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Exhibit 4.05(a)
AMENDMENT
AMENDMENT, dated as of March 26, 1999 (the "Amendment"), to the
Credit Agreement, dated as of October 6, 1998 (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 (49104) dated as of January
10, 1999 by and between First Security Bank, National association and Aircraft
49104, 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 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 certain trust created under the Amended and Restated Trust Agreement
(25221) dated as of August 25, 1998 by and between First Security Bank, National
Association and Aircraft 25221, Inc., and AIRCRAFT 373, 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 amend 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. Amendments to Article I.
(a) The following defined terms are hereby added to subsection
1.1 in the appropriate alphabetical order:
"Alternate Applicable Aircraft Advance Rate" with respect
to any Eligible Aircraft means:
(a) if the age of such Aircraft (measured from the date of
original manufacture to the date of the original Loan made or to
be made in respect of such Eligible Aircraft) is less than or
equal to 15 years, 80%;
(b) if the age of such Aircraft (measured from the date of
original manufacture to the date of the original Loan made or to
be made in respect of such Eligible Aircraft) is less than or
equal to 20 years and greater than 15 years, 70%; or
(c) if the age of such Aircraft (measured from the date of
original manufacture to the date of the original Loan made or to
be made in respect of such Eligible Aircraft) is greater than 20
years, 60%.
"Alternate Applicable Aircraft Borrowing Base" with
respect to any Eligible Aircraft means the lesser of the following
amounts (subject to such lesser amount being reduced pursuant to the
Concentration Restriction): (a) the sum of (x) the available amount for
drawing under any Eligible Credit Enhancement in effect with respect to
the Eligible Aircraft, and (y) the product of (A) the Alternate
Applicable Aircraft Advance Rate for such Eligible Aircraft, and (B) the
Fair Market Value of such Eligible Aircraft, (b) 80% of the Fair Market
Value of such Eligible Aircraft and (c) the sum of (x) the amount
available for drawing under any Eligible Credit Enhancement in effect
with respect to such Eligible Aircraft and (y) 85% of the Purchase Price
of such Eligible Aircraft; provided, that the lesser of (a), (b) or (c)
shall be reduced by the amount of any mandatory prepayment under
subsection 2.3(b), and, provided, further, that in the case of Eligible
Aircraft with respect to which Loans have been advanced prior to Xxxxx
00, 0000, xxx xxxxxx xx (x), (x) and (c) shall be reduced by subtracting
the Cumulative Depreciation Amount determined as of the date of an
additional Loan Advance with respect to such aircraft.
"Cumulative Depreciation Amount" means, with respect to
any Eligible Aircraft, the product of (a) an amount equal to one-twelfth
of 4% of the Fair Market Value of such Eligible Aircraft, as determined
at the time of the making of the Loans in respect of such aircraft,
multiplied by (b) the number of full calendar months that have elapsed
from the date of the initial advance of a Loan with respect to such
aircraft until the date of determination of Cumulative Depreciation
Amount.
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"Incremental Applicable Aircraft Borrowing Base" means,
with respect to any Eligible Aircraft, the difference between the (a)
Alternate Applicable Aircraft Borrowing Base and (b) the Applicable
Aircraft Borrowing Base as reduced by the Cumulative Depreciation Amount
for such Eligible Aircraft.
(b) The definition of "Applicable Carrier Borrowing Base" is
hereby amended by deleting the words "Applicable Aircraft Borrowing Bases" and
substituting in lieu thereof the words "Alternate Applicable Aircraft Borrowing
Bases".
(c) The definition of "Applicable Margin" is hereby amended: (1)
by deleting therefrom the amount "1.75%" and substituting in lieu thereof the
amount "2.75%"; (2) by deleting therefrom the amount "1.50%" and substituting in
lieu thereof the amount "2.50%"; (3) by deleting therefrom the phrase
"three-fourths of one percent (.75%)" and substituting in lieu thereof the
phrase "one and three-fourths percent (1.75%)"; and, (4) by deleting therefrom
the phrase "one-half of one percent (.50%)" and substituting in lieu thereof the
phrase "one and one-half percent (1.50%); provided, however, that if the
aggregate outstanding principal balance of the Revolving Loans does not exceed
the aggregate of the Applicable Aircraft Borrowing Bases of all Financed
Aircraft, the original definition of "Applicable Margin" (without regard to the
amendment herein) shall apply and, provided further, that if prepayments of the
Loans have not reduced the outstanding principal amount of the Loans to an
amount that does not exceed the aggregate Applicable Aircraft Borrowing Bases of
all Financed Aircraft as reduced by the Cumulative Depreciation Amounts of such
Financed Aircraft on or before July 31, 1999, the Applicable Margin shall
increase by adding one-quarter of one percent thereto effective August 1, 1999
and shall increase by adding an additional one-quarter of one percent thereto
effective the first day of each calendar month thereafter until prepayments of
the Loans have reduced the outstanding principal amount of the Loans to an
amount that does not exceed the aggregate Applicable Aircraft Borrowing Bases of
all Financed Aircraft as reduced by the Cumulative Depreciation Amounts of such
Financed Aircraft.
(d) The definition of "Borrowing Base" is hereby amended by
deleting therefrom the words "Applicable Aircraft Borrowing Base" wherever such
words appear and substituting in lieu thereof the term "Alternate Applicable
Aircraft Borrowing Base".
(e) The definition of "Concentration Restriction" is hereby
amended by deleting therefrom the words "Applicable Aircraft Borrowing Base"
wherever such words appear and substituting in lieu thereof the term "Alternate
Applicable Aircraft Borrowing Base".
3. Amendments to Article II.
(a) Subsection 2.1(a) of the Credit Agreement is hereby
amended:
(1) by deleting therefrom the words "Applicable Aircraft
Borrowing Base" wherever such words appear and substituting in lieu
thereof the term "Alternate Applicable Aircraft Borrowing Base"; and
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(2) by inserting the following after the word "violated" in
third proviso of the first sentence:
" and (Z) the aggregate Incremental Applicable Aircraft Borrowing
Bases for all Financed Aircraft shall not exceed the amount of
$50,000,000."
(b) Subsection 2.3(b)(i) of the Credit Agreement is hereby
amended by deleting such subsection and substituting in lieu thereof the
following:
"(b) Mandatory Prepayments. (i) Upon the sale of any Aircraft or
other asset by any Borrower, or upon the refinancing of any
Indebtedness of any Borrower arising from any Loan hereunder, the
Borrowers, jointly and severally, shall immediately pay to the
Agent an amount equal to the net proceeds of such sale or
refinancing, which amount shall be applied by the Agent to reduce
outstanding principal and accrued interest on any Loans made to,
or for the benefit of, such Borrower. If any net proceeds of such
sale or refinancing remain after the repayment in full of all
outstanding principal and accrued interest on such Loans, such
excess proceeds (except to the extent derived from the pending
sale of the Financed Aircraft having manufacturer's serial
numbers 373 (leased to Midway Airlines, Inc.) and 25221 (leased
to Britannia Airways)) shall first be applied pro rata to the
partial prepayment of all unpaid Revolving Loans in respect of
the remaining Financed Aircraft until the aggregate outstanding
principal balance of the Revolving Loans does not exceed the
aggregate of the Applicable Aircraft Borrowing Bases of all
Financed Aircraft as reduced by the Cumulative Depreciation
Amounts of such Financed Aircraft, and then, if no Default or
Event of Default exists at the time, the balance, if any, shall
be paid to the Applicable Borrower and may be used by such
Borrower in its discretion subject to compliance with the terms
of this Credit Agreement and other Loan Documents. If UniCapital
or any of its affiliates or one or more of the Borrowers, acting
directly or through one or more affiliates, enters into a
securitization, offering of lease receivables, equipment trust
certificate transaction or other capital markets transaction
(except the pending sale for securitization of the Financed
Aircraft having manufacturer's serial numbers 373 (leased to
Midway Airlines, Inc.) and 25221 (leased to Britannia Airways))
with respect to some or all of the Financed Aircraft, in either
case UniCapital shall cause any net proceeds of such debt
offering or other transaction to be applied pro rata to the
partial prepayment of all unpaid Revolving Loans in respect of
the Financed Aircraft until the aggregate outstanding principal
balance of the Revolving Loans does not exceed the aggregate of
the Applicable Aircraft Borrowing Bases of all Financed Aircraft
as reduced by the Cumulative depreciation Amounts of such
Financed Aircraft, and then the balance, if any (if not otherwise
required to be applied herein), shall be paid to the Applicable
Borrower and may be used by such Borrower in its discretion
subject to compliance with the terms of this Credit Agreement and
other Loan Documents."
