EXHIBIT 10.7
▇ ▇ ▇ ▇ ▇ ▇ ▇ ▇ LIMITED LIABILITY PARTNERSHIP
C H A N C E
EXECUTION VERSION
DATED 22 DECEMBER 2003
between
EFG AIRCRAFT (HOLDINGS) LTD.
EFGA AIRCRAFT LIMITED
EFGB AIRCRAFT LIMITED
EFG AIRCRAFT LIMITED
EFG AIRCRAFT (IRELAND) LIMITED
as Borrowers
▇'▇▇▇▇▇▇▇ LEASING LIMITED
▇'▇▇▇▇▇▇▇ LEASING (IRELAND) LIMITED
▇'▇▇▇▇▇▇▇ LEASING CORPORATION
as Export Lessees
GATX FINANCIAL CORPORATION
GFC
and
CREDIT LYONNAIS
as Agent
-------------------------------------------------
DEED OF AMENDMENT
relating to a
US$ 719,000,000 Facility Agreement
dated 20 December 2001
-------------------------------------------------
CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation....................................... 3
2. Amendment To The Facility Agreement.................................. 3
3. Representations And Warranties....................................... 7
4. Continuity And Further Assurance..................................... 7
5. Miscellaneous........................................................ 8
-1-
THIS DEED OF AMENDMENT (this "DEED") is made on 22 December 2003
BETWEEN
(1) EFG AIRCRAFT (HOLDINGS) LTD., a company incorporated under the laws of the
Cayman Islands and having its registered office at Walkers SPY Limited,
▇▇▇▇▇▇ House, ▇▇▇▇ Street, P.O. Box 908GT, ▇▇▇▇▇▇ Town, Grand Cayman,
Cayman Islands ("EFGH");
(2) EFGA AIRCRAFT LIMITED, a company incorporated under the laws of the Cayman
Islands and having its registered office at Walkers SPV Limited, ▇▇▇▇▇▇
House, ▇▇▇▇ Street, P.O. Box 908GT, ▇▇▇▇▇▇ Town, Grand Cayman, Cayman
Islands ("EFGA");
(3) EFGB AIRCRAFT LIMITED, a company incorporated under the laws of the Cayman
Islands and having its registered office at Walkers SPV Limited, ▇▇▇▇▇▇
House, ▇▇▇▇ Street, P.O. Box 908GT, ▇▇▇▇▇▇ Town, Grand Cayman, Cayman
Islands ("EFGB");
(4) EFG AIRCRAFT LIMITED, a company incorporated under the laws of the Cayman
Islands and having its registered office at Walkers SPV Limited, ▇▇▇▇▇▇
House, ▇▇▇▇ Street, P.O. Box 908GT, ▇▇▇▇▇▇ Town, Grand Cayman, Cayman
Islands ("EFG");
(5) EFG AIRCRAFT (IRELAND) LIMITED, a company incorporated under the laws of
Ireland and having its registered office at West Block Building,
International Financial Services Centre, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇ ("EFGI");
(each of EFGH, EFGA, EFGB, EFG and EFGI a "BORROWER" and together the
"BORROWERS")
(6) ▇'▇▇▇▇▇▇▇ LEASING LIMITED, a company incorporated under the laws of the
State of Delaware and having its principal place of business at Four
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ("OLL");
(7) ▇'▇▇▇▇▇▇▇ LEASING (IRELAND) LIMITED, a company incorporated under the laws
of Ireland and having its registered office at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇, ▇▇▇▇▇▇▇ ("OLI);
(8) ▇'▇▇▇▇▇▇▇ LEASING CORPORATION, a company incorporated under the laws of
the State of Delaware, United States of America and having its principal
place of business at Four ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ("OLC");
(each of OLL, OLI and OLC an "EXPORT LESSEE" and together the "EXPORT
LESSEES")
(9) GATX FINANCIAL CORPORATION, a company incorporated under the laws of the
State of Delaware, United States of America and having its principal place
of business at Four ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
("GFC"); and
-2-
(10) CREDIT LYONNAIS, a banking institution established under the laws of
France acting through its main office at ▇-▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇, as agent for and on behalf of the Lenders and the National
Agents (the "AGENT")
RECITALS
(A) Pursuant to an aircraft facility agreement dated 20 December 2001 entered
into between, inter alias, the Borrowers, the Export Lessees, GFC and the
Agent (as amended from time to time prior to the date hereof, the
"FACILITY AGREEMENT"), the Finance Parties agreed to make available to the
Borrowers a term facility upon the terms and subject to the conditions set
out therein.
