Exhibit 2.2
Execution Version
DATED AS OF NOVEMBER 30, 2006
BETWEEN
GATX FINANCIAL CORPORATION
as Seller
and
MACQUARIE AIRCRAFT LEASING LIMITED
as Buyer
RELATING TO THE SALE AND PURCHASE
of
THE GATX AIR BUSINESS
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SUPPLEMENTAL AGREEMENT
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SUPPLEMENTAL AGREEMENT dated as of November 30, 2006 between GATX Financial
Corporation, a Delaware corporation ("SELLER"), and Macquarie Aircraft Leasing
Limited, a company incorporated under the laws of the Republic of Ireland
("BUYER").
WITNESSETH:
WHEREAS, Seller and Buyer entered into that certain Sale and Purchase Agreement
dated as of September 28, 2006 (the "SALE AND PURCHASE AGREEMENT") relating to
the Business.
WHEREAS, Seller and Buyer wish to make certain amendments to the Sale and
Purchase Agreement and supplement certain of the agreements set forth in the
Sale and Purchase Agreement.
Accordingly, for good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, Seller and Buyer agree as follows:
1. DEFINITIONS
1.1 Definitions
As used in this Supplemental Agreement (including the recitals hereto)
and save as otherwise defined herein, terms defined in the Sale and
Purchase Agreement shall bear the same respective meanings ascribed to
them in the Sale and Purchase Agreement when used in this Supplemental
Agreement.
1.2 Other Definitional and Interpretative Provisions
Clause 1.2 of the Sale and Purchase Agreement is hereby deemed to be
incorporated herein as if all references therein to "this Agreement"
were references to this Supplemental Agreement.
2. AMENDMENTS
The Sale and Purchase Agreement is amended as follows:
2.1 The expression ", Jim Robinson" which appears in lines 4 and 5 of the
definition ascribed to the term "Knowledge" in Clause 1.1 is deleted;
2.2 The following definitions are inserted in alphabetical order in Clause
1.1:
""AERCAP" means AerCap B.V. or any of its Affiliates.
""EAST CONSENT" means the consent identified in paragraph 8 of
Schedule 3."
""EXCEPTED WHOLLY OWNED ASSET OWNING ENTITIES" means together
GATX/Caljet Corp., Huntsmen Corporation and GATX Air Leasing, Inc.,
the respective details of which are set forth in Part 1 of Schedule 2
(each an "EXCEPTED WHOLLY OWNED ASSET OWNING ENTITY")."
""OVERSEAS OFFICE LEASES" means together the lease agreement, business
centre services agreement and deed of lease identified in paragraphs
30, 31 and 32, respectively, of Part 2 of Schedule 5 (each an "
OVERSEAS OFFICE LEASE")."
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2.3 The following expression is inserted in line 2 of Clause 2.1.2
immediately following the term "except":
"(a) as in the case of each Excepted Wholly Owned Asset Owning Entity
as specified in Clause 2.1.3, and (b)".
2.4 The following provision is inserted as a new sub-clause numbered
2.1.3:
"Notwithstanding any other provision of this Agreement, the completion
and sale of the Specified Ownership Interest in each Excepted Wholly
Owned Asset Owning Entity shall take place only on the Deferred Date
on which the Specified Ownership Interest in the Partnership Asset
Owing Entity held by such Excepted Wholly Owned Asset Owning Entity is
to take place in accordance with the terms of this Agreement."
2.5 The following expression is inserted in line 6 of Clause 2.10.2
immediately following the expression ", as the case may be":
", provided that, in the case of the completion of the sale and
purchase of any Remaining Ownership Interests on any Deferred Date
which occurs on or prior to January 31, 2007 (or, in the event of the
relevant sale and purchase not having occurred on or prior to such
date as a direct result of the failure of Seller to use all reasonable
expedition in having such sale and purchase completed on or prior to
such date, any later date), Buyer's obligation hereunder to pay the
relevant Deferred Date Allocated Amount shall be satisfied by Buyer
paying to Seller such relevant Deferred Date Allocated Amount less the
sum of all cash distributions made in the ordinary course of business
by the relevant Partnership Aircraft Owning Entity to the JV members
thereof after the Closing Date and prior to the earlier of (a) the
relevant Deferred Date and (b) January 31, 2007 (or such later date as
aforesaid) and received by Seller."
