Exhibit 2.3
Execution Version
DATED AS OF JANUARY 17, 2007
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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SECOND SUPPLEMENTAL AGREEMENT
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SECOND SUPPLEMENTAL AGREEMENT dated as of January 17, 2007 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 the Sale and Purchase Agreement.
WHEREAS, Seller and Buyer entered into the First Supplemental Agreement amending
the Sale and Purchase Agreement and agreeing certain additional matters.
WHEREAS, Seller and Buyer wish to make certain further 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 Second 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
Second Supplemental Agreement and:
"FIRST SUPPLEMENTAL AGREEMENT" means the Supplemental Agreement dated
as of November 30, 2006 between Seller and Buyer amending and
supplementing the Sale and Purchase Agreement.
"SALE AND PURCHASE AGREEMENT" means the Sale and Purchase Agreement
dated as of September 28, 2006 between Seller and Buyer.
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 Second Supplemental Agreement.
2. AMENDMENTS
The Sale and Purchase Agreement is amended as follows:
2.1 The definition of the expressions ""KNOWLEDGE", "KNOWLEDGE" or any
other similar knowledge qualification in this Agreement with respect
to Seller" as set forth in Clause 1.1 is deleted and replaced with the
following:
""KNOWLEDGE", "KNOWLEDGE" or any other similar knowledge qualification
in this Agreement with respect to Seller means the actual knowledge of
(i) (other than with respect to Clauses 3.9.3 or 3.9.9 (solely with
respect to Manuals and Technical Records),
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3.13 and 8.2) Jim Morris or Sue Noack, (ii) (solely with respect to
Clauses 3.9.3 and 3.9.9 (but solely with respect to Manuals and
Technical Records)) Phil Nassar, and (iii) (solely with respect to
Clause 8.2) Jeff Young and Stanton Brunner provided that for all
purposes of this Agreement none of the foregoing Persons shall be
deemed to have actual knowledge of any matter of which any of such
Persons obtained actual knowledge of on or after November 30, 2006 and
of which any director or employee of Buyer or any Affiliate of Buyer
has obtained the same actual knowledge on or after November 30, 2006
as a consequence of, or in connection with, Buyer providing the
management services to which reference is made in Clauses 6.4 and 6.9
or in relation to the EAST Management Agreement.".
2.2 The following definitions are inserted in alphabetical order in Clause
1.1:
"EAST MANAGEMENT AGREEMENT ASSIGNMENT AGREEMENT" means the assignment,
assumption and amendment agreement relating to the East Management
Agreement in the agreed form.
"EX-IM 2001 MANAGEMENT AGREEMENTS" means together the management
agreements to which Seller is a party which constitute Virtual Data
Room documents 11.49.31, 11.50.29 and 11.51.31 (each an "EX-IM 2001
MANAGEMENT AGREEMENT").", and
""MANAGEMENT AGREEMENT EVENT OF DEFAULT" has the meaning ascribed to
such term in the Ex-Im 2001 Financing Documents.".
2.3 The following expressions are inserted as new additional final
sentences in Clause 2.2:
"Buyer shall use all commercially reasonable efforts to ensure that
all ancillary documentation needed to be executed and delivered in
connection with the transfer of the EAST Management Agreement to Buyer
is so executed and delivered as soon as practicable. The Parties
acknowledge that as from January 17, 2007 Clifford Chance LLP is
holding in escrow execution pages of the East Management Agreement
Assignment Agreement executed by Seller and Buyer respectively and
that upon the delivery to Clifford Chance LLP of execution pages of
the East Management Agreement Assignment Agreement executed by EAST,
the transfer of the East Management Agreement from Seller to Buyer
shall be unconditionally effective. In addition, the Parties hereto
shall use all good faith efforts to complete the transfer of all of
the Material Contracts and Designated Contracts to Buyer no later than
March 31, 2007.".
2.4 The following expression is inserted in the final line of Clause 2.5
immediately following the expression "any GATX Retained Entity":
"and provided further that as between Seller and Buyer the provisions
of Clause 2.5 shall apply notwithstanding that the stated terms of any
relevant document transferring the relevant Liabilities to which
reference is made therein may otherwise provide that the relevant GATX
Retained Entity or Buyer may bear any other liability in favour of any
other party and Seller and Buyer agree to bear such other liability in
accordance with the provisions of Clause 2.5 and indemnify and hold
harmless the relevant GATX Retained Entity or Buyer, as the case may
be, in respect thereof.".
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2.5 The expression "and" which appears as the end of Clause 2.5.7 is
deleted.
2.6 The punctuation mark "," which appears at the end of line 4 of Clause
2.5.8 is deleted and replaced with the expression "; and".
2.7 The following provision is inserted as Clause 2.5.9:
"2.5.9 notwithstanding anything to the contrary in this Agreement, all
Liabilities in respect of any claim in damages made by any JV Member
or other third party in relation to, or as a consequence of, the use
of any particular form of document, or the terms thereof, which is, or
are, agreed by Buyer to transfer any Specified Ownership Interest (or
Material Contract or Designated Contract) transferred on any Deferred
Date rather than any other form (or terms thereof) or the manner in
which any Specified Ownership Interest (or Material Contract or
Designated Contract) is transferred,".
2.8 The following expression is inserted at the end of the final line of
Clause 2.5 immediately following the expression "GATX Retained
Entity":
"and for the avoidance of doubt it is confirmed that the Liabilities
under each Designated Contract and each Material Contract specified in
Clauses 2.5.2 and 2.5.3 shall, without any further action on the part
of any Party, be Assumed Liabilities as of the Closing Date or the
applicable Deferred Date, as the case may be, whether or not such
Designated Contract or Material Contract is transferred to Buyer".
2.9 The following expression is inserted as an additional sentence
commencing in the final line of Clause 2.10.2 immediately following
the expression "by Seller.":
"In the event that any cash distribution as aforesaid is received by
Seller following the Deferred Date on which the related Remaining
Ownership Interest is transferred to Buyer and receipt of the same had
not been anticipated for the purposes of calculating the sum payable
by Buyer in order to satisfy Buyer's obligation to pay the relevant
Deferred Date Allocated Amount, Seller shall promptly pay to Buyer the
amount equal to such cash distribution so received by Seller.".
2.10 The following expression is inserted as an additional sentence
commencing in the final line of Clause 2.10.3 immediately following
the expression "Assumed Liabilities.":
"Buyer and Seller acknowledge that, notwithstanding anything to the
contrary contained in this Agreement, neither Seller nor any other
GATX Retained Entity will have any liability to Buyer and, save as set
forth in Clause 2.5.9, Buyer will not have any liability to Seller or
any other GATX Retained Entity, in relation to, or as a consequence
of, the use of any particular form of document, or the terms thereof,
which is, or are, agreed by Seller and Buyer to transfer any Specified
Ownership Interest (or Material Contract or Designated Contract)
transferred on any Deferred Date rather than any other form (or terms
thereof) or the manner in which any Specified Ownership Interest (or
Material Contract or Designated Contract) is transferred.".
2.11 The expression "to Seller" which appears in line 3 of Clause 3 is
deleted and replaced with the expression "by Seller".
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2.12 The expression "or" which appears in line 4 of Clause 3 immediately
prior to the expression "document" is deleted and replaced with ","
and the following expression is inserted in such line 4 immediately
following the term "document 23.01.03":
"or Virtual Data Room document 23.01.04".
2.13 The following expression is inserted in line 6 of Clause 3 immediately
following the term "of such date":
", or (iii) for any matter of which any director or employee of Buyer
or any Affiliate of Buyer has obtained actual knowledge on or after
November 30, 2006 as a consequence of, or in connection with, Buyer
providing management services to which reference is made in Clauses
6.4 and 6.9 or in relation to the EAST Management Agreement or in
connection with the obtaining of the consent of any JV Member to which
reference is made in this Agreement or the process of agreeing any
documentation needed to effect the transfer of any Remaining Ownership
Interest".
2.14 Clause 3.13 is deleted and replaced with the following:
"3.13 Deliberately Omitted".
2.15 The expression "or EAST" is inserted in line 2 of Clause 5.6
immediately following the expression "Asset Owning Entity".
2.16 The following provision is inserted as Clause 7.1.5:
"7.1.5 Each of Buyer and Seller shall pay fifty per cent. (50%) of
the fees and expenses of (a) any external counsel (i) which
acts for any JV Member (other than Seller or any Affiliate
of Seller) incurred in connection with the provision of the
relevant JV Member's consent to the transfer of Seller's
Specified Ownership Interest in the relevant Partnership
Asset Owning Entity or the effecting of such transfer or any
substitution of a guarantee provided by Seller or any other
GATX Retained Entity with a guarantee provided by Buyer, or
(ii) which acts for Continental Airlines, Inc. or the Ex-Im
2001 Financiers in connection with the arrangements
contemplated by this Agreement so far as they relate to the
Ex-Im 2001 Financed Aircraft, and (b) Clifford Chance LLP
and Vedder, Price, Kaufman & Kammholz, P.C. in relation to
the preparation of a bible of transaction documents in
relation to the transactions contemplated by this
Agreement.".
2.17 The following provisions are inserted as Clauses 7.10.3 and 7.10.4,
respectively:
"7.10.3 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 and Seller
procures the issue of any letter of credit to which
reference is made in Section 4.02(a) of the trust agreement
to which such Specified Ownership Interest is constituted,
Buyer shall promptly, but in any event within three (3)
Business Days of receipt of notice from Seller that Buyer is
obligated to reimburse
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Seller pursuant to this Clause 7.10.3, reimburse to Seller
any and all amounts or costs Seller is required to pay or
bear under, or in connection with, any indemnity which
Seller provides to the issuer of such letter of credit (but
not including any amount paid by Seller in order to procure
the issue of such letter of credit), 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).
7.10.4 It is hereby confirmed, for the avoidance of doubt, that
following the acquisition of Seller's Specified Ownership
Interest in the trust to which reference is made in Clause
7.10.1, Buyer shall be able to transfer such Specified
Ownership Interest to any other person in accordance with
the provisions of the trust agreement pursuant to which such
Specified Ownership Interest is constituted without the need
for the prior approval of Buyer provided that any such
transfer shall not release Buyer from, or otherwise have any
effect on, the liability of Buyer under Clause 7.10.2 or
Clause 7.10.3 in relation to any payment which Seller is
required to make under the guarantee to which reference is
made in Clause 7.10.2 or any amount or cost which Seller is
required to pay or bear to which reference is made in Clause
7.10.3.".
2.18 Clause 7.17 is amended as follows:
(a) the sub-clause forming part thereof which is
erroneously numbered "7.10.3" is correctly numbered
"7.17.3"; and
(b) the following provision is inserted as Clause
7.17.4:
"7.17.4 If by April 17, 2007 Seller has not been released
from its obligations under any of the Ex-Im 2001
Management Agreements, Seller shall formally
request the Ex-Im 2001 Financiers to release Seller
from each of the Ex-Im 2001 Management Agreements
from which Seller has not been released and use all
commercially reasonable efforts to procure such
releases. In the event that any such release has
not been obtained by July 17, 2007, Seller shall
within the period of ten (10) days thereafter
procure the issue in favour of Seller of a letter
of credit 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 sum equal to the then net present value, as
reasonably determined by Seller, of the aggregate
fee (based on an arm's length quotation obtained by
Seller from a reputable entity (other than GECAS,
ILFC or an affiliate of either thereof) generally
engaged in providing management and administration
services) which Seller would be required to pay to
a person reasonably acceptable to Seller to provide
the management and administration services required
to be provided by Seller under each of the Ex-Im
2001 Management Agreements to which Seller remains
a party for the then remaining term of the same and
able to be drawn
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at any time by Seller in the event, and during the
continuance, of any Management Agreement Event of
Default, such that Seller shall appoint such a
person to provide such management and
administration services and apply the proceeds of
such letter of credit in effecting payment of such
aggregate fee.".
2.19 The sign "(*)" which appears in paragraph 27 of Part 2 of Schedule 5
is deleted.
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 Second
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 Second Supplemental Agreement.
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IN WITNESS WHEREOF, the parties to this Second Supplemental Agreement have
caused this Second 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
Title: Vice President and Chief
Financial Officer
Buyer
MACQUARIE AIRCRAFT LEASING
LIMITED
By: /s/ Stephen Moulton
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Name: Stephen Moulton
Title: Attorney in Fact
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