EXECUTION COPY
AMENDMENT NO. 1 TO THE
364-DAY SENIOR SECURED CREDIT
AGREEMENT DATED AS OF OCTOBER 25, 2005
Dated as of July 18, 2006
AMENDMENT NO. 1 TO THE 364-DAY SENIOR SECURED CREDIT AGREEMENT DATED AS OF
OCTOBER 25, 2005 (THIS "AMENDMENT") by and among
(a) XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, as Trustee under
the Trust Agreement (MSN 337), dated as of October 19, 2005 ("BORROWER
337"), with the Beneficial Owner (as defined below) as trustor;
(b) XXXXX FARGO BANK NORTHWEST, NATIONAL ASSOCIATION, as Trustee under
the Trust Agreement (MSN 342), dated as of October 19, 2005 ("BORROWER 342"
and, together with Borrower 337, the "BORROWERS"), with the Beneficial
Owner as trustor;
(c) AIRCASTLE IRELAND NO. 2 LIMITED, an Irish private limited liability
company, as trustor and sole beneficiary of each of the Trusts (in such
capacity, the "BENEFICIAL OWNER");
(d) CITIBANK, N.A., a national banking association, in its capacity as
a Lender under the Credit Agreement (as hereinafter defined); and
(e) CITIBANK, N.A., in its capacity as agent for the Lenders (in such
capacity, and together with any successor agent appointed in accordance
with the terms of Section 10.7 of the Credit Agreement, the "AGENT").
PRELIMINARY STATEMENTS:
(1) The Borrowers, the Lender and the Agent have entered into the 364-Day
Senior Secured Credit Agreement dated as of October 25, 2005 (the "CREDIT
AGREEMENT"; capitalized terms used herein but not defined shall be used herein
as defined in the Credit Agreement).
(2) The Borrowers, the Lender and the Agent have agreed to amend the Credit
Agreement as hereinafter set forth.
SECTION 1. AMENDMENTS TO CREDIT AGREEMENT. The Credit Agreement is,
effective as of the date hereof hereby amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended as follows:
(i) By inserting the following new definitions in alphabetical order:
"'ADDITIONAL LOAN' means a Term Loan made pursuant to the last
sentence of Section 2.1(a)."
"'APPLICABLE PERCENTAGE' means (a) prior to an IPO, 90%, and (b)
from and after an IPO, 67%."
"'FIRST AMENDMENT' means Amendment No. 1 to this Agreement dated
as of July 18, 2006."
"'IPO' means an initial offering and sale of shares of Aircastle
Investment Limited's capital stock to the public, whether pursuant to a
registration statement registering such shares of capital stock with
the Securities and Exchange Commission in compliance with Section 5 of
the Securities Act of 1933, as amended, or otherwise."
(ii) By revising the definition of "APPLICABLE AIRCRAFT ADVANCE RATE"
to read as follows:
"'APPLICABLE AIRCRAFT ADVANCE RATE' with respect to any Eligible
Aircraft means, at any time, the Applicable Percentage."
(iii) By revising the definition of "LOAN AMOUNT" to read as follows:
"'LOAN AMOUNT' means, with respect to any Eligible Aircraft at any
time, the Applicable Aircraft Borrowing Base of such Aircraft at such
time."
(iv) By revising the definition of "STATED TERMINATION DATE" to read as
follows:
"'STATED TERMINATION DATE' means March 31, 2007."
(v) By revising the definition of "TOTAL TERM LOAN COMMITMENT" to read
as follows:
"'TOTAL TERM LOAN COMMITMENT' means a principal amount equal to
$110,248,500, minus principal amounts of the Loans prepaid from time to
time, plus $25,116,000."
(b) Section 2.1 of the Credit Agreement is hereby amended as follows:
(i) By adding the following sentence at the end of Section 2.1(a):
"Subject to the terms of this Agreement and the conditions set
forth in Section 2 of the First Amendment, each Lender also severally
agrees to make an Additional Loan to each of Borrower 337 and Borrower
342, on any Business Day specified by such Borrowers on or prior to
October 31, 2006, in each case in an amount equal to such Lender's
Applicable Commitment Percentage of $12,558,000; provided, that the
Lenders will not be required
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and shall have no obligation to make any such Loan (i) so long as a
Default or an Event of Default has occurred and is continuing or (ii)
if the Agent has accelerated the maturity of any of the Loans as a
result of an Event of Default."
