CONSENT AND RELEASE AGREEMENT OF BORROWER PARTIES
THIS CONSENT AND RELEASE AGREEMENT OF BORROWER
PARTIES (this “Agreement”) is made and entered
into as of October 2, 2020 (the “Effective Date”), by AeroCentury
Corp., a Delaware corporation (“Borrower”), each of the
“Guarantor Subsidiaries” named in the signature blocks
to this Agreement (“Guarantor
Subsidiaries”, and together with Borrower,
collectively the “Borrower
Parties”), in favor of MUFG Union Bank, N.A.
(“MUFG”), Umpqua
Bank (“Umpqua”),
Zions Bancorporation, N.A. (fka ZB, N.A.) dba California Bank &
Trust (“Zions”),
U.S. Bank National Association (“U.S. Bank”), Columbia State Bank
(“Columbia”),
and MUFG Bank, Ltd. (“MUFG
Bank”) and, with respect to Section 1 below, Buyer and New
Agent (as each such term is defined hereinafter). MUFG (solely in
its capacity as a lender, and not in its capacity as administrative
agent for the Lenders), Umpqua, Zions, U.S. Bank and Columbia are
sometimes referred to herein individually as a “Lender” and collectively as the
“Lenders”. The
Lenders and MUFG Bank are sometimes referred to herein individually
as a “Seller”
and collectively as the “Sellers”. MUFG, solely in its
capacity as the existing administrative agent for the Lenders, is
sometimes referred to herein as “Agent.”
This
Agreement is being executed and delivered in connection with that
certain Loan Purchase and Sale Agreement dated as of October
2, 2020 by and
among Drake Asset Management Jersey Limited, a company incorporated
in Jersey (registered number 127856) whose registered office is at
IFC5, St Helier, Jersey JE1 1ST (“Buyer”), UMB Bank, N.A., a
national banking association formed under the laws of the United
States of America (“New
Agent”), Agent and the Sellers (the
“Loan Purchase
Agreement”). Capitalized terms used but not defined in
this Agreement shall have the meanings assigned thereto in the Loan
Purchase Agreement.
IN
ORDER TO INDUCE Agent and Sellers to enter into and to close under
the Loan Purchase Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, each Borrower Party acknowledges and agrees as
follows:
1. Waiver of
Assignment Restrictions. Notwithstanding anything in the
Loan Documents or the documents giving rise to the MUFG Bank Swap
Termination Value to the contrary (“Swap Documents”), at such time as
the Loan Purchase Agreement becomes effective upon the satisfaction
of the conditions precedent to effectiveness of the Loan Purchase
Agreement, any and all restrictions contained in the Loan Documents
or in the Swap Documents on the sale or assignment of Agent’s
or any Lender’s interest in the obligations arising under the
Loan Documents (including any restrictions in Section 12.8.2 of the
Credit Agreement) or the Swap Documents shall be deemed waived with
respect to such sale and/or assignment by Agent and the Lenders
pursuant to the Loan Purchase Agreement, and the Loan Documents and
the Swap Documents shall be deemed amended to permit Agent and/or
any or all Sellers to sell or assign its respective Note and any
other interest in the Loan Documents and/or the Swap Documents to
the Buyer pursuant to the Loan Purchase Agreement without the
consent of any Borrower Party (subject to any right Agent may have
under the Loan Documents to consent to any such transfer or
condition such transfer on payment of any assignment fee required
pursuant to the Loan Documents).
2. Loan Status.
Each Borrower Party hereby confirms to Agent and Sellers and their
respective successors and assigns that neither Agent nor any Seller
has breached any of its obligations under the Loan, the Loan
Documents and the MUFG Bank Swap Termination Value, as applicable,
and there exists no claim, counterclaim, defense or offset of any
kind relating to the Loan, the Loan Documents or the MUFG Bank Swap
Termination Value.
