Exhibit 2.5
Execution Version
DATED AS OF JANUARY 31, 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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FOURTH SUPPLEMENTAL AGREEMENT
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FOURTH SUPPLEMENTAL AGREEMENT dated as of January 31, 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, the
Second Supplemental Agreement and the Third 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 Fourth 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 Fourth
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;
"SECOND SUPPLEMENTAL AGREEMENT" means the Supplemental Agreement dated
as of January 17, 2007 between Seller and Buyer amending and
supplementing the Sale and Purchase Agreement;
"THIRD SUPPLEMENTAL AGREEMENT" means the Supplemental Agreement dated as
of January 29, 2007 between Seller and Buyer amending and supplementing
the Sale and Purchase Agreement; and
"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 Fourth Supplemental Agreement.
2. AMENDMENTS
The Sale and Purchase Agreement is amended as follows:
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2.1 The following definitions are inserted in alphabetical order in Clause
1.1:
"BUYER FRENCH EMPLOYER" means Macquarie Aircraft Leasing Services
(France) SARL, a societe a responsabilite limitee created and existing
under French law having its registered office at 41, avenue Georges V,
75008 Paris, France; and
"BUYER UK EMPLOYER" means Macquarie Aircraft Leasing Services (UK)
Limited, a company incorporated in England having its registered office
at Level 35, CityPoint, 1 Ropemaker Street, London EC2Y 9HD, England.
2.2 Sub clause (e) of Clause 9.1.1 shall be deleted in its entirety and
replaced with the following:
"It is acknowledged that the UK Employees have transferred to the Buyer
UK Employer and the Buyer shall procure that it or the Buyer UK Employer
shall be responsible for all and any UK Buyer Assumed Claims. A UK Buyer
Assumed Claim is any claim or right of action that a UK Employee or his
or her "appropriate representative" may have or assert whether arising
under English law, European Union law, common law, statute or otherwise
in any jurisdiction whatsoever that may be or is brought by or on behalf
of any UK Employee after Closing whether against the Buyer, the Buyer UK
Employer, other Affiliate of the Buyer, the Seller or an Affiliate of
the Seller (or any director, officer, employee or agent of any such
entity) arising out of or in connection with the sale of the Business as
contemplated by the Agreement, any allegation that the transfer of any
UK Employee to the Buyer UK Employer has not been effective, the
employment of the UK Employee, the relocation of that employment, the
termination of that employment or any other matter whatsoever except for
any UK Seller Retained Claim. A UK Seller Retained Claim is any claim or
right of action that a UK Employee or his or her "appropriate
representative" may have or assert whether arising under English law,
European Union law, common law, statute or otherwise in any jurisdiction
whatsoever whether against the Buyer, the Buyer UK Employer, other
Affiliate of the Buyer, the Seller or an Affiliate of the Seller (or any
director, officer, employee or agent of such entity) that does not arise
out of or in connection with the sale of the Business as contemplated by
the Agreement, any allegation that the transfer of any UK Employee to
the Buyer UK Employer has not been effective or the relocation or
termination of the employment of a UK Employee after Closing but that
otherwise may be or is brought by or on behalf of any UK Employee
because of any act or omission of the Seller or an Affiliate of the
Seller relating to the employment of the UK Employee prior to Closing
(but for the avoidance of doubt a Seller Retained Claim shall not
include any claim for which the Buyer or Buyer UK Employer is otherwise
liable but in respect of which the provision of any benefits or any
payment, damages or compensation is determined (in whole or in part) by
reference to the UK Employee's period of continuous employment and that
includes employment with the Seller or an Affiliate of the Seller). The
Buyer shall indemnify and hold harmless the Seller and any Seller
Affiliate against all and any claim, liability, compensation, damages,
cost (including reasonable legal costs) or expenses that any Seller or
Seller Affiliate may incur arising out of or in connection with all and
any UK Buyer Assumed Claim being brought or asserted against the Seller
and/or Seller Affiliate."
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2.3 Sub clause (e) of clause 9.1.2 shall be deleted in its entirety and
replaced with the following:
"It is acknowledged that the French Employees have transferred to the
Buyer French Employer and the Buyer shall procure that it or the Buyer
French Employer shall be responsible for all French Buyer Assumed
Claims. A French Buyer Assumed Claim is any claim or right of action
that a French Employee may have or assert whether arising under French
law, European Union law, statute or otherwise in any jurisdiction
whatsoever that may be or is brought by any French Employee after
Closing whether against the Buyer, the Buyer French Employer, other
Affiliate of the Buyer, the Seller or an Affiliate of the Seller (or any
director, officer, employee or agent of such entity) arising out of or
in connection with the sale of the Business as contemplated by the
Agreement, any allegation that the transfer of any French Employee to
the Buyer French Employer has not been effective, the employment of any
French Employee, the relocation of that employment, the termination of
that employment or any other matter whatsoever except for any French
Seller Retained Claim. A French Seller Retained Claim is any claim or
right of action that a French Employee may have or assert whether
arising under French law, European Union law, statute or otherwise in
any jurisdiction whatsoever whether against the Buyer, the Buyer French
Employer, other Affiliate of the Buyer, the Seller or an Affiliate of
the Seller (or any director, officer, employee or agent of such entity)
that does not arise out of or in connection with the sale of the
Business as contemplated by the Agreement, any allegation that the
transfer of any French Employee to the Buyer French Employer has not
been effective or the relocation or termination of the employment of a
French Employee after Closing but that otherwise may be or is brought by
or on behalf of any French Employee because of any act or omission of
the Seller or an Affiliate of the Seller relating to the employment of
the French Employee prior to Closing (but for the avoidance of doubt a
Seller Retained Claim shall not include any claim for which the Buyer or
Buyer French Employer is otherwise liable but in respect of which the
provision of any benefits or any payment, damages or compensation is
determined (in whole or in part) by reference to the French Employee's
period of continuous employment and that includes employment with the
Seller or an Affiliate of the Seller). The Buyer shall indemnify and
hold harmless the Seller and any Seller Affiliate against all and any
claim, liability, compensation, damages, cost (including reasonable
legal costs) or expenses that any Seller or Seller Affiliate may incur
arising out of or in connection with all and any French Buyer Assumed
Claim being brought against the Seller and/or Seller Affiliate."