(ii) By inserting at the beginning of clause (B) of Section 2.1(c) the
following: "except in the case of any Additional Loan,".
(iii) By inserting at the end of the last sentence of Section 2.1(c)(i)
the following: "or, in the case of any Additional Loan, as directed by the
Applicable Borrower".
(c) Section 2.3 of the Credit Agreement is hereby amended by adding a
new Section 2.3(b)(v) to read as follows:
"(v) Within three Business Days of the occurrence of an IPO, the
Borrowers shall prepay the principal of the Loans such that the
aggregate principal amount of the Loans then outstanding does not
exceed Applicable Aircraft Borrowing Base (as in effect after giving
effect to such IPO) of the Eligible Aircraft that have not been
released from the Lien of this Agreement minus the amount of any
prepayments made between July 18, 2006 and the date of such IPO."
(d) Section 2.10 of the Credit Agreement is hereby amended by adding
the following at the end thereof: "or, in the case of any Additional Loans,
for such other lawful purposes as may be determined by the Applicable
Borrower."
SECTION 2. Conditions to Making Loans. The obligations of the Lenders to
make the Additional Loans is subject to the conditions precedent that on the
date of the making of the Additional Loans (the "ADDITIONAL LOAN DATE"):
(a) The Agent shall have received, in form and substance satisfactory
to the Agent and the Lenders, the following:
(i) executed originals of this First Amendment and a Consent
substantially in the form of Exhibit A to the First Amendment (the
"CONSENT" and, together with this Amendment, the "AMENDMENT DOCUMENTS")
executed by the Guarantors, Holdings and the Parent;
(ii) (A) the favorable written opinion of Milbank, Tweed, Xxxxxx &
XxXxxx LLP, counsel to the Credit Parties and the Parent, (B) the
favorable written opinion of Ray, Xxxxxxx & Xxxxxxx, counsel to Xxxxx
Fargo Bank Northwest, National Association, the trustee under each of
the Trust Agreements, and (C) the favorable opinion of A&L Goodbody,
Irish counsel to the Beneficial Owner, in each case covering such
matters as the Agent may reasonably require;
(iii) resolutions of the boards of directors or other appropriate
governing body (or of the appropriate committee thereof) of each Credit
Party (or,
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in the case of a Credit Party that is a trust, resolutions of the
appropriate board or committee of each trustee thereof) certified by
its secretary or assistant secretary as of the Additional Loan Date,
approving and adopting the Amendment Documents to be executed by such
Person, and authorizing the execution and delivery thereof;
(iv) a certificate of the secretary or assistant secretary of each
Credit Party certifying that the Organizational Documents of such
Person, as delivered to the Agent on the Closing Date, have not in any
way been amended or modified and remain in full force and effect as of
the Additional Loan Date;
(v) if applicable, a certificate issued as of a recent date by the
Secretary of State or comparable official of the jurisdiction of
formation of each Credit Party as to the formation, due existence and
good standing of such Credit Party; and
(vi) a Borrowing Notice on behalf of each Applicable Borrower.
(b) The representations and warranties of the Credit Parties and the
Holdings set forth in Article VI of the Credit Agreement and in each of the
other Loan Documents shall be true and correct in all material respects on
and as of the Additional Loan Date, with the same effect as though such
representations and warranties had been made on and as of such date, except
to the extent that such representations and warrants expressly relate to an
earlier date; and
(c) In the good faith judgment of the Agent and the Lenders:
(i) no litigation, action, suit, investigation or other arbitral,
administrative or judicial proceeding shall be pending or threatened
which could reasonably be likely to result in a Material Adverse
Effect; and
(ii) the Credit Parties and Holdings shall have received all
approvals, consents and waivers, and shall have made or given all
necessary filings and notices as shall be required to consummate the
transactions contemplated hereby without the occurrence of any default
under, conflict with or violation of (A) any applicable law, rule,
regulation, order or decree of any Governmental Authority or arbitral
authority or (B) any agreement (including, without limitation,
servicing agreements), document or instrument to which any of the
Credit Parties is a party or by which any of them or their properties
is bound;
(d) No default or Event of Default specified in Article IX of the
Credit Agreement shall have occurred and be continuing.
