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Exhibit 4.05(h)
[Warehouse Facility]
EIGHTH AMENDMENT
EIGHTH AMENDMENT, dated as of November 18, 1999 (the
"Amendment"), to the Credit Agreement, dated as of October 6, 1998, as amended
by the Amendment dated as of March 26, 1999, the Second Amendment dated as of
April 28, 1999, the Third Amendment dated as of August 19, 1999, the Fourth
Amendment dated as of October 4, 1999, Fifth Amendment dated as of October 21,
1999, the Sixth Amendment dated as of October 4, 1999 and the Seventh Amendment
dated as of November 4, 1999 (as so amended, the "Credit Agreement"), made by
and among FIRST SECURITY BANK, NATIONAL ASSOCIATION, a national banking
association not in its individual capacity but solely as trustee on behalf of
that certain trust created under the Trust Agreement (22222), dated as of
September 28, 1998, between First Security Bank, National Association and
Aircraft 22222, Inc., a Delaware corporation (together with any successor
Qualified Trustee, the "Initial Borrower"), FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity but solely as trustee on behalf of
that certain trust created under the Trust Agreement (53015) dated as of August
28, 1998 by and between First Security Bank, National Association and Aircraft
53015, Inc., FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its individual
capacity but solely as trustee on behalf of that certain trust created under the
Trust Agreement (24837) dated as of October 30, 1998 by and between First
Security Bank, National Association and Aircraft 24837, Inc., FIRST SECURITY
BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as trustee
under the Amended and Restated Trust Agreement (347) dated as of October 30,
1998 by and between First Security Bank, National Association and Aircraft 347,
Inc., FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its individual capacity
but solely as trustee on behalf of that trust created by Trust Agreement (23377)
dated as of June 24, 1998 by and between First Security Bank, National
Association and Aircraft 23377, Inc., FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity but solely as trustee on behalf of that trust
created by Trust Agreement (23830) dated as of July 10, 1998 by and between
First Security Bank, National Association and Aircraft 23830, Inc., WILMINGTON
TRUST COMPANY, not in its individual capacity but solely as trustee on behalf of
that certain trust created under the Trust Agreement, dated as of November 14,
1984 between Aircraft 49262, Inc. (as assignee of CCD Air Ten, Inc.) and
Wilmington Trust Company, WILMINGTON TRUST COMPANY, not in its individual
capacity but solely as trustee on behalf of that certain trust created under the
Trust Agreement, dated as of November 15, 1984 between Aircraft 49263, Inc. (as
assignee of CCD Air Ten, Inc.) and Wilmington Trust Company, FIRST SECURITY
BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as owner
trustee on behalf of that certain trust created by Trust Agreement (24474),
dated as of April 1, 1999 between First Security Bank, National Association and
Aircraft 24474, Inc., FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its
individual capacity but solely as owner trustee on behalf of that certain trust
created by Trust Agreement (25262), dated as of April 25, 1999 between First
Security Bank, National Association and Aircraft 25262, Inc. and FIRST SECURITY
BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as trustee
on behalf of that certain trust created by Trust Agreement (49368), dated as of
April 25, 1999 between First Security Bank, National Association and Aircraft
49368, Inc., FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its individual
capacity but solely as trustee
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on behalf of that certain trust created by Trust Agreement (53623), dated as of
August 18, 1999 between First Security Bank, National Association and Aircraft
53623, Inc., FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its individual
capacity but solely as trustee on behalf of that certain trust created by Trust
Agreement (53624), dated as of August 18, 1999 between First Security Bank,
National Association and Aircraft 53624, Inc., FIRST SECURITY BANK, NATIONAL
ASSOCIATION, not in its individual capacity but solely as trustee on behalf of
that certain trust created by Trust Agreement (23771), dated as of April 7, 1999
between First Security Bank, National Association and Aircraft 23771, Inc.,
FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its individual capacity but
solely as trustee on behalf of that certain trust created by Trust Agreement
(23772), dated as of April 1, 1999 between First Security Bank, National
Association and Aircraft 23772, Inc., FIRST SECURITY BANK, NATIONAL ASSOCIATION,
not in its individual capacity but solely as trustee on behalf of that certain
trust created by Trust Agreement (26537), dated as of April 1, 1999 between
First Security Bank, National Association and Aircraft 26537, Inc., FIRST
SECURITY BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely
as trustee on behalf of that certain trust created by Trust Agreement (26538),
dated as of April 7, 1999 between First Security Bank, National Association and
Aircraft 26538, Inc., FIRST SECURITY BANK, NATIONAL ASSOCIATION, not in its
individual capacity but solely as trustee on behalf of that certain trust
created by Trust Agreement (24355), dated as of April 7, 1999 between First
Security Bank, National Association and Aircraft 24355, Inc., FIRST SECURITY
BANK, NATIONAL ASSOCIATION, not in its individual capacity but solely as trustee
on behalf of that certain trust created by Trust Agreement (24356), dated as of
April 7, 1999 between First Security Bank, National Association and Aircraft
24356, Inc. (collectively, with the Initial Borrower, the "Existing Borrowers"),
certain other UniCapital Subsidiary Trusts and UniCapital Special Purpose
Corporations designated as Borrowing Affiliates thereunder (the Existing
Borrowers and such UniCapital Subsidiary Trusts and UniCapital Special Purpose
Corporations being referred to individually as a "Borrower" or collectively as
the "Borrowers"), XXXXXX COMMERCIAL PAPER INC., a New York corporation in its
capacity as a Lender ("Xxxxxx"), and other financial institutions from time to
time parties thereto (such financial institutions hereinafter being referred to
individually as a "Lender" or collectively as the "Lenders"), and XXXXXX
COMMERCIAL PAPER INC. in its capacity as agent for the Lenders (in such
capacity, and together with any successor agent, the "Agent").
W I T N E S S E T H :
WHEREAS, the Borrowers, UniCapital, Xxxxxx, and the Agent, desire
to extend the maturity of the Credit Agreement as set forth in this Amendment,
but only on the terms and subject to the conditions set forth below;
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto agree as
follows:
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1. Defined Terms. Terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
2. Amendment of Article I. (a) The definition of "Stated Termination
Date" is hereby amended by deleting the existing definition and substituting in
lieu thereof the following:
"Stated Termination Date" means December 31, 2000.
(b) The definition of "Total Revolving Credit Commitment" is
amended by reducing the amount thereof to $400,000,000 and the Revolving Credit
Commitment of Xxxxxx Commercial Paper Inc. is hereby reduced to $400,000,000.
(c) The following additional definitions are added in the
appropriate alphabetical order to Section 1.1:
"Engine ABS Transaction" means the securitization transaction
consisting of (i) the non-recourse "true sale" transfer by UniCapital Aircraft
Engines Group, Inc ("UAEG") to UniCapital Jet Thrust Trust of certain commercial
aircrafts engines, certain engine parts and certain related property (the
"Transferred Property"), (ii) the private placement of non-recourse asset-backed
notes issued by UniCapital Jet Thrust Trust secured by the Transferred Property,
and (iii) the issuance of the equity interest in UniCapital Jet Thrust Trust to
UAEG; or any similar transaction with respect to some or all of the Transferred
Property.
"Specified Overadvance Prepayment" means 50% of the amount
required to be prepaid on the Loans pursuant to the second sentence of Section
2.3(b)(i) with respect to the following Financed Aircraft: an Airbus A320-200
aircraft, having manufacturer's serial number 369 and two Boeing 737-529
aircraft having manufacturer's serial numbers 26537 and 26538.
3. Amendment and Partial Waiver of Article II. (a) Section 2.3(b) is
hereby amended by adding a new subparagraph (vi) at the end thereof, reading as
follows:
"(vi) Subject to the next succeeding sentence, at the closing of
the Engine ABS Transaction, the Borrowers, jointly and severally,
shall be required to prepay an aggregate amount (to be applied
pro rata to the principal balance of the Loans) equal to the
lesser of (x) $15,000,000, (y) the greater of (A) $10,000,000 and
(B) the total net proceeds (after the payment of all costs, fees
and expenses related to the Engine ABS Transaction and all
amounts necessary to remove any Lien on or with respect to any
Transferred Property) that UniCapital or any of its Affiliates is
or becomes entitled to receive from the Engine ABS Transaction
(without regard to any other agreements with respect to the
disposition of such proceeds), to the extent of funds remaining
after mandatory prepayments of amounts outstanding under the
Affiliate Bridge Credit Agreement, and (z) the excess, if any, of
the aggregate outstanding principal balance of the Revolving
Loans over the aggregate of the Applicable Aircraft Borrowing
Bases of all Financed Aircraft as reduced by the Cumulative
Depreciation Amounts of such
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Financed Aircraft. Provided no Default or Event of Default exists
on the date of closing of the Engine ABS Transaction, the amount
required to be prepaid pursuant to the immediately preceding
sentence may, at the Borrowers' unanimous joint election, be
reduced by an amount equal to 50% of the Specified Overadvance
Prepayment."
(b) Notwithstanding anything to the contrary in Section
2.3(b)(i), no mandatory prepayment in excess of the Specified Overadvance
Prepayment shall be required in connection with the sale of the aircraft
specified in the definition thereof.
(c) The Borrowers shall, jointly and severally, pay an extension
fee equal to $6,300,844.68 in connection with this Amendment. Such fee shall be
paid in twelve (12) equal monthly installments of $525,070.39 per month
commencing on January 15, 2000; provided, that the unpaid balance of such fee
shall be paid on the earliest of (such earliest date, the "Final Fee Payment
Date") (i) the date of closing of the Engine ABS Transaction, (ii) the date on
which the Loans shall become due and payable and (iii) the date, if any, on
which the Lenders consent to the occurrence of any Change in Control. In
addition, the Borrowers, jointly and severally, shall pay early termination fees
to the Agent equal to 0.90% of the outstanding principal balance of the Loans
allocable to a Financed Aircraft (other than the 369 Aircraft) if such Financed
Aircraft is sold or refinanced earlier than nine (9) months after a Loan is
advanced under the Credit Agreement with respect to such Aircraft (except, if
such sale or refinancing occurs in a securitization transaction of which Xxxxxx
Brothers Inc. is lead manager). In addition, the Borrowers, jointly and
severally, shall pay an early termination fee to the Agent on the date of the
sale of the Airbus A320-200 aircraft with manufacturer's serial number 369 (the
"369 Aircraft") (except if such sale occurs in a securitization transaction of
which Xxxxxx Brothers Inc. is lead manager), in an amount equal to 1.00% of the
outstanding principal balance of the Loans then allocable to the 369 Aircraft,
such fee to be payable in equal monthly installments commencing on the Payment
Date immediately succeeding such sale and ending on the Payment Date on or about
December 15, 2000, provided, that the unpaid balance of such fee shall be paid
on the Final Fee Payment Date.
(d) Each of the Lenders and the Agent hereby agrees that,
notwithstanding anything to the contrary in the Credit Agreement, no
Concentration Restriction shall be exceeded or otherwise violated by reason of
the reduction of the "Total Revolving Credit Commitment" contemplated by Section
2(b) of this Amendment; provided, however, that the Concentration Restrictions
after giving effect to such reduction shall be applicable to any Loans made
after the date hereof.
4. Special Provisions for Off-Lease 747. Notwithstanding anything to
the contrary contained in the Credit Agreement as amended hereby, the principal
balance outstanding with respect to the Boeing 747, manufacturer's serial number
24837 (the "Off-Lease 747") shall not increase above $20 million, regardless of
whether the Off-Lease 747 is re-leased. The Agent and the lenders reserve all
rights with respect to the Off-Lease 747, including without limitation the right
to demand additional mandatory prepayments pursuant to Section 2.3(b)(ii). The
Borrowers acknowledge and agree that the Off-Lease 747 is not an Eligible
Aircraft. Also, the parties hereto agree that, solely for the purposes of
determining the "Monthly Amortization Amount" under and as defined in the
Lockbox Agreement
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with respect to the Off-Lease 747, the "Fair Market Value" of the Off-Lease 747
shall be $35,000,000.
5. Condition Precedent. (a) This Amendment shall not be binding until
the following conditions precedent have been fulfilled; provided, however, that
once such conditions are fulfilled, the effective date of this Amendment shall
be deemed to be November 19, 1999:
(i) The Agent shall have received counterparts of this Amendment,
duly executed and delivered by the Borrowers, UniCapital, Xxxxxx,
and the Agent;
(ii) The Agent shall have received such opinions of counsel to
the Borrowers as it may request in connection with this
Amendment;
(iii) The Agent shall have received an underwriting letter with
respect to the Xxxxxx Brothers Inc.'s right to act as lead
manager for any securitization of the Financed Aircraft; and
(iv) the Affiliate Bridge Credit Agreement is extended to expire
coterminously with the Credit Agreement.