3. Consent.
Each Borrower Party hereby consents to the Loan Purchase Agreement
and the consummation of all transactions provided for therein
(without the necessity for any further consents or approvals of any
Borrower Party). Without limiting the generality of the preceding
sentence, each Borrower Party acknowledges and agrees that (without
any further consents or approvals of any Borrower Party), in
accordance with the Loan Purchase Agreement and all documents
delivered pursuant thereto: (i) Agent and each Seller shall have
the right to transfer and assigned to Buyer all of such
Seller’s right, title and interest in and to the Loan
Documents and the Swap Documents; (ii) Agent shall have the
right to resign as administrative agent for the Lenders, and Buyer
shall have the right to designate and appoint New Agent as the new
administrative agent for the Lenders; (iii) from and after the
Closing Date, Buyer shall be entitled to receive all amounts due
under the Loan and the Loan Documents as and when due from the
Borrower Parties, and the Borrower Parties will deliver all such
amounts to Buyer; (iv) from and after the Closing Date, Buyer
shall have assumed all of Sellers’ duties and obligations
under the Loan Documents and the Swap Documents and New Agent shall
have assumed all of Agent’s duties and obligations as
administrative agent for the “Lenders” under the Loan
Documents, Agent and Sellers shall be thereafter relieved of all
further duties and obligations under the Loan Documents and the
Swap Documents, and the Borrower Parties will look solely to Buyer
or New Agent (as applicable) to perform the duties and obligations
of Agent and the Sellers under the Loan Documents and the Swap
Documents. Borrower Parties acknowledge that they have introduced
Buyer to Agent and Sellers and have requested that Agent and
Sellers enter into the Loan Purchase Agreement, and that Borrower
Parties have a financial interest in the transactions described in
the Loan Purchase Agreement and expect to derive financial and
other benefit therefrom.
4. Release.
Borrower and each Guarantor Subsidiary, for and on behalf of itself
and its legal representatives, successors and assigns
(collectively, the “Releasing
Parties”), each does hereby waive, release, relinquish
and forever discharge Agent and each Seller and their past and
present directors, officers, agents, employees, parents,
subsidiaries, affiliates, insurers, attorneys, representatives and
assigns, and each and all thereof (collectively, the
“Released
Parties”), of and from any and all manner of action or
causes of action, suits, claims, demands, judgments, damages,
levies and executions of whatsoever kind, nature and/or description
arising on or before the Effective Date, including any claims,
losses, costs or damages, including compensatory and punitive
damages, in each case whether known or unknown, liquidated or
unliquidated, fixed or contingent, direct or indirect, which each
Releasing Party ever had or now has or may claim to have against
any of the Released Parties, with respect to any matter whatsoever,
including the Loan Purchase Agreement, the Loan Documents, the Swap
Documents, the administration of the Loan, and the negotiations
relating to this Agreement, arising on or before the Effective Date
and, subject to the occurrence of the Closing, the Closing Date
(collectively, “Claims”). Each Releasing Party
acknowledges that it is aware that it may discover facts different
from or in addition to those it now knows or believes to be true
with respect to the Claims, and each agrees that the release of
this Agreement is and will remain in effect in all respects as a
complete and general release as to all matters released in this
Agreement, notwithstanding any such different or additional
facts.
Each
Releasing Party acknowledges that it has been informed of its
rights under and the provisions of Section 1542 of the Civil
Code of the State of California and expressly waives and
relinquishes all rights and benefits that it has or may have had
under such statute, which reads as follows:
A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR
RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER
FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT IF KNOWN BY
HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT
WITH THE DEBTOR OR RELEASED PARTY.
EACH
RELEASING PARTY UNDERSTANDS THE SIGNIFICANCE AND CONSEQUENCES OF
THE FOREGOING WAIVER OF SECTION 1542, AND ASSUMES FULL
RESPONSIBILITY FOR ANY INJURIES, DAMAGES OR LOSSES THAT IT MAY
INCUR AS A RESULT OF THE EXECUTION OF THIS AGREEMENT.
Each of
the Releasing Parties represents and warrants that it (i) has not
previously assigned or transferred in any manner, or purported to
have assigned or transferred in any manner, any interest in any of
the claims or rights released or waived by it in this Agreement;
and (ii) has the full right and authority to enter into this
Agreement.
5. Entire
Agreement. This Agreement contains the entire understanding
and agreement between the parties to this Agreement relating to the
subject matter of this Agreement and supersedes and replaces any
and all prior negotiations, discussions, understanding or
agreements whether written or oral and all other writings with
respect to the subject matter of this Agreement.