(B) The Borrowers, the Export Lessees, GFC and the Agent have agreed that the
provisions of the Facility Agreement shall be amended in accordance with
the terms of this Deed.
IT IS AGREED as follows,
1. DEFINITIONS AND INTERPRETATION
Unless otherwise defined in this Deed, capitalised terms and expressions
used in this Deed shall (unless the context otherwise requires) have the
meanings given to them in Appendix X to the Facility Agreement. Rules of
interpretation as applicable to this Deed are also set out in Appendix X.
2. AMENDMENT TO THE FACILITY AGREEMENT
With effect from the date hereof the Facility Agreement shall be amended
as follows:
(a) Clause 9 (Trigger Event) shall be deleted and replaced with the following:
"9. TRIGGER EVENT
9.1 Subject to Clause 9.4, at any time when a Trigger Event has occurred
and is continuing, the Security Trustee shall, if directed to do so
by each of the National Agents, send a written notice (a "TRIGGER
EVENT NOTICE") of the relevant Trigger Event to GFC and following
receipt of any Trigger Event Notice and so long thereafter as the
relevant Trigger Event is continuing each Export Lessee shall:
(a) pay to the Security Trustee, all rent, cash deposits and Maintenance
Reserves which are received or paid for the account of such Export
Lessee by, from, or on behalf of, any Lessee pursuant to any Lease
(other than indemnity payments and third party liability insurance
proceeds received by such Export Lessee for its own account and not
to replenish the Security Deposit);
(b) deposit with the Security Trustee the originals of all letters of
credit then held by such Export Lessee or GFC (or any other person)
on its behalf by way of security in respect of any of the Aircraft
and execute or procure the execution of in favour of the Security
Trustee an irrevocable power of attorney with
-3-
respect to such letters of credit and ensure that any letters of
credit in respect of any of the Aircraft it receives shall have the
Security Trustee as the named beneficiary. In the event that the
relevant Export Lessee is entitled to make a claim under any such
letter of credit it shall promptly notify the Security Trustee. The
Security Trustee shall promptly thereafter take such action as shall
be necessary to enable the relevant Export Lessee to make the
relevant claim, provided that such Export Lessee shall ensure that
any amounts paid under any such letters of credit shall be paid to
such party and such account as the Security Trustee shall direct;
and
(c) observe the Mortgage registration covenant set forth in Clause 7.8
as if the proviso thereto did not apply,
9.2 Following the service of a Trigger Event Notice and so long
thereafter as the relevant Trigger Event is continuing, the
Security Trustee may exercise its rights pursuant to:
(a) the relevant Lease Security Assignments and Operating Lessor
Security Assignments to serve notice on any Lessee requiring such
Lessee to pay all monies payable at any time thereafter to an Export
Lessee pursuant to the relevant Lease to such account as the
Security Trustee shall direct in such notice; and
(b) the relevant Borrower Security Assignments to serve notice on any:
(i) Lessee requiring such Lessee to pay all monies payable at any
time thereafter to an Export Lessee pursuant to the relevant
Lease; and
(ii) Export Lessee requiring such Export Lessee to pay all monies
payable at any time thereafter to a Borrower pursuant to the
relevant Credit Sale Agreement,
in each case to such account as the Security Trustee shall direct in
such notice.
9.3 Subject to no Termination Event having occurred and being
continuing, and subject to a Trigger Event Notice having been
served, in the event of an Export Lessee becoming obliged pursuant
to the terms of any Lease to return any Lessee Security or
Maintenance Reserves, or make any payment determined on the basis of
the amount of any Lessee Security or Maintenance Reserves, to a
Lessee, or any circumstance arising in respect of which the relevant
Export Lessee would be entitled, in the absence of the provisions of
this Clause 9, to apply such Lessee Security or Maintenance Reserves
towards satisfaction of any obligation of the relevant Lessee in
accordance with the provisions of the relevant Lease, the Security
Trustee shall return to such Export Lessee any such Lessee Security
or Maintenance Reserves which it has received pursuant to Clause 9.1
or shall make such payment as directed by GFC subject to GFC having
certified in writing to the Security Trustee that such Export Lessee
has become so obliged or so entitled, as the case may be.
