Exhibit 10.31
Execution Copy
FIRST AMENDMENT TO SECOND
AMENDED AND RESTATED CREDIT AGREEMENT AND JOINDER
AGREEMENT
This FIRST AMENDMENT TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT and JOINDER
AGREEMENT (this “ Amendment ”), is entered
into as of December 13, 2006 and amends in certain respects
that certain that Second Amended and Restated Credit Agreement,
dated as of June 29, 2006, by and among WILLIS LEASE
FINANCE CORPORATION , a Delaware corporation (the “
Borrower ”), each of the financial institutions that
is, or pursuant to the terms thereof may become, a party as a Bank
thereto (individually, a “ Bank ”, and
collectively, the “ Banks ”), NATIONAL CITY
BANK (“ NatCity ”), in its capacity as
Administrative Agent for the Banks (the “ Administrative
Agent ”), FORTIS BANK (NEDERLAND) N.V. (“
Fortis ”), in its capacity as Structuring Agent and
Security Agent for the Banks (the “ Security Agent
”), and CALYON NEW YORK BRANCH (the “
Additional Bank ”) (as the same may from time to time
be amended, supplemented or otherwise modified, the “
Credit Agreement ”).
W
I T N
E S S E T H
:
WHEREAS , the Borrower desires to prepay Fortis in full,
and Fortis is willing to withdraw as a Bank in connection with such
prepayment and desires to resign as Security Agent under the Credit
Agreement;
WHEREAS , pursuant to Section 9.11 of the Credit
Agreement, the Banks desire to appoint NatCity as successor
Security Agent, and the Borrower is willing to consent to such
appointment;
WHEREAS , the Additional Bank desires to join the Credit
Agreement as an Additional Bank pursuant to Section 10.01 of
the Credit Agreement, and the execution and delivery of this
Amendment is a condition precedent to the Additional Bank becoming
a party to, and a Bank under, the Credit Agreement; and
WHEREAS , in connection with the foregoing transactions,
the Borrower, the Agents and the Banks desire to amend the Credit
Agreement in certain respects, as hereinafter provided;
NOW, THEREFORE
, for good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
Section 1.
Defined Terms . Capitalized terms used and not otherwise defined
herein shall have the respective meanings ascribed to them in the
Credit Agreement.
Section 2.
Appointment and Consent .
Section 2.1.
Appointment of Security Agent . The Banks hereby jointly
appoint NatCity as successor Security Agent to Fortis pursuant to
Section 9.11 of the Credit Agreement, such appointment to
become effective as provided in Section 5 of this Amendment;
the Borrower hereby consents to such appointment and NatCity hereby
accepts such appointment. Pursuant to such appointment, NatCity
shall succeed to and shall become vested with the duties, rights,
powers and privileges of Fortis, as Security Agent, and, subject to
the last sentence of this Section 2(a), Fortis shall be
discharged from all duties and liabilities as Security Agent, in
each case under the Credit Agreement and the other Loan Documents.
Concurrently with such discharge, Fortis hereby assigns to NatCity,
as successor Security Agent under the Loan Documents (the “
Successor Agent ”), all of its rights, powers,
entitlements, benefits and privileges as Security Agent and
beneficiary under the Security Documents, including without
limitation all Liens held by it as Security Agent. Fortis agrees to
execute and deliver to the Successor Agent from time to time, at
the request of the Borrower or the Successor Agent, and at the sole
expense of the Borrower, such documents, confirmations and
instruments as shall be required or reasonably requested in order
to effectuate the intent and purposes of this Amendment, including,
without limitation, all assignments of Liens in favor of the
Successor Agent.
Section 2.2.
Waiver . The Borrower and the
Banks hereby waive the requirement for 30 days’ prior written
notice of resignation from the Security Agent pursuant to
Section 9.11 of the Credit Agreement.
Section 3.
Joinder of Additional Bank . The Borrower and the Agents (including the
Successor Agent) hereby agree as follows:
Section 3.1.
Joinder in the Credit Agreement .
