EXHIBIT 2.2
DATED AS OF MAY 29, 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
----------
SEVENTH SUPPLEMENTAL AGREEMENT
----------
SEVENTH SUPPLEMENTAL AGREEMENT dated as of May 29, 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, the Third Supplemental Agreement, the Fourth
Supplemental Agreement, the Fifth Supplemental Agreement and the Sixth
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 Seventh 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 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;
"FOURTH SUPPLEMENTAL AGREEMENT" means the Supplemental Agreement dated as
of January 31, 2007 between Seller and Buyer amending and supplementing the
Sale and Purchase Agreement;
"FIFTH SUPPLEMENTAL AGREEMENT" means the Supplemental Agreement dated as of
February 6, 2007 between Seller and Buyer amending and supplementing the
Sale and Purchase Agreement;
"SIXTH SUPPLEMENTAL AGREEMENT" means the Supplemental Agreement dated as of
May 16, 2007 between Seller and Buyer amending and supplementing the Sale
and Purchase Agreement;
"OMNIBUS AGREEMENTS" means together the Omnibus Agreements each dated 14
March 2007 between Seller, Buyer and certain other persons in relation to
certain of the Ex-Im 2001 Financing Documents in respect of the Aircraft
with manufacturer's serial number 28829 or the Aircraft with manufacturer's
serial number 30567, as the case may be; 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
Capitalized terms used herein but not otherwise defined herein shall have
the meaning ascribed to such terms in the Sale and Purchase Agreement.
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 Seventh Supplemental Agreement.
2. AMENDMENTS
The Sale and Purchase Agreement is amended as follows:
2.1 The introductory clause of Clause 2.2 is hereby amended and restated to
read in its entirety as follows:
"Upon the terms and subject to the conditions set forth in this Agreement,
on the Closing Date (or, (i) with respect to any Material Contract related
to any Deferred Partnership Asset Owning Entity, the relevant Deferred Date
or (ii) with respect to any other Additional Assets, such other date as
Buyer and Seller may agree), Seller shall, or shall cause an Other Selling
Party to, sell, assign, convey, transfer and deliver to Buyer or, if so
requested by Buyer, to an Affiliate of Buyer reasonably acceptable to
Seller, and Buyer shall, or shall cause the relevant Affiliate of Buyer as
aforesaid to, purchase, acquire, accept and assume, all of the right, title
and interest of the applicable Selling Party in and to the following
(collectively, the "ADDITIONAL ASSETS"), as such Additional Assets exist on
the Closing Date (or the relevant Deferred Date or other date as Buyer or
Seller may agree, as the case may be):".
2.2 The introductory clause of Clause 2.5 is hereby amended and restated to
read in its entirety as follows:
"Upon the terms and subject to the conditions of this Agreement, Buyer
agrees that it shall, or it shall cause its Affiliate to whom any
Additional Assets related to any of the Liabilities described below are
transferred pursuant to Clause 2.2 of this Agreement to, effective at the
Closing (or such other dated as Buyer and Seller may agree) to assume from
the Selling Parties and to satisfy and discharge when due the following
specific Liabilities, other than the Retained Liabilities (the "ASSUMED
LIABILITIES"):"
2.3 The following provision is hereby inserted as Clause 2.11:
"2.11 Transfers to Affiliates
Notwithstanding anything to the contrary contained in this Agreement, it is
understood and agreed that if and to the extent any Additional Assets are
transferred to an Affiliate of Buyer (rather than to Buyer itself) pursuant
to the terms of Clause 2.2 and/or an
-2-
Affiliate of Buyer (rather than Buyer itself) assumes any Assumed
Liabilities pursuant to the terms of Clause 2.5, Buyer shall nonetheless
remain directly obligated for all of its obligations hereunder, including
with respect to such Additional Assets.".