-4-
9.4 If at any tune after a Trigger Event Notice has been served a
Trigger Event shall cease to be continuing, provided no Termination
Event shall have occurred and be continuing, the Security Trustee
shall (a) promptly pay or return (as applicable) to the relevant
Export Lessee all Trigger Event Security which it received pursuant
to Clause 9.1 (and not returned by the Security Trustee to the
relevant Export Lessee in accordance with Clause 9.3 above), and in
the case of all cash amounts together with accrued interest thereon
(such interest to be calculated by the Agent, acting in its sole
discretion), together with any powers of attorney that it may have
received in respect of any letters of credit, except to the extent
that any such amounts have been applied by the Security Trustee in
accordance with the provisions of Clause 12.8.1, and (b) revoke each
notice given to any Lessee or as the case may be, any Export Lessee
as contemplated by Clause 9.2. In such case, the Security Trustee
agrees to co-operate at GFC's cost in any steps required for any
letters of credit issued in the name of the Security Trustee to be
reissued in the name of the relevant Export Lessee or GFC, as shall
be so requested.
(b) Clause 12.8 (Application of Trigger Event Security) shall be deleted and
replaced with the following:
"12.8 APPLICATION OF RENT SECURITY
12.8.1 Subject to a Trigger Event Notice having been served and provided
that no Termination Event has occurred and is continuing, on each
Repayment Date occurring after service of such Trigger Event Notice,
the Security Trustee shall apply all Rent Security (if any) held by
the Security Trustee in respect of each Loan on such Repayment Date,
together with accrued interest thereon, as follows:
(a) first, in payment of an amount of up to the total interest due
and payable in respect of such Loan on such Repayment Date to
each of the National Agents in the proportions specified in
the Loan Supplement relating to such Loan for application by
each National Agent in or towards the payment of such interest
on a pro rota and pari passu basis to the relevant Lenders in
respect of such Loan;
(b) second, in repayment of an amount of up to the total principal
amount due and payable in respect of such Loan on such
Repayment Date to each of the National Agents in the
proportions specified in the Loan Supplement relating to such
Loan for application by each National Agent in or towards the
payment of such principal on a pro rata and pari passu basis
to the relevant Lenders in respect of such Loan;
(c) third, to the relevant Finance Parties and/or the Export
Credit Agencies on a pro rata and pari passu basis in respect
of all other amounts due and payable to such Finance Parties
and/or Export Credit Agencies on such Repayment Date under
this Agreement or any other Transaction Document which remain
unpaid, and
-5-
(d) fourth, in reimbursement of the Finance Parties and/or the
Export Credit Agencies of any and all Expenses due and payable
to any of the Finance Parties and/or the Export Credit
Agencies pursuant to any of the Transaction Documents as a
result of the occurrence of a Trigger Event,
and the Borrowers shall be deemed to have satisfied their
obligations to make such payments in respect of such Loans to
the extent of the amounts so applied and the amount of the
Rent (as defined in the relevant Credit Sale Agreement)
payable by each relevant Export Lessee shall be deemed for the
purposes of such Credit Sale Agreement to have been reduced by
an amount equal to the amount so applied on such Repayment
Date in respect of the Loans relating to the Aircraft which
such Credit Sale Agreement relates.
Any Rent Security held by the Security Trustee on any Repayment Date after
the application effected on such date in accordance with this Clause
12.8.1 shall be retained by the Security Trustee as Trigger Event Security
pending further application thereof in accordance with (i) this Clause
12.8.1 on the next Repayment Date or (ii) Clause 12.7.1 (APPLICATION OF
PROCEEDS FOLLOWING A TERMINATION EVENT), as the case may be. For the
avoidance of doubt, if the Rent Security is not sufficient to pay all
amounts due and outstanding from each of the Export Lessees pursuant to
the terms of each of the Credit Sale Agreements, GFC shall, upon first
written demand from the Security Trustee pursuant to the terms of the
Guarantee, pay to the Facility Agent an amount equal to the sums due and
outstanding under each of the Credit Sale Agreements and the Facility
Agent shall apply any sums received from GFC in accordance with this
Clause 12.8.1.