6. Representations and Warranties. After the effectiveness of this
Amendment, the Borrower confirms and reaffirms as of the date hereof the
representations and warranties contained in Article VI of the Credit Agreement.
7. Consent to Extensions of Affiliate Warehouse Credit Agreement. Each
Borrower hereby consents to all extensions of the maturity of the Affiliate
Bridge Credit Agreement and hereby confirm and represent to the Lender and the
Agent that all guarantees thereof by any Borrower and any liens on property of
any Borrower to secure indebtedness or other obligations under the Affiliate
Warehouse Credit Agreement remain in full force and effect.
8. Continuing Effect. Except as expressly waived or amended hereby, the
Credit Agreement shall continue to be and shall remain in full force and effect
in accordance with its terms. This Amendment shall constitute a Loan Document.
9. Governing Law; Counterparts. (a) This Amendment shall be governed
by, and construed and interpreted in accordance with, the laws of the State of
New York.
(b) This Amendment may be executed by the parties hereto on one
or more counterparts, and all such counterparts shall be deemed to constitute
one and the same instrument.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and delivered as of the day and year first written above.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION,
not in its individual capacity,
except as expressly specified
herein, but solely as trustee,
as the Initial Borrower
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY
AS TRUSTEE ON BEHALF OF THAT
CERTAIN TRUST CREATED UNDER THE
TRUST AGREEMENT (22222) DATED AS
OF SEPTEMBER 28, 199 BY AND
BETWEEN FIRST SECURITY BANK,
NATIONAL ASSOCIATION AND
AIRCRAFT 22222, INC.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY
AS TRUSTEE ON BEHALF OF THAT
CERTAIN TRUST CREATED UNDER THE
TRUST AGREEMENT (53015) DATED AS
OF AUGUST 28, 1998 BY AND
BETWEEN FIRST SECURITY BANK,
NATIONAL ASSOCIATION AND
AIRCRAFT 53105, INC.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY
AS TRUSTEE ON BEHALF OF THAT
CERTAIN TRUST CREATED UNDER THE
TRUST AGREEMENT (24837) DATED AS
OF OCTOBER 30, 1998 BY AND
BETWEEN FIRST SECURITY BANK,
NATIONAL
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ASSOCIATION AND AIRCRAFT 24837,
INC.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY
AS TRUSTEE UNDER THE AMENDED AND
RESTATED TRUST AGREEMENT (347)
DATED AS OF OCTOBER 30, 1998 BY
AND BETWEEN FIRST SECURITY BANK,
NATIONAL ASSOCIATION AND
AIRCRAFT 347, INC.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY
AS TRUSTEE ON BEHALF OF THAT
TRUST CREATED BY TRUST AGREEMENT
(23377) DATED AS OF JUNE 24,
1998 BY AND BETWEEN FIRST
SECURITY BANK, NATIONAL
ASSOCIATION AND AIRCRAFT 23377,
INC.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY
AS TRUSTEE ON BEHALF OF THAT
TRUST CREATED BY TRUST AGREEMENT
(23830) DATED AS OF JULY 10,
1998 BY AND BETWEEN FIRST
SECURITY BANK, NATIONAL
ASSOCIATION AND AIRCRAFT 23830,
INC.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY
AS OWNER TRUSTEE ON BEHALF OF
THAT CERTAIN TRUST CREATED BY
TRUST AGREEMENT (24474), DATED
AS OF APRIL 1, 1999 BETWEEN
FIRST SECURITY BANK, NATIONAL
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ASSOCIATION AND AIRCRAFT 24474,
INC.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY
AS OWNER TRUSTEE ON BEHALF OF
THAT CERTAIN TRUST CREATED BY
TRUST AGREEMENT (25262), DATED