2.4 Clause 6.5.1 is hereby amended as follows:
Subject to Seller's receipt of the payment contemplated by the following
sentence, Buyer and Seller agree that, in respect of that certain Focused
Air Aircraft Airbus A320-200 aircraft bearing manufacturer's serial number
331 (the "Affected Aircraft"), the provisions of Clause 6.5.1 of the Sale
and Purchase Agreement related to proceeds from the sale of the Affected
Aircraft are no longer effective and Seller shall have no right to a
payment in respect of the sale of the Affected Aircraft under said Clause
6.5.1. As consideration for Seller waiving its right to any such payment,
Buyer agrees that, concurrently with its purchase of the third-party
interests in GATX/CL Air (the "Third-Party Interests"), Buyer shall pay
Seller, by wire transfer of immediately available funds, an amount equal to
(a) $2,828,228.40 minus (b) the aggregate amount of all rental proceeds
paid by Buyer to Seller pursuant to Clause 6.5.1 of the Sale and Purchase
Agreement in respect of the Affected Aircraft between (and including) March
26, 2007 through (and including) the May 29, 2007) plus (c) the aggregate
amount of all maintenance reserves and other payments made by Seller in
respect of the Affected Aircraft between (and including) March 26, 2007
through (and including) the May 29, 2007) plus (d) interest accrued at 7%
per annum from time to time on the amount equal to (a) minus (b) plus (c)
from March 26, 2007 until the date Buyer pays such amount. Although Buyer
is purchasing the Third-Party Interests on an aggregate basis and,
therefore, the Affected Aircraft has not been individually valued in
connection therewith, Buyer hereby represents and warrants to Seller that
the amount that Seller is receiving for its share of the Affected Aircraft
is, in Buyer's reasonable opinion, reasonably equivalent to the amount that
the other partners of GATX / CL Air could reasonably be expected to
allocate to the Affected Aircraft in connection with their sale of the
Third-Party Interests to Buyer. For the avoidance of doubt, it is
understood and agreed that, notwithstanding the foregoing, Buyer shall
continue to be obligated to pay Seller its portion of any incentive fees
received by GATX/CL Air pursuant to the terms of Clause 6.5 of the Sale and
Purchase Agreement.
2.5 The following provision is hereby added at the end of Clause 7.11:
"It is the intention of Buyer and Seller that Seller's remarketing
obligations under the A321 GTL Documents (the "Remarketing Obligations") be
transferred to, and assumed by, Buyer. If a direct transfer of the
Remarketing Obligations is not possible, then Buyer and Seller will in good
faith determine an alternative structure (such as a subcontracting or
similar arrangement) whereby Buyer performs the Remarketing Obligations on
Seller's behalf. Regardless of the structure that is used, it is the
intention of the parties that any benefits and liabilities associated with
the Remarketing Obligations (including any payments received by Seller in
connection with the Remarketing Obligations) be for the account of Buyer."
-3-
3. ADDITIONAL DESIGNATED CONTRACTS
3.1 Each of Buyer and Seller agree that (i) the "Assigned Agreements" as
defined in that certain Assignment and Assumption Agreement being entered into
by Buyer and Seller on the date hereof and (ii) the following agreements (the
agreements referred to in the foregoing clauses (i) and (ii) being the
"Additional Designated Contracts") shall each be a "Designated Contract" for
purposes of the Agreement:
- Aircraft Maintenance and Modification Services Agreement dated
January 26, 2006 between Seller and Southern California Aviation,
LLC.
- Licence entered into in September 17, 2003 between AMT-SYBEX
(Software) Limited, as Licensor, and Seller, as Licensee.
- Commercial SFE/BFE Proposal, dated May 24, 2006, between Seller
and Honeywell International Inc.
- Customer Services General Terms Agreement related to Boeing
Aircraft dated 23 December 2002 between The Boeing Company and
Seller (and related agreements)
Each of Buyer and Seller agree that the amount owing by Seller to Buyer in
connection with the working capital adjustment contemplated by Clause 6.1 hereof
shall be reduced by $5,000 in order to reimburse Seller for certain
out-of-pocket costs and expenses (including, without limitation, fees of outside
counsel) incurred by Seller in connection with the transfer of the Additional
Designated Contracts.