2.6 The following expression is inserted in line 4 of Clause 3 immediately
following the term "document 23.01.02":
"or Virtual Data Room document 23.01.03".
2.7 The first sentence of Clause 6.3 is deleted entirely and replaced with
the following:
"Buyer acknowledges and agrees that neither Buyer nor any Affiliate of
Buyer shall as part of the transactions contemplated by this Agreement
or as a consequence hereof acquire any rights to use the term "GATX"
and agrees to cause the Transferred Employees, other than the Deferred
Employees, to cease using the GATX name or any derivative thereof;
provided, that, the Transferred Employees shall be permitted to use
the GATX name or any derivate thereof for a period of sixty (60) days
following the Closing Date in connection with ordinary course business
meetings and correspondence (such as distributing business cards) so
long as in doing so such Transferred Employees (i) clearly state that
they are employees of Buyer and that they have no authority to act on
behalf of Seller or any of its Affiliates and (ii) in no way take any
actions that legally bind, or purport to legally bind, Seller or any
of its Affiliates; and provided, further that, notwithstanding the
foregoing provision, after the Closing Date, Buyer shall, and shall
cause the Transferred Employees to, only use forms of leases, letters
of intent,
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agreements and similar legal documents that do not contain the GATX
name or any derivative thereof, and which do not impose any liability
on or otherwise obligate Seller or any of its Affiliates in any way."
2.8 The existing Clause 6.5 is deleted entirely and replaced with the
following:
"6.5 Moneys Received by Buyer Group with respect to Focused Air
Aircraft after Closing
If closing of the Focused Air Arrangements is delayed beyond the
Closing Date (in whole or in part), Buyer will hold all:
6.5.1 sale and/or rental proceeds received and retained by members
of Buyer Group with respect to Focused Air Aircraft on trust
for Seller and will pay such proceeds to Seller promptly
after receipt; and
6.5.2 fees received and retained under the GATX/CL Air JV
Management Agreement by members of Buyer Group with respect
to the sale of a Focused Air Aircraft to AerCap on trust for
Seller and will pay such fees to Seller promptly after
receipt.
For the avoidance of doubt, it is hereby agreed that all assets and
amounts set forth in Clauses 6.5.1 and 6.5.2 (but no other moneys
received by Buyer Group with respect to the Focused Air Aircraft) are
not being purchased by Buyer are and shall remain the property of
Seller (including for United States federal income tax purposes).
If and to the extent Buyer or any of its Affiliates is obligated to
make a payment to GATX/CL Air in respect of any Focused Air Aircraft
as a result of Buyer or any such Affiliate being a JV Member (each
such payment being a "CAPITAL CONTRIBUTION"), Seller shall reimburse
the amount of such Capital Contribution to Buyer promptly after
Buyer's first written demand."
2.9 The expression "date hereof" which appears in the final line of Clause
6.6 is deleted and replaced by the expression "Closing Date".
2.10 The existing Clause 7.10 is deleted entirely and replaced with the
following:
"7.10 Arrangements in relation to the ATA Aircraft
7.10.1 If the ATA Aircraft Financier consent referred to in #1 of Schedule 3
is not obtained by the Closing Date, as soon as reasonably practicable
following the Closing Date, (i) Seller will, subject to the same not
constituting a Default (as such term is defined in the Leases to which
the ATA is subject), transfer its Specified Ownership Interest in
relation to the ATA Aircraft to an owner trust, and (ii) subject to
Clause 10, Seller will sell and Buyer will buy Seller's Specified
Ownership Interest in such owner trust at no additional consideration.
