed in counterparts.  Transmission by facsimile of an executed
counterpart of this Assignment Agreement shall be deemed to constitute due and
sufficient delivery of such counterpart and such facsimile shall be deemed to
be an original counterpart of this Assignment Agreement.


 


IN WITNESS WHEREOF, the duly authorized officers of
the parties hereto have executed this Assignment Agreement by executing Schedule 1
hereto as of the date first above written.


 


	
   

  	
  ASSIGNOR:

  
	
   

  	
   

  
	
   

  	
  Fifth Third Bank,

  an Ohio banking corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kristie L. Nicolosi

  
	
   

  	
   

  	
  Kristie L. Nicolosi

  
	
   

  	
  Its:

  	
  Assistant Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ASSIGNEE:

  
	
   

  	
   

  
	
   

  	
  The Huntington National
  Bank

  a national banking association

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John M. Luehmann

  
	
   

  	
   

  	
  John M. Luehmann

  
	
   

  	
  Its:

  	
  Vice President

  
				



 


 


[signatures continue on following page]


 





















 


	
  Accepted and Agreed:

  	
   

  
	
   

  	
   

  
	
  AirNet Systems, Inc.,

  an Ohio corporation

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
    /s/ Joel E. Biggerstaff

  	
   

  
	
   

  	
    Joel E. Biggerstaff

  
	
  Title:

  	
    President & Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  The Huntington National
  Bank,

  a national banking association, as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
    /s/ Steven P. Clemens

  	
   

  
	
   

  	
    Steven P. Clemens

  
	
  Title:

  	
    Vice President, Director-Loan Syndications

  
	
   

  	
   

  
	
   

  	
   

  
	
  JPMorgan Chase Bank,

  a national banking association

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
    /s/ Warren Bebinger

  	
   

  
	
   

  	
    Warren Bebinger

  
	
  Its:

  	
    First Vice President

  
				



 





















 


SCHEDULE 1


to Assignment Agreement


 


	
  1.

  	
  Date of Credit Agreement:

  	
  May 28, 2004

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Date of Assignment
  Agreement:

  	
  March 24, 2005

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Amounts (as of Date of Item
  2 above):

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Outstanding

  Revolving

  Credit Exposure

  	
   

  	
  Term

  Loans

  	
   

  
	
   

  	
  a.

  	
  Assignee’s percentage of each credit
  facility purchased under the Assignment Agreement

  	
   

  	
  62.5

  	
  %

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  b.

  	
  Amount of
  each credit facility purchased under the Assignment Agreement

  	
   

  	
  $

  	
  18,750,000

  	
   

  	
  0

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Assignee’s Outstanding
  Revolving Credit Exposure purchased hereunder:

  	
   

  	
  $

  	
  12,293,225.24

  	
   

  	
  0

  	
  %