4. CLAIMS AGAINST VARIG
4.1 Each of Buyer and Seller acknowledge and agree that upon the execution
of this Sixth Supplemental Agreement and without any further action on the part
of any party, any claims in bankruptcy that Seller or any of its Affiliates
(including G3AC) have against Viacao Aerea Rio Grandense, S.A. (VARIG) with
respect to an unpaid loan (balance $735,687), unpaid reserves (balance
$966,327.69), return condition claims ($7,800,000) and/or unpaid rent (balance
$810,000) (collectively, "Varig Claims") shall transfer to Buyer. Buyer shall
promptly disburse to Seller 50% of any amounts (a) recovered by Buyer with
respect to any Varig Claims or (b) received by Buyer from any sale of any Varig
Claims, in each case net of expenses incurred by Buyer in connection with
obtaining such recoveries or making such sales. Notwithstanding the foregoing,
it is understood and agreed that Buyer shall have no obligation to take any
actions with respect to or otherwise pursue any Varig Claims. If Buyer does
pursue any Varig Claims, Seller shall provide Buyer with access to any documents
in Seller's possession that Buyer may reasonably request in connection
therewith.
5. TAX LEASES
For the avoidance of doubt and without limiting the provisions of Clauses
7.11 and 7.12, Buyer shall continue to use its reasonable best efforts to obtain
the release of Seller from the guarantees referenced in Clauses 7.11 and 7.12.
6. WORKING CAPITAL ADJUSTMENT
6.1 Buyer and Seller hereby agree that attached as Exhibit A to this
Seventh Supplement Agreement is a document setting forth the Closing Working
Capital as agreed upon
-4-
by Buyer and Seller (the "Final Closing Working Capital"). Notwithstanding the
previous sentence, each of Buyer and Seller acknowledge and agree that they have
not yet reached agreement on the treatment of the following two items for
purposes of the calculation of the Final Closing Working Capital: (x) a payment
in the amount of $343,535.67 received by Seller on November 28, 2006 and (y) a
transposition error in the amount of $4,000 on a Vueling Payment (collectively,
the "Disputed Items"). Each of Buyer and Seller acknowledge and agree that they
shall work in good faith to reach agreement with respect to the Disputed Items
as soon as reasonably practicable after the date hereof. In accordance with the
terms the Sale and Purchase Agreement and based on the calculation of the Final
Closing Working Capital (as modified by the resolution of the Disputed Items if
applicable), Buyer and Seller further hereby agree that Seller shall, promptly
after the resolution of the Disputed Items, pay to Buyer an amount ranging from
$1,169,416.82 or $881,821.15 (depending on the resolution of the Disputed Items)
plus interest thereon as determined in accordance with Clause 2.8 of the Sale
and Purchase Agreement (the "Working Capital Settlement Amount"). Each of Buyer
and Seller hereby acknowledge and agree that the payment of the Working Capital
Settlement Amount by Seller to Buyer represents the final settlement of any
claims among the parties with respect to the Working Capital of the Business
(whether pursuant to the Sale and Purchase Agreement or otherwise) and,
effective upon payment by Seller to Buyer of the agreed Working Capital
Settlement Amount, each of Buyer and Seller (on behalf of themselves and their
respective Affiliates) hereby fully and unconditionally releases the other party
(and such other party's respective Affiliates) from any such claims.
7. SUPPLEMENTAL AGREEMENTS
7.1 In the event of any inconsistency between the terms of either of the
Omnibus Agreements or any of the Assignment and Assumption Agreements or other
conveyance documents delivered at the Closing, the Deferred Closing or at any
other time in connection with the Sale and Purchase Agreement, on the one hand,
and the Sale and Purchase Agreement, on the other hand, with respect to the
respective rights and obligations of Seller and Buyer as against the other, the
terms of the Sale and Purchase Agreement shall prevail.
8. MISCELLANEOUS
8.1 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 Seventh Supplemental Agreement.
8.2 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
Seventh Supplemental Agreement.
-5-
IN WITNESS WHEREOF, the parties to this Seventh Supplemental Agreement have
caused this Seventh 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:
---------------------------------
Name: Robert C. Lyons
Title: Vice President and Chief Financial Officer
Buyer
MACQUARIE AIRCRAFT LEASING LIMITED
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
-6-