**EXHIBIT4.40**

 

**ASSIGNMENT AGREEMENT**

 

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

 

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

 

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

 

3.                                       Payment Obligations.  Inconsideration for the sale and assignment hereunder, the Assignee shall pay theAssignor, on the Effective Date, the amount agreed to by the Assignor and theAssignee.  On and after the EffectiveDate, the Assignee shall be entitled to receive all payments of principal,interest, Reimbursement Obligations and fees with respect to the interest assignedhereby.  The Assignee will promptly remitto the Assignor any interest on Loans and fees received from the AdministrativeAgent which relate to the portion of the interest assigned to the Assigneehereunder and not previously paid by the Assignee to the Assignor.  In the event that either party heretoreceives any payment to which the other party hereto is entitled under thisAssignment Agreement, then the party receiving such amount shall promptly remitit to the other party hereto.

 

4.                                       Assignment Fee.  Noassignment fee shall be required to be paid to the Administrative Agent inconnection with this Assignment Agreement.

 

5.                                       Representations of the Assignor; Limitationson the Assignor’s Liability.  The Assignor represents and warrants that (i) itis the legal and beneficial owner of the interest being assigned by ithereunder, (ii) such interest is free and clear of any adverse claimcreated by the Assignor and (iii) the execution and delivery of thisAssignment Agreement by the Assignor is duly authorized.  It is understood and agreed that theassignment and assumption hereunder are made without recourse to the Assignorand that the Assignor makes no other representation or warranty of any kind tothe Assignee.  Neither the Assignor norany of its officers, directors, employees, agents or attorneys shall beresponsible for (i) the due execution, legality, validity, enforceability,genuineness, sufficiency or collectibility of any Loan Document, (ii) anyrepresentation, warranty or statement made in or in connection with any of theLoan Documents, (iii) the financial condition or creditworthiness of theBorrower or any guarantor, (iv) the performance of or compliance with anyof the terms or provisions of any of the Loan Documents, (v) inspectingany of the property, books or records of the Borrower, or (vi) anymistake, error of judgment, or action taken or omitted to be taken inconnection with the Loans or the Loan Documents.

 

6.                                       Representations and Undertakings of theAssignee.  The Assignee (i) confirms that it hasreceived a copy of the Credit Agreement, together with copies of the financialstatements requested by the Assignee and such other documents and informationas it has deemed appropriate to make its own credit analysis and decision toenter into this Assignment Agreement, (ii) agrees that it will,independently and without reliance upon the Administrative Agent, the Assignoror any other Lender and based on such documents and information at it shalldeem appropriate at the time, continue to make its own credit decisions intaking or not taking action under the Loan Documents, (iii) appoints andauthorizes the Administrative Agent to take such action as agent on its behalfand to exercise such powers under the Loan Documents as are delegated to theAdministrative Agent by the terms thereof, together with such powers as arereasonably incidental thereto, (iv) confirms that the execution anddelivery of this Assignment Agreement by the Assignee is duly authorized, (v) agreesthat it will perform in accordance with their terms all of the obligationswhich by the terms of the Loan Documents are required to be performed by it asa Lender, (vi) confirms that none of the funds, monies, assets or otherconsideration being used to make the purchase and assumption hereunder are “planassets” as defined under ERISA and that its rights, benefits and interests inand under the Loan Documents will not be “plan assets” under ERISA, (vii) agreesto indemnify and hold the Assignor harmless against all losses, costs andexpenses (including reasonable attorneys’ fees) and liabilities incurred by theAssignor in

 

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connection with or arising in any manner fromthe Assignee’s non-performance of the obligations assumed under this AssignmentAgreement, and (viii) if applicable, attaches the forms prescribed by theInternal Revenue Service of the United States certifying that the Assignee isentitled to receive payments under the Loan Documents without deduction orwithholding of any United States federal income taxes.

 

7.                                       Governing Law.  ThisAssignment Agreement shall be governed by the internal law, and not the law ofconflicts, of the State of Ohio.

 

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

 

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

 

IN WITNESS WHEREOF, the duly authorized officers ofthe parties hereto have executed this Assignment Agreement by executing Schedule 1hereto 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]

 

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| 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                         |
|                                                                          |                                                          |  |  |

 

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**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               | % |
|            |                                                                             |                                                                                              |            |                                             |            |                 |  |  |  |  |

 

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