7.10.2 If pursuant to Clause 7.10.1 Buyer buys Seller's Specified Ownership
Interest in the owner trust referred to in Clause 7.10.1 and Seller
remains a guarantor under the guarantee given by Seller to the ATA
Aircraft Financiers, Buyer shall promptly, but in any event within
three (3) Business Days of receipt of notice from Seller that Buyer is
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obligated to reimburse Seller pursuant to this Clause 7.10.2,
reimburse to Seller any and all amounts Seller is required to pay
under such guarantee, together with any expenses (including reasonable
expenses of investigation and reasonable attorney's fees and expenses)
incurred by Seller in connection therewith (it being understood and
agreed that any disputes with respect to any such reimbursement shall
be governed in accordance with the provisions of Clause 11.3).
2.11 The following provision is inserted as Clause 7.17:
"7.17 Arrangements in relation to the Ex-Im 2001 Financings
7.17.1 In the event of all consents of JV Members of any
Partnership Asset Owning Entity which is a participant in
any Ex-Im 2001 Financing required for the sale and purchase
of the Specified Ownership Interest in such Partnership
Asset Owning Entity pursuant to this Agreement being
obtained prior to all the consents of the Ex-Im 2001
Financiers and the accomplishment of the actions identified
in paragraph 2 of Schedule 3 in relation to the relevant
Ex-Im 2001 Financing being obtained or taken, as the case
may be, subject to Clause 10, the sale and purchase of such
Specified Ownership Interest will be effected on the third
(3rd.) Business Day (or such later date as may be agreed
between Seller and Buyer) following the date on which all
such consents have been obtained.
7.17.2 So long as Seller remains a guarantor under any of the
guarantees given by Seller in connection with any of the
Ex-Im 2001 Financing Documents, Buyer shall promptly, but in
any event within three (3) Business Days of receipt of
notice from Seller that Buyer is obligated to reimburse
Seller pursuant to this Clause 7.17.3, reimburse to Seller
any and all amounts Seller is following the Closing Date
required to pay under such guarantees (or any of them),
together with any expenses (including reasonable expenses of
investigation and reasonable attorney's fees and expenses)
incurred by Seller in connection therewith (it being
understood and agreed that any disputes with respect to any
such reimbursement shall be governed in accordance with the
provisions of Clause 11.3). In the event that Seller remains
as such a guarantor as of the expiration of the second
anniversary of the Closing Date, Buyer shall within the
thirty (30) day period commencing on the such anniversary
procure that (a) all GATX Retained Entity Obligations under
all the Ex-Im 2001 Financing Documents are released, or (b)
letters of credit are issued by Macquarie Bank Limited, or
another bank with a credit rating not less than the credit
rating then held by Macquarie Bank Limited and otherwise
reasonably acceptable to Seller, in the respective
percentages of the principal amount from time to time of
each loan guaranteed by Ex-Im Bank under any of the Ex-Im
2001 Financing Documents to the extent that the same is a
"full recourse" obligation of Seller under its guarantee
issued in relation to such loan each of which letter of
credit is by its terms to remain in effect so long as Seller
continues to have liability under the relevant such
guarantee and to be able to be drawn at any time by Seller
in the event of Buyer failing to make any related payment
mentioned in this Clause 7.17.2 in the amount which Buyer
has so failed to pay.
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7.10.3 Buyer shall not purchase or procure the purchase of all of
the Ownership Interests in any of the 737 Partners, unless
prior thereto, or concurrently therewith, all GATX Retained
Entity Obligations under all the related Ex-Im 2001
Financing Documents have been released.
2.12 The following provision is inserted as Clause 7.18:
7.18 Arrangements in relation to the Office Leases
7.18.1 Buyer acknowledges that all of the Liabilities of the
relevant GATX Retained Entity under each of the Overseas
Office Leases are Assumed Liabilities and that Buyer shall
promptly, but in any event within three (3) Business Days of
receipt of notice from Seller that the relevant GATX
Retained Entity has had to make any payment in respect of
any such Liability with details of such payment, Buyer is
obligated to reimburse Seller (either on its own behalf or
on behalf of the relevant other GATX Retained Entity), such
amount so paid by the relevant GATX Retained Entity,
together with any expenses (including reasonable expenses of
investigation and reasonable attorney's fees and expenses)
incurred by Seller or the relevant other GATX Retained
Entity in connection therewith (it being understood and
agreed that any disputes with respect to any such
reimbursement shall be governed in accordance with the
provisions of Clause 11.3).
7.18.2 Buyer shall, no later than December 31, 2006, give notice to
Seller as to whether it desires that Seller gives, or
procures that there is given, notice terminating the
Overseas Office Leases in relation to the offices in
Toulouse and Tokyo. In the event of Buyer notifying Seller
that either or both such Overseas Office Leases should be
terminated or failing to give any such notice by January 1,
2007, Seller shall promptly (but in any event within ten
(10) Business Days of the relevant notice being given to
Seller), give, or procure that there is given, notice of
such termination to be effective at the earliest date
possible pursuant to the terms of the relevant Overseas
Office Lease.
2.13 The following expression is inserted in line 1 of Clause 10.5.3
immediately following the expression "Schedule 3":
"(other than the EAST Consent")",
it being agreed for the avoidance of doubt that such amendment is made
without any consequential effect on the obligations of the parties
under Clause 7.1.1 of the Sale and Purchase Agreement.
2.14 The existing Clause 11.2.2 is deleted entirely and replaced with the
following:
"Buyer hereby indemnifies Seller and its Affiliates against and agrees
to hold each of them harmless from any and all Damages actually
suffered by Seller or any of its Affiliates and their respective
officers, directors, employees, successors and permitted assigns in
connection with, arising out of or resulting from (i) any breach of
the representations and warranties of Buyer, (ii) any breach of or
failure to comply with any
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covenant or agreement made or to be performed by Buyer pursuant to
this Agreement, (iii) any Assumed Liability, (iv) the ownership by
Seller or its Affiliates of the Transferred Specified Ownership
Interests, or (v) Buyer's offer of employment (including the content
of such offer of employment) or failure to offer employment to any
U.S. Employee or group of U.S. Employees; provided, that (a) Buyer
shall not indemnify Seller or its Affiliates for any Damages pursuant
to this item (v) to the extent arising out of actions taken or not
taken by Seller or any of its Affiliates not related to any decision
by Buyer to make and/or to not make an offer of employment to any such
U.S. Employee and (b) in no event shall Buyer or any of its Affiliates
be responsible in connection with, or be required to provide any
indemnity hereunder in connection with, any Retained Liabilities.".
2.15 The term "of" which appears in the first line of Clause 11.8 is
deleted and replaced by the following expression:
"commencing on the earlier of (a) the date on which the insurances
hereinafter described in this Clause 11.8 are effected and (b)
April 1, 2007 and ending on the date occurring".
2.16 The following expression is inserted as an additional sentence at the
send of Clause 12.2:
"It is hereby confirmed for the avoidance of doubt that each of
Seller's rights of termination under Clause 12.1 is available for
exercise only prior to the Closing."
3. MISCELLANEOUS
3.1 The provisions of Clauses 13.1, 13.2, 13.3, 13.4, 13.5, 13.6, 13.8 and
13.10 are hereby deemed to be incorporated herein as if all references
therein to "this Agreement" were references to this Supplemental
Agreement.
3.2 References to "this Agreement" in the Sale and Purchase Agreement are
deemed to be references to the Sale and Purchase Agreement as amended
by this Supplemental Agreement.
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IN WITNESS WHEREOF, the parties to this Supplemental Agreement have caused this
Supplemental Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
Seller
GATX FINANCIAL CORPORATION
By: /s/ Robert C. Lyons
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Name: Robert C. Lyons
Vice President and Chief
Title: Financial Officer
Buyer
MACQUARIE AIRCRAFT LEASING
LIMITED
By: /s/ Stephen Cook
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Name: Stephen Cook
Title: Attorney in Fact
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