The Additional Bank hereby joins the Credit Agreement and accepts
and agrees to be bound by all of the terms and conditions thereof,
and the Borrower, the Administrative Agent and the Security Agent
(including the Successor Agent) hereby consent to such joinder in
the Credit Agreement by the Additional Bank. The Additional Bank
confirms the appointment and authorization of the Administrative
Agent and the Security Agent (including the Successor Agent)
pursuant to Section 9.01 of the Credit Agreement and expressly
acknowledges to the Agents (including the Successor Agent) the
matters referred to in Section 9.03 of the Credit
Agreement.
Section 3.2.
“Bank” under the Loan
Documents . The Additional Bank shall henceforth be deemed a
“Bank” for all purposes of the Credit Agreement, the
Security Agreement and the other Loan Documents.
Section 3.3.
Obligations of the Borrower . The
Obligations of the Borrower to the Additional Bank shall be secured
by the Collateral pursuant to the Security Agreement and the other
Loan Documents with all other Obligations of the Borrower to all
other Banks and the Agents in accordance with the Credit Agreement,
the Security Agreement and the other Loan Documents.
Section 3.4.
Commitment . The amount of the
Additional Bank’s Commitment is TWENTY MILLION Dollars
($20,000,000) and its Commitment Percentage is 9.22%.
2
Section 3.5.
Notices . The address of the
Additional Bank for purposes of Section 11.09 of the Credit
Agreement is 1301 Avenue of the Americas, New York, New York
10019-6022, Attention: Charles Moran, unless changed in accordance
with the terms thereof.
Section 3.6.
Separate Joinder Agreement Not
Required . This Section 3 shall be in lieu of a separate
Joinder Agreement required by Section 10.01 of the Credit
Agreement.
Section 4.
Amendments to Credit Agreement .
Section 4.1.
Amendment to Certain Defined Terms
. Clause “(i)” of the definition of “Asset
Base” in Section 1.01 of the Credit Agreement is hereby
amended and restated in its entirety to read as follows:
“(i)
the aggregate
amount includible in the Asset Base of Net Book Value of Eligible
Engines and Eligible Equipment (other than Eligible Parts)
manufactured by the same Acceptable Manufacturer and of the makes
and models set forth on Schedule 1.01(d) shall not
exceed 25% of the Asset Base; provided , however ,
that the aggregate amount includible in the Asset Base of Net Book
Value of CFM56-7 series Engines may constitute up to 45% of the
Asset Base;”
Section 4.2.
Amendment relating to
Section 9.03 . Section 9.03(a) is hereby amended
by deleting the word “not” from where it appears
therein.
Section 4.3.
Amendment relating to
Section 9.11 . Section 9.11 of the Credit Agreement
is hereby amended by substituting the reference “Majority
Banks” for the reference in the second sentence thereof to
“Banks”.
Section 4.4.
Amendment relating to Aggregate
Revolving Loan Commitment . In accordance with
Section 2.01(a) of the Credit Agreement, the Borrower
hereby elects, and the Agents (including the Successor Agent)
hereby consent, to increase the Aggregate Revolving Loan Commitment
to $217,000,000. Accordingly, Schedule 1.01(a) to the Credit
Agreement is hereby amended and restated in its entirety to read as
set forth in Schedule 1.01(a) annexed hereto.
Section 5.
Withdrawal of Fortis as a Bank . Fortis agrees that, upon receipt of payment in
full of all amounts owed to it under the Credit Agreement and the
other Loan Documents, its Commitment will be automatically
terminated and it will no longer be a “Bank” or
“Structuring Agent” under the Credit Agreement and any
other Loan Document. Each of the Banks hereby acknowledges and
agrees to the prepayment of all amounts owed to Fortis and to
Fortis’s withdrawal as a Bank and as Structuring Agent under
the Credit Agreement and the other Loan Documents.
Section 6.
Effectiveness . The effectiveness of this Amendment shall be
conditioned upon the fulfillment to the satisfaction of the
Administrative Agent of each of the following conditions by no
later than December 31, 2006:
3
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(i)
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The Administrative Agent shall have received
counterparts of this Amendment executed by each of the
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