EX-10 2 sixthamendment.txt FORM OF SIXTH AMENDMENT AGREEMENT OF JOINDER AND SIXTH AMENDMENT TO CREDIT AGREEMENT AGREEMENT OF JOINDER AND SIXTH AMENDMENT TO CREDIT AGREEMENT, dated as of January 2, 2004 (the "Amendment"), to Credit Agreement dated June 28, 2000 (as amended, the "Agreement") by and between AeroCentury Corp., a Delaware corporation ("AeroCentury"), the banking institutions signatories hereto and such other institutions that hereafter become a "Bank" pursuant to Section 10.4 thereof (collectively the "Banks" and individually a "Bank") and National City Bank, a national banking association, as Agent for the Banks under this Agreement ("National City" which shall mean in its capacity as Agent unless specifically stated otherwise). All capitalized terms used herein and not otherwise defined shall have the respective meanings ascribed to them in the Agreement. Preliminary Statement WHEREAS, National City, together with the other Banks (the "Existing Banks") have requested, and First Bank dba First Bank & Trust ("FB&T") has agreed, to join as a "Bank" under the Agreement in the manner hereinafter set forth; WHEREAS, FB&T agrees to make revolving credit loans in accordance with the terms and conditions of the Agreement to AeroCentury, not to exceed at any time outstanding, in the aggregate, FB&T's "Revolving Loan Commitment"; WHEREAS, National City and AeroCentury, together with the other Banks, also desire to amend the Agreement in the manner hereinafter set forth, and Section 10.2 of the Agreement requires that the written consent of National City, the Required Banks and National City be obtained for certain amendments or modifications contemplated herein. NOW THEREFORE, in consideration of the premises and promises hereinafter set forth and intending to be legally bound hereby, the parties hereto agree as follows: 1. Joinder. Upon the effectiveness of this Amendment and as required by the Agreement, FB&T joins in, assumes, adopts and becomes a Bank under the Agreement. All references to the Bank contained in the Agreement or any of the Loan Documents are hereby deemed, for all purposes, to refer to and include FB&T in addition to the Existing Banks (including all grants of security interests in the Collateral described therein) and agrees to comply with all of the terms, undertakings and conditions of the Agreement as if it was an original signatory thereto. 2. Amendments to Agreement. Exhibit A to the Agreement which sets forth the "Banks' Commitments and Percentages" shall be and is hereby amended and restated in its entirety as attached hereto. 3. Representations and Warranties. AeroCentury hereby restates the representations and warranties made in the Agreement, including but not limited to Article 3 thereof, on and as of the date hereof as if originally given on this date. 4. Covenants. AeroCentury hereby represents and warrants that it is in compliance and has complied with each and every covenant set forth in the Agreement (including this Amendment), including but not limited to Articles 5 and 6 thereof, on and as of the date hereof. 5. Effectiveness Conditions. This Amendment shall be effective upon completion of the following conditions precedent (all documents to be in form and substance satisfactory to National City and the Banks, and dated the date hereof): (a) execution and delivery of this Amendment; (b) execution and delivery of the Note by AeroCentury in favor of FB&T, in the form attached as Annex A hereto; (c) delivery of an Officer's Certificate in the form attached as Annex B hereto confirming certain matters set forth therein executed by an officer of AeroCentury; and (d) execution and delivery of such other documents, instruments and agreements as National City shall reasonably request in connection with the foregoing matters. 6. Acknowledgment and Consent. National City and the Existing Banks hereby acknowledge and consent to the joinder of FB&T as contemplated hereunder and each hereby confirm and agree that all security interests and liens granted to Agent for the benefit of the Banks continue in full force and effect and shall continue to secure the obligations of AeroCentury under the Agreement and other Loan Documents. FB&T shall have the same rights and powers under this Agreement and the other Loan Documents as the other Banks. 