6. Merger and
Integration, Superseding Effect. This Agreement embodies the
entire agreement and understanding between the parties to this
Agreement with respect to the subject matter of this Agreement, and
supersedes and has merged into it all prior oral and written
negotiations and agreements of the same subject matter by and
between the parties hereto.
7. Choice of
Law/Venue. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK INCLUDING SECTION 5-1401 OF THE
NEW YORK GENERAL OBLIGATIONS LAWS WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. Any action arising out of this Agreement shall be
brought in accordance with the venue provisions of the Loan
Documents. Sections 12.14 and 12.15 of the Credit Agreement
are incorporated herein and made applicable hereto by this
reference.
8. Tax Liabilities and
Advice of Counsel. Each Borrower Party acknowledges and
agrees that it has received the advice of independent counsel
selected by it, or the opportunity to obtain such advice, before
entering into this Agreement, and has not relied upon Agent, any
Seller or any of their officers, directors, employees, agents or
attorneys concerning any aspect of the transactions contemplated by
this Agreement. Each Borrower Party acknowledges and agrees that
Agent or a Seller may be required to and may record and report any
forgiven indebtedness to all applicable private, public,
quasi-governmental and governmental entities or agencies in
accordance with all applicable laws, codes, rules and regulations,
including filing a Form 1099 with the United States Internal
Revenue Service. Each Borrower Party acknowledges that there may be
tax consequences to it arising out of the transactions contemplated
by this Agreement and by the Loan Purchase Agreement, and that each
is obligated to pay all taxes of any kind due by it as the result
of any transactions contemplated by this Agreement or the Loan
Purchase Agreement, and each Borrower Party shall jointly and
severally indemnify each Seller and save each Seller harmless for
payment or responsibility for any such taxes, fees, penalties or
interest.
9. No Impairment; No
Novation. Except as specifically provided herein, the Loan
Documents and the Swap Documents shall each remain unaffected by
this Agreement and all such documents shall remain in full force
and effect. Nothing in this Agreement shall impair the liens and/or
security interests created by any mortgage or any other security
interest of Agent or any Seller. The execution and delivery of this
Agreement shall not constitute a novation of the Loan, the Loan
Documents or the Swap Documents.
10. No Waiver or
Modification. The parties agree that no waiver, amendment or
modification of any of the terms of this Agreement shall be
effective unless in writing and signed by the parties
hereto.
11. Attorneys’
Fees and Costs. In any action or other proceeding arising
out of this Agreement, the prevailing party shall be entitled to
recover from the non-prevailing party, in addition to all other
relief provided by law or equity, all costs and expenses incurred
by the prevailing party, including attorneys’ fees and
costs.
12. Successors and
Assigns. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and each of their respective
representatives, heirs, successors and assigns.
13. Notices. Any
notices pursuant to this Agreement shall be given in the manner
provided for in the Credit Agreement.
14. Organization and
Authority. Each Borrower Party represents and warrants to
Agent and Lenders that (a) such party is duly organized, validly
existing and in good standing under the laws of the jurisdiction in
which it was organized or incorporated, (b) such party has all
necessary approvals, whether internal, third party or otherwise,
and full right, power and authority to execute and deliver this
Agreement and to perform its obligations under this Agreement, and
(iii) this Agreement constitutes a legal, valid and binding
obligation of such party, enforceable in accordance with this
Agreement, except to the extent that enforceability of the
obligations may be subject to bankruptcy, insolvency, moratorium
and other similar laws affecting the rights of creditors generally
and to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at
law).
15. Rules
of Construction. Words used in this Agreement in the
singular, where the context so permits, shall be deemed to include
the plural and vice versa. When used in this Agreement,
“include” means
“include but are not limited to”, “includes” means “includes
but is not limited to” and “including” means “including,
but not limited to”. Section headings in this Agreement are
included for convenience of reference only and shall not constitute
a part of this Agreement for any other purpose.
[Signatures
on Following Pages]
IN
WITNESS WHEREOF, each Borrower Party caused this Consent and
Release Agreement of Borrower Parties to be executed and delivered
by their duly authorized officers as of the date first above
written.