12.8.2 After the occurrence of a Termination Event and for so long as it
is continuing, the Security Trustee shall have the right to treat
all or any part of the Trigger Event Security as Proceeds and apply
such amounts in accordance with Clause 12.7 (APPLICATION OF
PROCEEDS FOLLOWING A TERMINATION EVENT)."
(c) Paragraph (g) of the definition of "Proceeds" in Appendix X to the
Facility Agreement shall be deleted and replaced with the following:
"(g) any and all amounts received or recovered under any Lease following
the occurrence of a Termination Event; and"
(d) a new definition of "Rent Security" shall be inserted in Appendix X to the
Facility Agreement as follows:
""RENT SECURITY" means any and all rent paid under a Lease and received by
the Security Trustee (whether in the form of cash or otherwise) pursuant
to Clause 9 of the Facility Agreement."
(e) a new definition of "Operating Lessor Security Assignment" shall be
inserted in Appendix X to the Facility Agreement as follows:
-6-
4.2 TRANSACTION DOCUMENT
For the avoidance of doubt, the parties hereto confirm that this Deed
shall be a Transaction Document.
4.3 GUARANTEE
GFC hereby acknowledges and consents to the amendments to the Facility
Agreement set out herein and hereby confirms that the Guarantee shall
remain in full force and effect in respect of each Export Lessee's
obligations under the Facility Agreement.
5. MISCELLANEOUS
5.1 INCORPORATION OF TERMS
The provisions of Clause 23 (Governing Law and Jurisdiction) of the
Facility Agreement shall be incorporated into this Deed as if set out in
full herein and as if references therein to "this Agreement" are
references to this Deed.
5.2 COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument.
EXECUTED AND DELIVERED AS A DEED by the hands of duly authorised representatives
of the parties hereto the day and year first before written.
-7-
SIGNATURES
THE BORROWERS
EFG AIRCRAFT (HOLDINGS) LTD.
By: /s/ [ILLEGIBLE]
----------------------------
Attorney-in-Fact
In the presence of:
/s/ [ILLEGIBLE]
----------------------------
Name: [ILLEGIBLE]
Title: [ILLEGIBLE]
EFGA AIRCRAFT LIMITED
By: /s/ [ILLEGIBLE]
-------------------------------
Attorney-in-Fact
In the presence of:
/s/ [ILLEGIBLE]
----------------------------
Name: [ILLEGIBLE]
Title: [ILLEGIBLE]
EFGB AIRCRAFT LIMITED
By:/s/ [ILLEGIBLE]
-------------------------------
Attorney-in-Fact
In the presence of:
/s/ [ILLEGIBLE]
----------------------------
Name:[ILLEGIBLE]
Title:[ILLEGIBLE]
EFG AIRCRAFT LIMITED
By:/s/[ILLEGIBLE]
-------------------------------
Attorney-in-Fact
In the presence of:
/s/ [ILLEGIBLE]
----------------------------
Name:[ILLEGIBLE]
Title:[ILLEGIBLE]
-8-
EFG AIRCRAFT (IRELAND) LIMITED
By:/s/ [ILLEGIBLE]
-------------------------
Attorney-in-fact
In the presence of:
/s/ [ILLEGIBLE]
----------------------------
Name:[ILLEGIBLE]
Title:[ILLEGIBLE]
THE EXPORT LESSEES
▇'▇▇▇▇▇▇▇ LEASING LIMITED
By:/s/[ILLEGIBLE]
In the presence of:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Administrative Assistant
▇'▇▇▇▇▇▇▇ LEASING (IRELAND) LIMITED
By:/s/[ILLEGIBLE]
In the presence of:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Administrative Assistant
▇'▇▇▇▇▇▇▇ LEASING CORPORATION
By: /s/ [ILLEGIBLE]
---------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
In the presence of:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Administrative Assistant
-9-
GFC
GATX FINANCIAL CORPORATION
By: /s/ [ILLEGIBLE]
In the presence of:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Administrative Assistant
THE AGENT
CREDIT LYONNAIS
By:
In the presence of:
_____________________
Name:
Title:
-10-
By:
In the presence of:
___________________
Name:
Title:
The Agent
CREDIT LYONNAIS
By: /s/ [ILLEGIBLE]
-----------------
In the presence of:
/s/ [ILLEGIBLE]
--------------------
Name:
Title:
[ILLEGIBLE]
-11-