(c) Subsection 2.10 of the Credit Agreement is hereby amended by
inserting the following after the word "therein":
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"and, in addition thereto, shall pay a fee equal to 1% of the
Incremental Applicable Aircraft Borrowing Base for each Financed
Aircraft on the date of the Loan advance with respect thereto."
4. Amendments to Article VII.
The following additional subsection is hereby added to Article
VII in the appropriate numerical order:
"7.26. Refinancing of Other Aircraft. UniCapital agrees to cause
the four existing aircraft financed under the NationsBank
Warehouse Credit Agreement to be promptly refinanced under this
Agreement."
5. Transitory Provision. Notwithstanding the limitation contained in the
second sentence of the definition of Financed Aircraft, with respect to Eligible
Aircraft with respect to which a Loan was advanced on or before March 25, 1999,
Lenders shall make a single additional advance with respect to all such Eligible
Aircraft, and if required, each Borrower hereby agrees to partially prepay the
unpaid Revolving Loans in order to conform to the terms and conditions contained
in subsection 2.1 of the Credit Agreement, as amended by this Amendment. The
Borrowers hereby agree that the proceeds of such additional advances shall be
used by each Borrower only to prepay existing loans permitted under subsection
8.5(d) of the Credit Agreement.
6. Effective Date. This Amendment shall become effective as of the date
hereof (the "Effective Date") upon receipt by the Agent of counterparts of this
Amendment, duly executed and delivered by the Borrowers, UniCapital, Xxxxxx, and
the Agent and the amendment of even date herewith to the existing engagement
letter between Xxxxxx Brothers Inc. and UniCapital, duly executed by UniCapital.
7. 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.
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.
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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
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Assistant
Vice President
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 (49104) DATED
AS OF JANUARY 10, 1999 BY AND
BETWEEN FIRST SECURITY BANK,
NATIONAL ASSOCIATION AND
AIRCRAFT 49104, INC.
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
Title: Assistant
Vice President
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
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FIRST SECURITY BANK, NATIONAL
ASSOCIATION AND AIRCRAFT 22222,
INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Assistant
Vice President
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.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Assistant
Vice President
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.
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
Title: Assistant
Vice President
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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.
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
Title: Assistant
Vice President
FIRST SECURITY BANK, NATIONAL
ASSOCIATION, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY
AS TRUSTEE ON BEHALF OF THAT
CERTAIN TRUST CREATED UNDER THE
AMENDED AND RESTATED TRUST
AGREEMENT (00000) XXXXX XX OF
AUGUST 25, 1998 BY AND BETWEEN
FIRST SECURITY BANK, NATIONAL
ASSOCIATION AND AIRCRAFT 25221,
INC.
By: /s/ Xxxxx X. Xxxx
----------------------------
Name: Xxxxx X. Xxxx
Title: Assistant
Vice President
AIRCRAFT 373, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Vice President
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UNICAPITAL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
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XXXXXX COMMERCIAL PAPER INC.,
as Agent and as a Lender
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Vice President