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“Borrower”
AEROCENTURY
CORP.,
a
Delaware corporation
By: _________________________________
Name: _________________________________
Title: _________________________________
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“Guarantor
Subsidiaries”
JETFLEET
HOLDING CORP.,
a
California corporation
By: _________________________________
Name: _________________________________T
itle: _________________________________
|
|
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JETFLEET
MANAGEMENT CORP.,
a
California corporation
By: _________________________________
Name: _________________________________
Title: _________________________________
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AMENDMENT NO. 1 TO
FOURTH
AMENDED AND RESTATED
LOAN
AND SECURITY AGREEMENT
AMONG
AEROCENTURY CORP.,
as
Borrower
DRAKE ASSET MANAGEMENT JERSEY LIMITED,
as
Lender
and
UMB BANK, N.A.,
as
Administrative Agent
October 30, 2020
This
Amendment No. 1 to Fourth Amended and Restated Loan and Security
Agreement (this “Amendment”), dated as of October
30, 2020 (the “Effective
Date”), is entered into by and between AeroCentury
Corp., a Delaware corporation, as borrower (“Borrower”), Drake Asset Management
Jersey Limited, as lender (“Lender”) and UMB Bank, N.A.
(successor-in-interest to MUFG Union Bank, N.A.), as administrative
agent (in such capacity, “Agent”). Each of the Borrower,
Lender and the Agent are referred to herein as a
“Party” and
collectively as the “Parties”.
WHEREAS, Borrower, Lender and Agent are
parties to that certain Fourth Amended and Restated Loan and
Security Agreement dated as of May 1, 2020 (as amended,
supplemented or otherwise modified from time to time prior to the
date hereof, the “Loan
Agreement”);
WHEREAS, MUFG Union Bank, N.A., as a
seller, a lender and as Agent, and Umpqua Bank, Zions
Bancorporation, N.A. (fka ZB, N.A.) dba California Bank &
Trust, U.S. Bank National Association and Columbia State Bank, as
sellers and as lenders (collectively, the “Existing Lenders”), MUFG Bank,
Ltd., as swap contract counterparty (“MUFG Ltd.”), Lender, as buyer, and
UMB Bank, N.A., as new agent, have entered into that certain Loan
Purchase and Sale Agreement dated as of October 2, 2020 (the
“LPA”), pursuant
to which, among other things, Lender acquired 100% of the Existing
Lenders’ respective interests in the Loans and the Loan
Documents and 100% of MUFG Ltd.’s interest in the MUFG Bank
Swap Termination Value; and
WHEREAS, Borrower, Lender and Agent
desire to enter into this Amendment to delete certain references in
the Loan Agreement to the “Restricted Account” and to
make certain other modifications described herein on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the
premises and other good and sufficient consideration which is
hereby acknowledged, the Parties hereto hereby agree as
follows:
Section
1. Definitions. Unless the context
otherwise requires, capitalized terms used herein and not otherwise
defined herein shall have the meanings set forth in the Loan
Agreement for all purposes of this Amendment, and this Amendment
shall be interpreted in accordance with the rules of construction
set forth in Section 1.4 of the Loan Agreement.
Section
2. Amendments to Loan Agreement.
The Parties acknowledge that the Loan Agreement shall be and is
hereby amended as follows:
2.1 Section 1.1 of the
Loan Agreement is hereby amended to delete the definition of each
of “Exclusivity Milestone”, “LOI”,
“Restricted Account”, “Revised Transaction
Letter”, “Second Amendment”, “Second ISDA
Notice”, “Strategic Alternative”,
“Strategic Alternative Closing Milestone”,
“Strategic Alternative Event of Default” and
“Strategic Alternative LOI Milestone” in its
entirety.
2.2 The following new
definition is added in Section 1.1 of the Loan Agreement in
alphabetical order as follows:
“‘Kenyan
Aircraft Collateral’ means the Equipment identified on
Schedule 1.1c hereto as bearing manufacturer’s serial
number 406 and 407, respectively, and their respective engines and
any Collateral Documents related thereto.”
2.3 The definition of
“Collateral” in Section 1.1 of the Loan Agreement is
hereby amended by adding the following to the end thereof:
“excluding the Kenyan Aircraft
Collateral.”
2.4 The definition of
“Reference Rate” in Section 1.1 of the Loan Agreement
is hereby amended by deleting the words “MUFG Union Bank,
N.A.” in each instance it appears and inserting the words
“UMB Bank, N.A.” in lieu thereof.
2.5 The definition of
“Unrestricted Cash” in Section 1.1 of the Loan
Agreement is hereby amended to delete the words “other than
the Restricted Account” therefrom.
2.6 The text of Clause
(d) of Section 2.2.1 of the Loan Agreement is hereby amended and
restated in its entirety as follows:
(d) Deferred Interest.
Notwithstanding anything herein to the contrary, the cash component
of the interest payments commencing with the month of March 2020
and continuing on each consecutive month thereafter will be
deferred, capitalized and added to the principal balance of the
Loans on each respective due date, until such time as
repaid.
2.7 Section 2.2.2 of
the Loan Agreement is hereby amended by deleting the proviso
appearing therein in its entirety.
2.8 Section 2.5 of the
Loan Agreement is hereby amended by deleting the first sentence in
its entirety and inserting the following in lieu
thereof:
If any installment of
principal or interest or any fee or cost or other amount payable
under any Loan Document to Agent or any Lender is not paid when due
(after giving effect to any applicable grace
periods),
it shall thereafter bear interest at the fluctuating rate per annum
at all times equal to the Default Rate, to the fullest extent
permitted by Applicable Law (the “Late Fee”).
2.9 Section 2.15 of the
Loan Agreement is hereby amended by deleting the words
“(including the Restricted Account)”
therefrom.
2.10 The
text of Section 2.18 of the Loan Agreement is hereby deleted in its
entirety and the word “[Reserved]” is inserted in lieu
thereof.
2.11 Section
3.2 of the Loan Agreement is hereby amended by deleting the words
“MUFG UNION BANK, N.A.” and inserting the words
“UMB BANK, N.A.” in lieu thereof.
2.12 Section
3.3.5 of the Loan Agreement is hereby amended by deleting the words
“(other than the Restricted Account, which shall be governed
by the terms of Section 2.18)” therefrom.
2.13 Section
3.8 of the Loan Agreement is hereby amended by deleting the words
“the Restricted Account” and inserting the words
“any deposit account with respect to which an Account Control
Agreement has been executed and delivered with the relevant bank
and Borrower in favor of Agent” in lieu thereof.
2.14 Section
4.1.13 of the Loan Agreement is hereby amended by deleting the
words “(other than the Restricted Account)”
therefrom.
2.15 The
text of Section 6.22 of the Loan Agreement is hereby deleted in its
entirety and the word “[Reserved]” is inserted in lieu
thereof.
2.16 Section
7.20 of the Loan Agreement is hereby amended by deleting the words
“the Restricted Account” and inserting the word
“[Reserved]” in lieu thereof.
2.17 Section
7.21.2 of the Loan Agreement is hereby amended and restated in its
entirety as follows:
7.21.2
Lease Amendments. Borrower
shall not enter into any amendment of, or waiver or consent under,
any Lease involving a modification of lease payments, any reduction
in, or waiver or deferral of, Rent, a modification to any residual
value guaranty, any modification that adversely affects the
Collateral (or any portion thereof) or the rights and interests of
the Lenders and/or Agent in the applicable Equipment or Lease, any
reduction of any amounts payable to any of the Lenders and/or Agent
under any indemnity, any change to the state of registration of the
applicable Aircraft, the term of such Lease or the return
conditions of the Equipment subject thereto (each a
“Material Lease
Amendment”), except with the prior written approval of
Agent (such approval not to be unreasonably withheld or delayed)
and Requisite Lenders (in their sole discretion). In addition, the
Borrower shall provide written notice to the Agent within three (3)
Business Days of any amendment of, or waiver or consent under, any
Lease which does not constitute a Material Lease
Amendment.
2.18 Section
8.1.4 of the Loan Agreement is hereby amended by deleting the words
“setting forth in each case in comparative form the figures
for the corresponding periods in the previous year, and”
therefrom.
2.19 Section
8 of the Loan Agreement is hereby amended by adding the following
new Section 8.11 immediately following Section 8.10:
8.11 Information
and Reporting Requirements Generally. Notwithstanding
anything to the contrary set forth in this Section 8, until such
time as the Agent in its sole discretion notifies the Borrower in
writing to the contrary, the Borrower shall only be required to
satisfy the information and reporting requirements pursuant to
Sections 8.1.1, 8.1.3, 8.1.4, 8.1.5, 8.1.9, 8.1.10, 8.1.11, 8.1.12,
8.1.13, 8.1.14, 8.1.16, 8.2 (provided that the requirement of the
Borrower thereunder shall be to deliver bi-weekly reports), 8.3,
8.5, 8.7 (provided that the requirement of the Borrower thereunder
shall be to deliver monthly reports, and with respect to reports
due under Sections 8.3 and 8.7, such shall be due within 20
Business Days and 5 Business Days after the end of the calendar
month, respectively) and 8.10.
2.20 The
text of Section 9.1.18 of the Loan Agreement is hereby deleted in
its entirety and the word “[Reserved]” is inserted in
lieu thereof.
2.21 Section
12.7.1 of the Loan Agreement is hereby amended by deleting the
notice information in clause (b) and inserting the following notice
information in lieu thereof:
UMB
Bank, N.A.
6440 S. Millrock
Drive, Suite 400
Salt Lake
City, Utah 84121
Attention:
Corporate Trust Aviation
Email:
XXXXX@umb.com
2.22 Section
12.7.1 of the Loan Agreement is hereby further amended by adding
the following new clause (c) immediately following clause (b)
thereof:
(c)
If to Drake Asset
Management Jersey Limited, as Lender:
Drake
Asset Management Jersey Limited
IFC5,
St
Helier
Jersey
JE1
1ST
Attn:
The Directors
Email:
XXXXXXX
With a
copy to:
Falko
Regional Aircraft Limited
1
Bishop Square
St.
Albans Rd. West
Hatfield
AL10
9NE
Attn:
Sarah Dichlian
Email:
XXXXXXX
2.23 Section
12.16.1 of the Loan Agreement is hereby amended by deleting the
words by deleting the text “impose or waive the Late Fee in
connection with a Strategic Alternative Event of Default and
(z)” therefrom.
2.24 Exhibit
C of the Loan Agreement is hereby amended by deleting the words
“other than the Restricted Account” from paragraph 1
thereof.
Section
3. Conditions Precedent. The
effectiveness of this Amendment is subject to the following
conditions precedent having been complied with to the satisfaction
of or waived in writing by Agent on or
before the Effective Date (each document,
instrument, certificate, opinion or other paper referred to below
to be in form and substance reasonably satisfactory to Agent and,
unless otherwise specified, to be
dated the Effective Date):
3.1 This Amendment
shall have been duly executed and delivered by each of the Parties;
and
3.2 The Agent shall
have received a bringdown certificate from Borrower in relation to
its organizational documents, governing documents, incumbency
certificates and the other documentation contemplated by Section
4.1.1(b) of the Loan Agreement.
Section 4. Miscellaneous.
4.1 Specified Expenses. The Parties
hereby acknowledge that, pursuant to Section 10(b) of the LPA,
MUFG Union Bank, N.A. has agreed to pay (a) the fee due on the
Closing Date (as defined in the LPA) from AeroCentury Corp., as
borrower under the Loan Agreement, to B. Riley FBR, Inc. in
connection with the purchase and sale transaction under the LPA
(which fee is due pursuant to that certain engagement letter dated
October 8, 2019 between B. Riley FBR, Inc., and AeroCentury Corp.
(as amended pursuant to that certain Amendment No. 1 to
Engagement Letter Agreement dated May 1, 2020)), and (b) the fees
and expenses of Huron Consulting Services, Sheppard, Mullin,
Richter & Hampton LLP, MUFG’s FAA Counsel (as defined in
the LPA) and MUFG’s Retained Local Counsel (as defined in the
LPA), in each case subject to the occurrence of the Closing Date
(as defined in the LPA).
4.2 Representations and Warranties.
The representations and warranties of each of the Borrower
contained in this Amendment or any other Loan Document to which it
is a party shall be true and correct on and as of the Effective
Date as though made on and as of the Effective Date, except to the
extent that such representations and warranties relate solely to an
earlier date (in which case such representations and warranties
shall be correct on and as of such earlier date).
4.3 Waivers; Amendments. No term or
provision of this Amendment may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by
the Party or other person against whom enforcement of the change,
waiver, discharge or termination is sought; and any waiver of the
terms hereof shall be effective only in the specific instance and
for the specific purpose given. Except as expressly modified by
this Amendment, each of the Parties acknowledges and agrees that
all terms and conditions of the Loan Agreement and the other Loan
Documents shall remain in full force and effect in all respects.