2.4 The following expression is inserted as a new additional Clause 9.1.2A:
"Procedures for claims under the indemnities in Clause 9.1.1(e) or
9.1.2(e)
9.1.2 A.1 Where the Seller or any Seller Affiliate seeks
indemnification under Clause 9.1.1(e) or 9.1.2 (e) it will
give prompt notice to the Buyer of the assertion of any
claim, or the commencement of any suit, action or
proceeding in respect of which indemnity may be sought
under that Clause and will provide the Buyer with all
information that the Buyer may reasonably request. The
failure to so notify the Buyer shall not relieve the
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Buyer of its obligations under Clause 9.1.1(e) or 9.1.2
(e), except to the extent that such failure shall have
materially adversely prejudiced the Buyer.
9.1.2 A.2 Subject to the terms of this Clause 9.1.2 A the Buyer shall
be entitled to participate in the defense of any claim
asserted by any UK Employee or French Employee and, subject
only to the express limitations set forth in this Clause
9.1.2 A, shall be entitled to control and appoint lead
counsel for that defense, in each case at its expense. If
the Buyer shall acknowledge, in writing, to the Seller or
Seller Affiliate as appropriate that without prejudice to
any party's right to contest the validity of the claim the
Buyer shall be obligated under the terms of its indemnity
hereunder in connection with such claim by a UK Employee or
French Employee, then the Buyer shall be entitled (a) to
take control of the defense and investigation of such
lawsuit or action (including the right to settle any such
law suit or action) and, (b) to employ and engage attorneys
of its own choice reasonably satisfactory to the Seller or
Seller Affiliate to handle and defend the same unless the
named parties to such action or proceeding include both the
Buyer and/or a Buyer Affiliate and the Seller and/or a
Seller Affiliate and the Seller/Seller Affiliate has been
advised in writing by counsel that joint counsel for the
Buyer and Seller Parties shall result in a conflict under
the applicable rules of professional conduct, in which
event the Seller/Seller Affiliate shall be entitled, at the
Buyer's expense to separate counsel of its own choice
reasonably satisfactory to the Buyer; provided that the
Buyer shall not agree to any compromise or settlement with
respect to the claim brought by the UK Employee or French
Employee that (i) does not include a complete release of
the Seller/Seller Affiliate from all liability with respect
thereto and/or (ii) imposes any liability, restriction or
damages on the Seller/Seller Affiliate without the consent
of the Seller/Seller Affiliate, which consent shall not be
unreasonably withheld or delayed. The Seller/Seller
Affiliate may, at its own cost, participate in (but not
control) the investigation, trial and defense of such claim
by a UK Employee or French Employee and any appeal arising
therefrom. If the Buyer fails to assume the defense of such
claim within fourteen (14) calendar days after receipt of
the notice of claim by the Seller/Seller Affiliate, the
Seller/Seller Affiliate against which such claim has been
asserted will (upon delivering notice to such effect to the
Buyer) have the right to undertake, at the Buyer's cost,
risk and expense, the defense of such claim on behalf of
and for the account and risk of the Buyer. In no event
shall the Seller/Seller Affiliate have authority to settle
any such claim without the consent of the Buyer, which
consent shall not be unreasonably withheld or delayed.
9.1.2 A.3 If the Buyer makes any payment on any claim by a UK
Employee or French Employee, the Buyer shall be subrogated,
to the extent of such payment, to all rights and remedies
of the Seller/Seller Affiliate to any insurance benefits or
other claims of the Seller/Seller Affiliate with respect to
such claims.
9.1.2 A.4 Subject to the Seller/Seller Affiliate being reimbursed
promptly by the Buyer in respect of any expenses incurred
during and receiving from the Buyer
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appropriate compensation to reflect any management time
involved in such defense each party shall cooperate in good
faith, and cause their respective Affiliates to cooperate,
in the defense of any claims by any UK Employee or French
Employee and shall furnish or cause to be furnished such
personnel, records, information and testimony, and attend
those conferences, discovery proceedings, hearings, trials
or appeals, as may be reasonably requested in connection
with any of the foregoing.
3. PAYMENT
In consideration of the Buyer agreeing to the amendments set out in
clause 2 above the Seller shall pay the Buyer within 7 Business Days
after the date of this Fourth Supplemental Agreement the US $ equivalent
of one million one hundred and fifty thousand Euro (1,150,000) such
equivalence to be based on the exchange rate as at 31 January 2007 by
payment to the account separately designated by Buyer. It is agreed that
the US $ amount shall be US $ .
4. MISCELLANEOUS
4.1 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 Fourth Supplemental
Agreement.
4.2 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 Fourth Supplemental Agreement.
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IN WITNESS WHEREOF, the parties to this Fourth Supplemental Agreement have
caused this Fourth 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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