DEFERRAL AGREEMENT (MSNs 19002 and 19003)
EXHIBIT 10.1
DEFERRAL AGREEMENT (MSNs 19002 and 19003)
THIS DEFERRAL AGREEMENT (MSNs 19002 and
19003) is dated as of June 23, 2020 (this
“Agreement”)
among ACY SN 19002 LIMITED
(the “19002
Borrower”), ACY SN
19003 LIMITED (the “19003 Borrower”) and ACY E-175 LLC (the “E175 Borrower” and, together with
the 19002 Borrower and the 19003 Borrower, each individually, a
“Borrower” and,
collectively, the “Borrowers”), each of the
participants that is a signatory hereto identified under the
caption “PARTICIPANTS” on the
signature pages hereto (individually, a “Participant” and, collectively,
the “Participants”), NORDDEUTSCHE LANDESBANK GIROZENTRALE, as
swap counterparty (the “Swap
Counterparty”), NORDDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK
BRANCH, as agent (the “Agent”) and WILMINGTON TRUST COMPANY, as security
trustee (the “Security
Trustee”).
WHEREAS, the Borrowers, the
Participants, the Swap Counterparty, the Agent and the Security
Trustee have entered into that certain Credit Agreement dated as of
February 7, 2019 (as amended, modified or supplemented from time to
time, the “Credit
Agreement”);
WHEREAS, the Borrowers, the other
mortgagors from time to time party thereto, and the Security
Trustee have entered into that certain Security Agreement dated as
of February 7, 2019 (as amended, modified or supplemented from time
to time, the “Security
Agreement”); and
WHEREAS, the parties hereto desire to
supplement the Credit Agreement and the Security Agreement in
certain respects.
NOW THEREFORE, for good and valuable
consideration, the receipt of which is hereby acknowledged, the
parties hereto agree that notwithstanding any other provision in
the Facility Agreements to the contrary:
Except
as otherwise defined in this Agreement, the capitalized terms used
herein shall have the meanings ascribed to such terms in the Credit
Agreement and the Security Agreement.
Section
2. Deferral.
(a) Notwithstanding
anything to the contrary set forth in the Credit Agreement, the
Security Agreement or the other Loan Operative Documents, in
connection with each Loan with respect to an Air Nostrum Aircraft,
the parties hereto agree that:
(i) with
retroactive effect to and as of the Payment Date in March 2020 (the
“March Payment
Date”), an amount equal to 100% of the installment of
Original Amount for such Loan payable by the 19002 Borrower or the
19003 Borrower, as the case may be, on the March Payment Date (the
“March Deferred
Amount”) shall be capitalized and form part of the
principal amount of such Loan, which March Deferred Amount
(together with interest which shall accrue thereon at the Past Due
Rate) shall be repaid in full by the 19002 Borrower or the 19003
Borrower, as the case may be, on or prior to September 24,
2020;
(ii) an
amount equal to 100% of the installment of Original Amount for such
Loan payable by the 19002 Borrower or the 19003 Borrower, as the
case may be, on the Payment Date in June 2020 (the
“June Deferred Amount” and, together
with the March Deferred Amount, the “Deferred Amounts”) shall be
capitalized and form part of the principal amount of such Loan,
which June Deferred Amount (together with interest which shall
accrue thereon at the Past Due Rate) shall be repaid in full by the
19002 Borrower or the 19003 Borrower, as the case may be, on or
prior to September 24, 2020; and
(iii) an
amount equal to 100% of the sum of (A) all accrued and unpaid
interest on such Loan and (B) all Swap Obligations due to the Swap
Counterparty under the Swap Agreement in respect of such Loan, in
each case payable by the 19002 Borrower or the 19003 Borrower, as
the case may be, on the Payment Date in June 2020 shall be paid to
the Security Trustee for distribution to the Participants and the
Swap Counterparty on a pro rata basis from amounts on deposit in
the Collateral Account for such Loan;
provided that, except as
explicitly waived or deferred in writing by the Participants and
the Swap Counterparty, no other Event of Default has occurred and
is continuing under the Credit Agreement during the period
commencing on the March Payment Date and terminating on September
24, 2020 (the “Deferral
Period”).