From and after the date hereof, the Loan Agreement (and any
reference contained therein in any other Loan Document) shall be
read and construed to mean the Loan Agreement as amended by this
Amendment.
4.4 Severability. Any provision of
this Amendment which is prohibited or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other
jurisdiction.
4.5 Headings. The headings of the
various sections herein are for convenience of reference only and
shall not define or limit any of the terms or provisions
hereof.
4.6 GOVERNING LAW; VENUE. EXCEPT AS
OTHERWISE EXPRESSLY PROVIDED HEREIN OR IN ANY OTHER LOAN DOCUMENTS,
IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY
AND PERFORMANCE, THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS AND
THE OBLIGATIONS ARISING HEREUNDER AND THEREUNDER SHALL BE GOVERNED
BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN
SUCH STATE, WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING
CONFLICTS OF LAWS (OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW), AND ANY APPLICABLE LAWS OF THE UNITED
STATES OF AMERICA. BORROWER HEREBY CONSENTS AND AGREES, PURSUANT TO
SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, THAT THE
STATE OR FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, NEW YORK
SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS
OR DISPUTES BETWEEN BORROWER AND AGENT OR ANY CREDIT FACILITY
LENDER PERTAINING TO AMENDMENT OR TO ANY MATTER ARISING OUT OF OR
RELATED TO THIS AMENDMENT; PROVIDED, THAT AGENT AND
BORROWER ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO
BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK, NEW YORK; AND
FURTHER PROVIDED, THAT NOTHING IN THIS AMENDMENT SHALL BE DEEMED OR
OPERATE TO PRECLUDE AGENT OR ANY CREDIT FACILITY LENDER FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER
JURISDICTION TO COLLECT THE OBLIGATIONS, TO REALIZE ON THE
COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO ENFORCE
A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH AGENT OR CREDIT
FACILITY LENDER. BORROWER EXPRESSLY SUBMITS AND CONSENTS TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND
BORROWER HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON
LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR
EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. BORROWER
HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE
OF SUCH SUMMONS, COMPLAINTS AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO BORROWER AT THE ADDRESS
SET FORTH IN SECTION 12.7.1 OF THE LOAN AGREEMENT AND THAT SERVICE
SO MADE SHALL BE DEEMED COMPLETED UPON THE BORROWER’S ACTUAL
RECEIPT THEREOF.
4.7 WAIVER OF JURY TRIAL. TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HERETO
HEREBY WAIVE TRIAL BY JURY FOR ANY ACTION, SUIT, JUDICIAL
REFERENCE, OR OTHER PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THIS AMENDMENT, THE
OTHER LOAN DOCUMENTS AND/OR THE RELATIONSHIP ESTABLISHED BETWEEN
THE PARTIES HERETO IN CONNECTION WITH THIS AMENDMENT OR AMONG THE
PARTIES TO THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
4.8 Counterpart Form. This
Amendment may be executed by the Parties hereto in separate
counterparts (or upon separate signature pages bound together into
one or more counterparts), each of which when so executed and
delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
4.9 Entire Agreement. This
Amendment constitutes the entire agreement of the Parties hereto
with respect to the subject matter hereof, and all prior or
contemporaneous understandings or agreements, whether written or
oral, among any of the Parties hereto with respect to such subject
matter are hereby superseded in their entireties. This Amendment
shall be a Loan Document.
[Signature page
follows]
[Amendment
No. 1 to Fourth Amended and Restated Loan Agreement]
IN WITNESS WHEREOF, each of the
undersigned Parties has caused this Amendment to be executed and
delivered by a duly authorized officer as of the day and year first
written above.
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AEROCENTURY CORP., as
Borrower
By: /s/
Harold M. Lyons
Name:
Harold M. Lyons
Title:
SVP Finance
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UMB BANK, N.A., as Agent
By: /s/
Glenn Shaw
Name:
Glenn
Shaw
Title:
Vice President
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DRAKE ASSET MANAGEMENT JERSEY LIMITED,
as Lender
By: /s/
Oliver Morris
Name:
Oliver Morris
Title:
Director
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Signature
Page to Amendment No. 1 to Fourth Amended and Restated Loan
Agreement
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