SECTION 3. Confirmation of the Representations and Warranties. The
Borrowers hereby represent and warrant, on and as of the date hereof and the
Additional Loan Date, that the representations and warranties contained in the
Credit Agreement are correct in all material respects on and as of the date
hereof or the Additional Loan Date (as the case may be),
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after giving effect to this Amendment, as though made on and as of the date
hereof or the Additional Loan Date (as the case may be), other than any such
representations or warranties made only as of, or relating to, an earlier date.
SECTION 4. Reference to and Effect on the Credit Agreement and Loan
Documents.
(a) On and after the date hereof, each reference in the Credit
Agreement to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Credit Agreement, and each reference in the Loan
Documents to "the Credit Agreement", "thereunder", "thereof" or words of
like import referring to the Credit Agreement, shall mean and be a
reference to the Credit Agreement, as amended by this Amendment.
(b) The Credit Agreement and Loan Documents, as specifically amended by
this Amendment, are and shall continue to be in full force and effect and
are hereby in all respects ratified and confirmed. Without limiting the
generality of the foregoing, the Security Instruments and all of the
Collateral described therein do and shall continue to secure the payment of
all Obligations of the Credit Parties under the Loan Documents to the
extent provided therein, in each case as amended by this Amendment.
(c) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender or the Agent under the Credit Agreement or
any of the Loan Documents, nor constitute a waiver of any provision of the
Credit Agreement or any of the Loan Documents.
SECTION 5. Costs and Expenses. The Borrowers agree to pay on demand all
costs and expenses of the Agent in connection with the preparation, execution,
delivery, administration, modification and amendment of this Amendment and the
other instruments and documents to be delivered hereunder (including, without
limitation, the reasonable fees and expenses of counsel for the Agent) in
accordance with the terms of Section 11.5 of the Credit Agreement. In addition,
the Borrowers shall pay any and all stamp and other taxes payable or determined
to be payable in connection with the execution and delivery of this Amendment
and the other instruments and documents to be delivered hereunder, and agrees to
save the Agent and each Lender harmless from and against any and all liabilities
with respect to or resulting from any delay in paying or omission to pay such
taxes.
SECTION 6. Execution in Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute but one and the same agreement. Delivery
of an executed counterpart of a signature page to this Amendment by telecopier
shall be effective as delivery of a manually executed counterpart of this
Amendment.
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SECTION 7. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
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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.
AIRCASTLE IRELAND NO. 2 LIMITED,
as Beneficial Owner
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: Director
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Signature Page to Aircastle Amendment No. 1
BORROWERS:
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XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Owner Trustee under the Trust
Agreement (MSN 337), dated as of October
19, 2005, to which it is a party
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name: Xxx X. Xxxxx
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Title: Vice President
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XXXXX FARGO BANK NORTHWEST,
NATIONAL ASSOCIATION,
not in its individual capacity but solely
as Owner Trustee under the Trust
Agreement (MSN 342), dated as of October
19, 2005, to which it is a party
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name: Xxx X. Xxxxx
------------------------------
Title: Vice President
------------------------------
Signature Page to Aircastle Amendment No. 1
CITIBANK, N.A.,
as Agent and as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Director
Signature Page to Aircastle Amendment No. 1
EXHIBIT A TO AMENDMENT NO. 1
CONSENT
Dated as of ______ __, 2006
The undersigned hereby consents to the foregoing Amendment No. 1 (the
"AMENDMENT") and hereby confirms and agrees that:
(a) notwithstanding the effectiveness of the Amendment, each of the Loan
Documents to which the undersigned is a party is, and shall continue to be, in
full force and effect and is hereby ratified and confirmed in all respects,
except that, on and after the effectiveness of such Amendment, each reference in
each such Loan Document to the "Credit Agreement", "thereunder", "thereof" or
words of like import shall mean and be a reference to the Credit Agreement as
amended by the Amendment, and
(b) the Security Instruments (if any) to which the undersigned is a party
and all of the Collateral described therein do, and shall continue to, secure
the payment of all of obligations purported to be secured thereby.
[GUARANTOR] [PARENT] [HOLDINGS]
By
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Title:
