Contract
EXHIBIT 10.1
EXECUTION
VERSION
SECOND
AMENDMENT, dated as of September 14, 2007 (this “Amendment”) to
the AMENDED AND RESTATED CREDIT AGREEMENT, dated as of December 15, 2006 (as
amended by the First Amendment dated as of January 22, 2007and as further
amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”), made by and among AIRCASTLE INVESTMENT HOLDINGS 2 LIMITED, an
exempted company organized and existing under the laws of Bermuda, AIRCASTLE
IRELAND NO. 1 LIMITED, a limited liability company incorporated in Ireland,
AIRCASTLE IRELAND NO. 3 LIMITED, a limited liability company incorporated in
Ireland, and certain Holdings Subsidiary Trusts and Holdings SPCs designated
as
Borrowing Affiliates (such Holdings Subsidiary Trusts and Holdings SPCs being
referred to individually as a “Borrower” or collectively as the
“Borrowers”), JPMORGAN CHASE BANK, N.A., a national banking association,
and each other financial institution party hereto, and JPMORGAN CHASE BANK,
N.A., in its capacity as agent for the Lenders (“Lender”).
W
I T N E S S E T H:
WHEREAS,
pursuant to the Credit Agreement, the Lenders have agreed to make, and have
made, certain loans and other extensions of credit to the Borrower;
WHEREAS,
the Borrower has requested that certain provisions of the Credit Agreement
be
amended as set forth below;
WHEREAS,
the Lenders are willing to agree to such amendments but only on the terms and
conditions contained in this Amendment;
NOW,
THEREFORE, the parties hereto hereby agree as follows:
SECTION
1. Defined Terms. Terms
defined in the Credit Agreement and used herein shall have the meanings given
to
them in the Credit Agreement.
SECTION
2. Amendment to Section 1.1 (Defined
Terms). Section 1.1 of the Credit Agreement is hereby
amended as follows:
(a) The
following defined
terms are hereby added in proper alphabetical order:
“Conversion
and Maintenance Agreement”
means the Conversion and Maintenance Agreement by and among Aircastle Investment
Holdings 2 Limited, PSF Conversions LLP and Israel Aerospace Industries Ltd.,
Bedek Aviation Group, Aircraft Division, dated as of June 20, 2007.
“Eligible
Conversion Aircraft” means
each of the three Boeing 747 aircraft bearing manufacturer’s serial numbers MSN
25702, MSN 25700 and MSN 25703, respectively, which are the subject of the
Conversion and Maintenance Agreement.
“Special
Permitted Conversion Cost” has
the meaning assigned to such term in Section 2.1(a).
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(b) The
definition of
“Individual Eligible Asset Borrowing Base” is hereby further amended by
inserting the following new clause at the end of each of clause (a) and clause
(b) thereof:
“plus
for each of the Eligible
Conversion Aircraft, the Special Permitted Conversion Cost of such Eligible
Asset”
SECTION
3. Amendment to Section 2.1(a)
(Commitment). Section 2.1(a) of the Credit Agreement is
hereby amended by replacing the “and” in front of section (y) with a comma and
inserting the following new clause immediately before subsection
(ii):
“(z)
the cost of the conversion of each
of the Eligible Conversion Aircraft from passenger configuration to a freighter
configuration pursuant to the Conversion and Maintenance Agreement in an amount
per Eligible Conversion Aircraft up to $27,500,000 (the “Special Permitted
Conversion Cost”) and”
SECTION
4. Amendment to Section 2.1(b)
(Amounts). Section 2.1(b) of the Credit Agreement is
hereby amended by inserting the following language after the word Qualified
Conversion and before the bracket":
“or
the financing of Special Permitted
Conversion Costs”
SECTION
5.
Amendment to Section 2.3(b) (Mandatory
Prepayments). Section 2.3(b) of the Credit Agreement is
hereby amended by adding a new subsection (v) to read as follows:
“(v)
If Bermuda Holding 2 Ltd or any of
the Borrowers shall receive any liquidated damages, warranty or performance
guaranty payments under the Conversion and Maintenance Agreement in respect
of
any Eligible Conversion Aircraft, the Borrowers, jointly and severally, shall
promptly and in any event within ten Business Days after receipt of such
payment, deposit such amounts in the account designated as the “Collection
Account” pursuant to the Lockbox Agreements, and if any such amount which
comprises a return reimbursement or rebate of any Special Permitted Conversion
Cost of any related Eligible Asset, such amounts will be applied to prepay
the
Loans in respect of such Eligible Conversion Aircraft in an amount equal to
the
amount of such payment.”
SECTION
6. Amendment to Section 2.12 (Use of
Proceeds). Section 2.12 of the Credit Agreement is
hereby amended by inserting the following new clause at the end of each of
clause (a) thereof:
“plus
for each of the Eligible
Conversion Aircraft, the Special Permitted Conversion Cost of such Eligible
Asset”
SECTION
7. Amendment to Section 5.2 (Conditions of
Revovling Loans). Section
5.2 of the Credit Agreement is hereby amended by adding a new subsection (h)
to
read as follows:
“(h)
in respect of Loans to finance
Special Permitted Conversion Costs relating to Eligible Conversion Aircraft,
the
Agent shall have received a copy of the Notice and Acknowledgment of PSF
Conversions LLP and Israel Aerospace Industries Ltd., Bedek Aviation Group,
Aircraft Division as set forth in Exhibit T executed by each of the parties
thereto (other than the Agent).”
SECTION
8.Amendment to Section 8.2 (Capital
Expenditures). Section 8.2 of the Credit Agreement is
hereby amended by inserting the following language after the word Qualified
Conversion:
“and
Special Permitted Conversion Costs
in respect of and Eligible Conversion Aircraft”
SECTION
9. New Exhibit T.
The
Credit Agreement is
hereby amended by adding a new Exhibit T thereto in the form attached hereto
as
Exhibit A.
SECTION
10.Representations and
Warranties. Each of the representations and warranties
made by any Loan Party in or pursuant to the Loan Documents shall be true and
correct in all material respects on and as of the date hereof as if made as
of
the date hereof, except for representations and warranties expressly stated
to
relate to a specific earlier date, in which case such representations and
warranties were true and correct in all material respects as of such earlier
date.
SECTION
11. Effect on the Loan
Documents. Except as specifically amended or provided
for above, (i) the Credit Agreement and all other Loan Documents shall continue
to be in full force and effect and are hereby in all respects ratified and
confirmed and (ii) the execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of any Lender,
the
Revolving Credit Facility Agent or the General Administrative Agent under any
of
the Loan Documents, nor constitute a waiver of any provision of any of the
Loan
Documents.
SECTION
12. GOVERNING LAW. THIS
AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF
NEW YORK.
SECTION
13. Execution in
Counterparts. This Amendment may be executed by one or
more of the parties to this Amendment on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute one
and the same instrument.
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IN
WITNESS WHEREOF, the parties hereto have caused this instrument to be made,
executed and delivered by their duly authorized officers as of the day and
year
first above written.
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AIRCASTLE
INVESTMENT HOLDINGS 2 LIMITED
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By:
/s/ Xxx Xxxxxxxx
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Name:
Xxx Xxxxxxxx
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Title:
Chairman/CEO
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AIRCASTLE
IRELAND NO. 1 LIMITED
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By:
/s/ Xxx Xxxxxxxx
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Name:
Xxx Xxxxxxxx
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Title:
Director
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AIRCASTLE
IRELAND NO. 3 LIMITED
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By:
/s/ Xxx Xxxxxxxx
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Name:
Xxx Xxxxxxxx
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Title:
Director
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CONSTITUTION
AIRCRAFT LEASING (IRELAND) 2 LIMITED
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By:
/s/ Xxx Xxxxxxxx
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Name:
Xxx Xxxxxxxx
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Title:
Director
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XXXXX
FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, as Owner Trustee under
the
various Trust Agreements
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By:
/s/ Xxxxx Xxxxxxxx
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Name:
Xxxxx Xxxxxxxx
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Title:
Vice President
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AIRCRAFT
MSN 29045 LLC
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By:
/s/ Xxx Xxxxxxxx
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Name:
Xxx Xxxxxxxx
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Title:
Manager
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AIRCRAFT
MSN 637 LLC
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By:
/s/ Xxx Xxxxxxxx
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Name:
Xxx Xxxxxxxx
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Title:
Manager
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AIRCRAFT
MSN 25587 LLC
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By:
/s/ Xxx Xxxxxxxx
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Name:
Xxx Xxxxxxxx
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Title:
Manager
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AIRCRAFT
MSN 25702 LLC
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By:
/s/ Xxx Xxxxxxxx
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Name:
Xxx Xxxxxxxx
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Title:
Manager
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AIRCRAFT
MSN 27137 LLC
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By:
/s/ Xxx Xxxxxxxx
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Name:
Xxx Xxxxxxxx
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Title:
Manager
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AIRCRAFT
MSN 28231 LLC
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By:
/s/ Xxx Xxxxxxxx
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Name:
Xxx Xxxxxxxx
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Title:
Manager
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AIRCRAFT
MSN 29345 LLC
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By:
/s/ Xxx Xxxxxxxx
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Name:
Xxx Xxxxxxxx
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Title:
Manager
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JPMORGAN
CHASE BANK, N.A., as Agent and as a Lender
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By:
/s/ Xxxxxxx Xxxxxx
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Name:
Xxxxxxx Xxxxxx
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Title:
Managing Director
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BEAR
XXXXXXX CORPORATE LENDING INC., as a Lender
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By:
/s/ Xxxxxxx Xxxxxxxx
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Name:
Xxxxxxx Xxxxxxxx
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Title:
Authorized Signatory
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CITICORP
NORTH AMERICA INC., N.A., as a Lender
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By:
/s/ Xxxxxx Xxxxxxxx
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Name:
Xxxxxx Xxxxxxxx
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Title:
Vice President
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