(b) Notwithstanding the
foregoing, if an Event of Default occurs during the Deferral Period
under the Credit Agreement, including as a result of the failure to
make payments in accordance with Section 2(a), the deferral
constituted by this Agreement shall immediately cease and the Agent
may demand the full amounts due and payable in accordance with the
Credit Agreement and the Security Agreement, including the then
outstanding Deferred Amounts under the Credit Agreement, together
with accrued interest thereon at the Past Due Rate from the Payment
Date under the Credit Agreement upon which any such amount would
otherwise have been payable but for this Agreement.
Section
3. Representations and Warranties. Each
Borrower hereby represents to each other party hereto on the date
hereof that the representations and warranties of such Borrower set
forth in Section 4.1(a)-(g) of the Credit Agreement are true and
correct in all material respects on and as of the date hereof, or,
as to any such representation or warranty that refers to a specific
date, as of such specific date.
Section
4. Governing Law;
Miscellaneous.
(a) This Agreement
shall in all respects be governed by, and construed in accordance
with, the law of the State of New York, United States of America
without reference to principles of conflicts of law other than
Section 5-1401 and Section 5-1402 of the New York General
Obligations Law.
(b) This Agreement is a
limited conditional agreement and shall not be construed as a
course of dealing or waiver of any other previous, current or
future obligation or covenant and shall not limit any
person’s rights, powers or privileges under the Credit
Agreement, the Security Agreement and the other Operative
Documents, or preclude any exercise thereof or the exercise of any
other right, power or privilege (all such rights, powers and
privileges being hereby reserved).
(c) Except as
supplemented by this Agreement, each party hereto agrees and
acknowledges that each of the Credit Agreement and the Security
Agreement shall continue and remain in full force and effect in all
respects and each of the parties hereby confirms and ratifies its
obligations under each of the Credit Agreement and the Security
Agreement.
(d) This Agreement may
be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument, and any of
the parties hereto may execute this Agreement by signing any such
counterpart.
(e) The Borrowers agree
that they shall be responsible for all costs and expenses incurred
by the Lenders, the Agent and the Security Trustee in connection
with this Agreement (including, without limitation, any reasonable
fees and expenses of ▇▇▇▇▇▇ Price P.C., counsel to the
Participants) pursuant to Section 7.11 of the Credit
Agreement.
(f) By its signature
below, each Participant and the Swap Counterparty hereby instructs
the Agent and the Security Trustee to execute and deliver this
Agreement.
(g) Each Party hereby
confirms that this Agreement shall be a “ Loan Operative
Document” for all purposes of the Credit Agreement and the
other Loan Operative Documents.
[Signature pages follow.]
IN WITNESS WHEREOF, this Agreement has
been executed and delivered by the parties hereto by their duly
authorized officer or representative as of the date set forth
above.
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ACY SN 19002
LIMITED,as a
Borrower
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
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ACY SN 19003
Limited,as a
Borrower
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Director
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ACY E-175 LLC,as a Borrower
By: AeroCentury Corp.,
its Manager
By: /s/ ▇▇▇▇▇
▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title: SVP
Operations
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PARTICIPANTS
NORDDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK
BRANCH, as a Participant
By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title:
Senior Director
By:
/s/ Andreas Trunk
Name: Andreas
Trunk
Title: Senior
Director
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NORDDEUTSCHE LANDESBANK GIROZENTRALE, as
Swap Counterparty
By:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
Name:
▇▇. ▇▇▇▇▇▇
▇▇▇▇▇
Title:
Senior Legal Counsel Authorized Signatory
By:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Title:
Senior Legal Counsel Authorized Signatory
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NORDDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK
BRANCH, as Agent
By:
/s/ ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇
▇▇▇▇▇▇
Title:
Senior Director
By: /s/
Andreas Trunk
Name: Andreas
Trunk
Title: Senior
Director
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