Exhibit 10.11
AMENDMENT NO. 3 TO LOAN AND
AIRCRAFT SECURITY AGREEMENT (S/N 3004)
THIS AMENDMENT NO, 3 TO LOAN AND
AIRCRAFT SECURITY AGREEMENT (S/N 3004) dated as of August 28 ,
2008 ( “Amendment”) is executed by and between
Banc of America Leasing & Capital, LLC, (as successor by
merger with Fleet Capital Corporation) as lender
(“Lender”), and Willis Lease Finance
Corporation, as customer
(“Customer”).
RECITALS
WHEREAS, Lender and Customer entered
into a certain Loan and Aircraft Security Agreement (S/N 3004)
dated as of October 29, 2004, which was recorded with the
Federal Aviation Administration (“FAA”) on
November 30, 2004, and assigned conveyance number M005128
(together with all exhibits annexes, riders and schedules, as
amended, including by the Amendments (as defined below), the
“Security Agreement”), regarding a certain Canadair
Ltd. Model CL-600 2412 (Challenger 601-1A) aircraft bearing U.S.
Registration Mark N45PH and manufacturer’s serial number 3004
(the “Airframe”), Two (2) General Electric
Model CF-34-3A aircraft engines bearing manufacturer’s serial
numbers 350110 and 350115, each of which engines has 550 or more
rated takeoff horsepower or the equivalent of such horsepower
(collectively, the “Engines”) and certain other
property secured by the Security Agreement, all as more
particularly described in the Security Agreement (collectively with
the Airframe and the Engines, the
“Aircraft”);
WHEREAS , Lender and Customer
amended the Security Agreement (“Amendment No. 1”)
on December 29, 2004, to obtain Lender’s consent for an
Aircraft Management and Charter Agreement between TWC Aviation and
Customer;
WHEREAS, Lender and Customer amended
the Security Agreement (“Amendment No. 2”) on
February 14, 2007 wherein Lender consented to a reduction in
the combined liability insurance for bodily injury and property
damage including passenger, premises, contractual and war risk and
allied perils coverage from $200,000,000.00 to $150,000,000.00 for
each occurrence. The Loan and Aircraft Security Agreement and
Amendments No. 1 and 2 are collectively referred to herein as
the Security Agreement;
WHEREAS, Customer has requested
Lender make an additional loan for upgrades to the
Aircraft;
WHEREAS, this Amendment will bring
the Security Agreement within the provisions of the Cape Town
Convention (as defined below); and
WHEREAS, the parties are entering
into this Amendment to (i) amend the Security Agreement for
the additional loan and the aircraft upgrades, (ii) make the
Security Agreement compliant with the Cape Town Convention, and
(iii) amend certain terms and conditions of the Security
Agreement, as and to the extent provided in this
Amendment.
NOW, THEREFORE, in consideration of
the premises and the mutual covenants herein contained, and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as
follows:
1.
Definitions. Capitalized terms used in this Amendment and
not otherwise defined herein are defined in the Security Agreement
(as amended by this Amendment).
2.
Amendments.
a.
The Security Agreement is amended by
renumbering Section 1.3 to 1.4.
b.
Section 1 of the Security
Agreement is amended by replacing Section 1.3
“Prepayment” and inserting in lieu thereof the
following:
“1.3 Tranche 3 Loan.
Subject to the terms and conditions of this Agreement, Lender
agrees to make a loan to Customer in the principal amount of
$1,031,436.00 set forth in Annex B hereto and designated as the
Tranche 3 Loan (the “Tranche 3 Loan”) on the Requested
Advance Date (the “Tranche 3 Closing Date”). The
Customer’s obligation to repay the Tranche 3 Loan shall be
evidenced by a promissory note in substantially the same form as
the Tranche 1 and 2 Notes, payable by Customer to the order of
Lender in the original principal amount of the Tranche 3 Loan (as
amended, modified, restated, extended and renewed from time to
time, the “Tranche 3 Note”). The Tranche 3 Loan shall
bear interest and be repaid by Customer at the times and in the
manner set forth in the Tranche 3 Note. Unless sooner terminated
pursuant to the provisions of this Agreement, the obligation of
Lender to make the Tranche 3 Loan hereunder shall automatically
terminate on September 1, 2008 without further action by, or
notice of any kind from Lender. The Tranche 1 Note, Tranche 2 Note
and Tranche 3 Note are collectively referred to as the
“Note” or “Notes”.”
c. The Security Agreement is amended
by changing Section 1.4 to read Section 1.5 and adding
the following at the end of the provision, “and the proceeds
of the Tranche 3 Loan to pay for Lender approved refurbishment and
upgrades to the Aircraft”.
d. The Security Agreement is amended
by adding the Cape Town Rider attached hereto and made a part
hereof,
e.
The following definitions are added to Annex A to the Security
Agreement:
“Tranche 3 Note” shall
mean that certain Promissory Note dated the date of this Amendment,
having a term which shall be coterminous with the then remaining
term of the Tranche 1 and Tranche 2 Notes, and in the amount set
forth in Revised Annex B to this Amendment.
f. The following definitions in
Annex A to the Security Agreement are amended:
i.