AS OF APRIL 25, 1999 BETWEEN
FIRST SECURITY BANK, NATIONAL
ASSOCIATION AND AIRCRAFT 25262,
INC.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY
AS TRUSTEE ON BEHALF OF THAT
CERTAIN TRUST CREATED BY TRUST
AGREEMENT (49368), DATED AS OF
APRIL 25, 1999 BETWEEN FIRST
SECURITY BANK, NATIONAL
ASSOCIATION AND AIRCRAFT 49368,
INC.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY
AS TRUSTEE ON BEHALF OF THAT
CERTAIN TRUST CREATED BY TRUST
AGREEMENT (53623), DATED AS OF
AUGUST 18, 1999 BETWEEN FIRST
SECURITY BANK, NATIONAL
ASSOCIATION AND AIRCRAFT 53623,
INC.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY
AS TRUSTEE ON BEHALF OF THAT
CERTAIN TRUST
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CREATED BY TRUST AGREEMENT
(53624), DATED AS OF AUGUST 18,
1999 BETWEEN FIRST SECURITY
BANK, NATIONAL ASSOCIATION AND
AIRCRAFT 53624, INC.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY
AS TRUSTEE ON BEHALF OF THAT
CERTAIN TRUST CREATED BY TRUST
AGREEMENT (23771), DATED AS OF
APRIL 7, 1999 BETWEEN FIRST
SECURITY BANK, NATIONAL
ASSOCIATION AND AIRCRAFT 23771,
INC.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY
AS TRUSTEE ON BEHALF OF THAT
CERTAIN TRUST CREATED BY TRUST
AGREEMENT (23772), DATED AS OF
APRIL 1, 1999 BETWEEN FIRST
SECURITY BANK, NATIONAL
ASSOCIATION AND AIRCRAFT 23772,
INC.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY
AS TRUSTEE ON BEHALF OF THAT
CERTAIN TRUST CREATED BY TRUST
AGREEMENT (26537), DATED AS OF
APRIL 1, 1999 BETWEEN FIRST
SECURITY BANK, NATIONAL
ASSOCIATION AND AIRCRAFT 26537,
INC.
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FIRST SECURITY BANK, NATIONAL
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY
AS TRUSTEE ON BEHALF OF THAT
CERTAIN TRUST CREATED BY TRUST
AGREEMENT (26538), DATED AS OF
APRIL 7, 1999 BETWEEN FIRST
SECURITY BANK, NATIONAL
ASSOCIATION AND AIRCRAFT 26538,
INC.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY
AS TRUSTEE ON BEHALF OF THAT
CERTAIN TRUST CREATED BY TRUST
AGREEMENT (24355), DATED AS OF
APRIL 7, 1999 BETWEEN FIRST
SECURITY BANK, NATIONAL
ASSOCIATION AND AIRCRAFT 24355,
INC.
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY
AS TRUSTEE ON BEHALF OF THAT
CERTAIN TRUST CREATED BY TRUST
AGREEMENT (24356), DATED AS OF
APRIL 7, 1999 BETWEEN FIRST
SECURITY BANK, NATIONAL
ASSOCIATION AND AIRCRAFT 24356,
INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Vice President
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WILMINGTON TRUST COMPANY, NOT IN
ITS INDIVIDUAL CAPACITY BUT
SOLELY AS TRUSTEE ON BEHALF OF
THAT CERTAIN TRUST CREATED UNDER
THE TRUST AGREEMENT, DATED AS OF
NOVEMBER 14, 1984 BETWEEN
AIRCRAFT 49262, INC. (AS
ASSIGNEE OF CCD AIR TEN, INC.)
AND WILMINGTON TRUST COMPANY
WILMINGTON TRUST COMPANY, NOT IN
ITS INDIVIDUAL CAPACITY BUT
SOLELY AS TRUSTEE ON BEHALF OF
THAT CERTAIN TRUST CREATED UNDER
THE TRUST AGREEMENT, DATED AS OF
NOVEMBER 15, 1984 BETWEEN
AIRCRAFT 49263, INC. (AS
ASSIGNEE OF CCD AIR TEN, INC.)
AND WILMINGTON TRUST COMPANY
By: /s/ Xxxxx X. Xxxxxxx
----------------------------
Name: Xxxxx X. Xxxxxxx
Title: Administrative
Account Manager
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UNICAPITAL CORPORATION
By: /s/ Xxxxxx Xxxx
----------------------------
Name: Xxxxxx Xxxx
Title: Executive Vice
President
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XXXXXX COMMERCIAL PAPER INC.,
as Agent and as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