7. Affirmation. AeroCentury hereby affirms its absolute and unconditional promise to pay to the Banks the Loans and all other amounts due under the Agreement and any other Loan Document on the maturity dates(s) provided in the Agreement or any other Loan Document, as such documents may be amended from time to time and including by this Amendment. 8. Effect of Amendment. This Amendment amends the Agreement only to the extent and in the manner herein set forth, and in all other respects the Agreement is ratified and confirmed and continues in full force and effect. It is the intent of the parties that the Agreement and this Amendment be interpreted as a single instrument for all intents and purposes and that any references to the Agreement shall be deemed to include and incorporate this Amendment. 9. Counterparts. This Amendment may be signed in any number of counterparts, each of which shall be an original, with the same effect as if the signatures hereto were upon the same instrument. [Remainder of page intentionally left blank] IN WITNESS WHEREOF, the parties hereto have each caused this Amendment to be duly executed by their duly authorized representatives as of the date first above written. AEROCENTURY CORP. By ________________________ Name: Title: NATIONAL CITY BANK By ________________________ Name: Michael J. Labrum Title: Senior Vice President CALIFORNIA BANK & TRUST By ________________________ Name: Title: FIRST BANK DBA FIRST BANK & TRUST By ________________________ Name: Title: EXHIBIT A BANKS' COMMITMENTS AND PERCENTAGES Bank Commitment Percentage National City Bank $25,000,000 50% Specialized Banking Group, Philadelphia Region One South Broad Street, 13th floor, Loc. 01-5997 Philadelphia, PA 19107 Fax No. (267) 256-4001 California Bank & Trust $15,000,000 30% San Francisco Regional Corporate Banking 465 California Street, First Floor San Francisco, CA 94104 Fax No. (415) 875-1456 First Bank dba $10,000,000 20% First Bank & Trust 550 Montgomery Street 10th floor San Francisco, CA 94111 Fax No. (415) 398-7190 ------------ ---------- TOTAL $50,000,000 100%
ANNEX A FORM OF NOTE NOTE $10,000,000 Philadelphia, PA ___________, 20__ For Value Received, AeroCentury Corp., a Delaware corporation, hereby promises to pay to the order of First Bank dba First Bank & Trust (the "Bank"), in lawful currency of the United States of America in immediately available funds at the principal office of National City Bank in Cleveland, Ohio, on the Revolver Termination Date or on such earlier date or dates as provided in the Credit Agreement described below, the principal sum of TEN MILLION DOLLARS ($10,000,000) or, if less, the then unpaid principal amount of all Loans made by the Bank pursuant to the Credit Agreement. AeroCentury Corp. promises also to pay interest on the unpaid principal amount hereof in like money at such office from the date hereof until paid in full at the rates and at the times provided in the Credit Agreement. This Note is one of the Notes referred to in, is entitled to the benefits of and is secured by security interests referred to in the Credit Agreement, dated June 28, 2000, by and between AeroCentury Corp. and the banking institutions named therein, with National City Bank as Agent (as such may be amended, modified, supplemented, restated or replaced from time to time, the "Credit Agreement"). This Note is subject to voluntary prepayment and mandatory repayment prior to the Revolver Termination Date, in whole or in part, as provided in the Credit Agreement. In case an Event of Default shall occur and be continuing, the maturity date of the principal of and the accrued interest on this Note may be accelerated and be declared to be due and payable in the manner and with the effect provided in the Credit Agreement. AeroCentury hereby waives presentment, demand, protest or notice of any kind in connection with this Note. Notwithstanding the face amount of this Note, the undersigned's liability hereunder shall be limited, at all times, to the actual aggregate outstanding indebtedness to the Bank relating to such Bank's Loans, including all principal and interest, together with all fees and expenses as provided in the Credit Agreement, as established by the Bank's books and records which shall be conclusive absent manifest error. Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Credit Agreement. THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT REGARD TO PENNSYLVANIA OR FEDERAL PRINCIPLES OR CONFLICT OF LAWS. AeroCentury Corp. By ___________________________ Name: Title: ANNEX B FORM OF OFFICER'S CERTIFICATE [omitted from filing]