The definition of “Applicable Law” is amended by
adding, after the word “Aircraft”, the words “the
Cape Town Convention,”
ii.
The definition of “Liens” is amended by adding, after
the word “leaseholds” the words, “ any
International Interests”.
iii.
The definition of “Loan Documents” is amended by
adding, after the words “Tranche 2 Note”,
“Tranche 3 Note”.
iv.
The definition of “Loans” Is amended by adding to the
end of the sentence, “and the Tranche 3
Loan”.
g. Annex B of the Security Agreement
is amended by replacing it in its entirety with the Revised Annex B
attached hereto and made a part hereof.
3.
Conditions Precedent to the Tranche 3 Loan: On or prior to
the Tranche 3 Closing Date and at least one full business Day prior
to such date, Lender shall have received all of the following, in
form and substance satisfactory to Lender: (a) all of the
Conditions Precedent set forth in Section 8 of the Cape Town
Rider, (b) a Pay Proceeds Letter, the Tranche 3 Note and the
Certificate of Acceptance for the refurbishments and upgrades to
the Aircraft all duly executed by Customer, and (c) copies of
all vendor work orders and invoices for the refurbishment and
upgrades and, if customer has previously paid such invoices,
evidence of such payment,
4.
Affirmation. Customer hereby (a) affirms and ratifies
its obligations under the Security Agreement and the other Loan
Documents, and (b) agrees that the Security Agreement and the
other Loan Documents are in full force and effect, except as
otherwise amended hereby.
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5.
Representations. Customer hereby (a) restates all of
its representations, warranties and agreements set forth in
Section 3 of the Security Agreement, (b) confirms that
after giving effect to the transactions contemplated herein and the
amendments made hereby, the representations and warranties, taking
into account such transactions and amendments, are accurate for all
purposes as of the date hereof, and without limiting the foregoing,
and (c) represents, warrants and covenants to Lender that
(i) this Amendment is enforceable against Customer in
accordance with its terms; (ii) Customer’s execution and
delivery of this Amendment and any other documents, agreements and
instruments executed or delivered in connection herewith have been,
or will be, duly authorized on its part; and (iii) that no
Default or Event of Default presently exists.
6.
Miscellaneous.
(a)
This Amendment, together with the Security Agreement and the other
Loan Documents, constitute the entire agreement between the parties
hereto, and supersede all prior or contemporaneous agreements,
communications and understandings, both written or oral with
respect to the subject matter of this Amendment. This Amendment may
be executed in any number of counterparts and by the parties hereto
in separate counterparts.
(b)
No modification of any of the provisions of this Amendment shall be
effective until and unless it is in writing and signed by the
parties.
(c)
All of the terms and conditions of this Amendment shall survive the
execution and delivery of this Amendment. This Amendment may be
executed in any number of counterparts, all of which when taken
together shall constitute but a single instrument. The headings in
this Amendment are for convenience only and shall not limit or
otherwise affect any of the terms hereof.
(d)
In the event that any provision of this Amendment is for any reason
held to be invalid, illegal or unenforceable, in whole or in part
or in any respect, then such provision only shall be deemed null
and void and shall not affect any other provision hereof, and the
remaining provisions shall remain operative and in full force and
effect.
(e)
This Amendment shall in all respects be governed by, and construed
in accordance with, the laws of the State of New York, without
giving effect to its principles of conflicts of law or choice of
law (except Title 14, Section 5-1401 of the New York General
Obligations Law) and shall be binding upon and inure to the benefit
of Lender and Customer and their respective successors and
assigns.
(f)
Customer shall pay all actual and reasonable fees, costs and
expenses incurred by Lender in connection with this Amendment,
whether or not the transactions contemplated hereby are
consummated, including, without limitation, FAA and International
Registry title and lien searches, reports, filing and recording
fees. Customer also agrees to pay all fees and expenses of
Lender’s counsel, FAA Counsel and all other third parties who
are engaged by Lender to enforce Lender’s rights and/or
remedies hereunder, to update any FAA, International Registry or
UCC title and/or lien reports and/or to review, file and record any
and all documents and instruments as required by Lender, the FAA or
the International Registry during and after the Term of the
Security Agreement.
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IN WITNESS WHEREOF, the parties have
executed this Amendment by their respective duly authorized
representatives as of the date and year first above
written.
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BANC OF AMERICA LEASING &
CAPITAL,
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WILLIS LEASE FINANCE
CORPORATION:
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LLC (as successor by merger with
Fleet
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Capital Corporation)
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By:
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/s/ Rhonda Maggiacomo
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By:
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/s/ Bradley S. Forsyth
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Name:
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Rhonda Maggiacomo
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Name:
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Bradley S. Forsyth
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Title:
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Sr Vice President
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Title:
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Senior Vice President,
Chief
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Financial Officer
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