exv10w4






Exhibit 10.4




AMENDMENT TO CREDIT AGREEMENTS AND FIRST LIEN GUARANTEE AGREEMENT




     THIS AMENDMENT TO CREDIT AGREEMENTS AND FIRST LIEN GUARANTEE AGREEMENT (this
“Amendment”) is made and entered into as of December 4, 2009, by and among INTERNATIONAL
LEASE FINANCE CORPORATION, a California corporation (the “Parent Borrower”), STATES
AIRCRAFT, INC., a California corporation (the “U.S. Subsidiary Borrower”), SHREWSBURY
AIRCRAFT LEASING LIMITED, a private limited liability company incorporated under the laws of
Ireland with registration number 475896 (the “Irish Subsidiary Borrower” and together with
the Parent Borrower and the U.S. Subsidiary Borrower, the “Borrowers”), TOP AIRCRAFT, INC.,
a California corporation (“Holdings”), ILFC IRELAND LIMITED, a private limited liability
company incorporated under the laws of Ireland with registration number 20936 (“ILFC
Ireland”), ILFC FRANCE S.A.R.L, a société à responsabilité limitée incorporated under the laws
of France (“ILFC France”), ILFC LABUAN LTD., a Labuan private limited liability company
incorporated under the Offshore Companies Act 1990 of Malaysia (“ILFC Labuan”, and together
with the Borrowers, Holdings, ILFC Ireland and ILFC France, the “Borrower Parties”), AIG
FUNDING, INC., a Delaware corporation (the “Lender”), and the FEDERAL RESERVE BANK OF NEW
YORK (the “FRBNY” and, together with the Lender, the “Required Persons”).



W I T N E S S E T H:




     WHEREAS, certain of the parties hereto are parties to (i) that certain Credit Agreement dated
as of October 13, 2009 (as amended by (A) that certain Post-Closing Letter Agreement dated as of
October 15, 2009 (the “Post-Closing Letter”), (B) that certain Temporary Waiver and
Amendment (the “Temporary Waiver No. 1”) dated as of December 1, 2009 and (C) that certain
Temporary Waiver and Amendment No. 2 dated as of December 4, 2009 (the “Temporary Waiver No.
2”, together with the Post-Closing Letter, the Temporary Waiver No. 1 and certain other waivers
provided prior to the date hereof, the “Waivers”), the “Credit Agreement”); (ii)
that certain Amended and Restated Credit Agreement dated as of October 13, 2009 (as amended by the
Post-Closing Letter and the Waivers, the “Amended and Restated Credit Agreement” and,
together with the Credit Agreement, the “Credit Agreements”; capitalized terms used herein
but not otherwise defined herein shall have the meanings assigned to such terms in the Credit
Agreements); and (iii) that certain First Lien Borrower Party Guarantee Agreement dated as of
October 13, 2009 by the Borrower Parties in favor of the FRBNY (the “First Lien Guarantee
Agreement”);



     WHEREAS, the Borrowers desire to borrow an additional $200,000,000 and the Lender is willing
to lend such amount to the Borrowers on the terms and conditions set forth herein and in the Credit
Agreement;



     WHEREAS, the Credit Agreement currently only contemplates a Commitment and a Loan of
$2,000,000,000, all of which has been advanced;



     WHEREAS, the parties have agreed that the $200,000,000 will be advanced by the Lender under
the Credit Agreement as the “Additional Loan” and that the terms thereof will be amended
in the manner set forth herein;



     WHEREAS, the Lender’s advance of the Additional Loan to the Borrowers is not currently
permitted by the Parent Facility;



 









 





     WHEREAS, the FRBNY is willing to permit the Lender’s advance of the Additional Loan by
granting certain waivers under the Parent Facility, but only if the First Lien Guarantee Agreement
is amended as provided herein;



     WHEREAS, the Required Persons, subject to the terms and conditions contained herein, have
agreed to such amendments to the Credit Agreements and the First Lien Guarantee Agreement, to be
effective as of the Amendment Effective Date (as defined below); and



     WHEREAS, the Borrower Parties and the Required Persons acknowledge that the terms of this
Amendment constitute an amendment and modification of, and not a novation of, the Credit Agreements
and the First Lien Guarantee Agreement.



     NOW, THEREFORE, in consideration of the mutual covenants and the fulfillment of the conditions
set forth herein, the parties hereby agree as follows:



     1. Definitions. From and after the Amendment Effective Date, the term “Credit
Agreement”, “Amended and Restated Credit Agreement” and “First Lien Guarantee Agreement”, as used
herein, in the Credit Agreement, in the Amended and Restated Credit Agreement, in the First Lien
Guarantee Agreement and in the other Loan Documents, shall mean the Credit Agreement, the Amended
and Restated Credit Agreement and the First Lien Guarantee Agreement as hereby amended and
modified, and as further amended, restated, modified, replaced or supplemented from time to time as
permitted thereby.



     2. Amendments to the Credit Agreement. (a) Section 1.01 of the Credit Agreement is
hereby amended as follows:




	 	(i)	 	The following definitions shall be added in the appropriate alphabetical order:
	 
	 	 	 	“Additional Loan” means the $200,000,000 loan advanced by the Lender to the
Borrowers on or after December 4, 2009, the conditions to which are set out in the
Amendment to Credit Agreements and First Lien Guarantee.
	 
	 	 	 	“Amendments to Credit Agreements and First Lien Guarantee” means the Amendment to
Credit Agreements and First Lien Guarantee Agreement dated as of December 4, 2009
among the Borrower Parties and the Required Persons.
	 
	 	 	 	“Original Loan” means the $2,000,000,000 loan advanced by the Lender on October 15,
2009.
	 
	 	(ii)	 	The following definitions shall be amended to read in full as follows:
	 
	 	 	 	“Loan” means the Original Loan and the Additional Loan.
	 
	 	 	 	(b) Sections 2.02 and 2.03 of the Credit Agreement shall be deemed to refer
only to the Original Loan. The terms for advance of the Additional Loan shall be as
set forth in this Agreement.




 









 











     3. Amendment to the Amended and Restated Credit Agreement. The following definition
in Section 1.01 of the Amended and Restated Credit Agreement shall be amended to read in full as
follows:




     “New Loan” means the “Loan” as defined in the New Loan Credit Agreement.



     4. Amendment to the First Lien Guarantee Agreement. The reference in Section 2 of the
First Lien Guarantee Agreement to “$2,000,000,000” is hereby amended to read “$2,200,000,000”.



     5. Representations and Warranties. The Borrower Parties hereby certify that:




     (a) prior to and after giving effect to this Amendment, and for the avoidance of doubt
after giving effect to the Waivers, the representations and warranties of the Borrower
Parties contained in Article 3 of the Credit Agreements, or which are contained in any other
Loan Document or other document furnished at any time under or in connection with the Credit
Agreements (i) that are qualified by materiality are true and correct on and as of the date
hereof and (ii) that are not qualified by materiality are true and correct in all material
respects on and as of the date hereof;




     (b) this Amendment has been duly authorized, executed and delivered by the Borrower
Parties and constitutes a legal, valid and binding obligation of such parties, except as may
be limited by general principles of equity, by concepts of reasonableness or by the effect
of any applicable bankruptcy, insolvency, reorganization, moratorium or similar law
affecting creditors’ rights generally; and




     (c) prior to and after giving effect to this Amendment, and for the avoidance of doubt
after giving effect to the Waivers, no Default or Event of Default exists under either of
the Credit Agreements.



     6. Conditions to Effectiveness. This Amendment shall be effective on the date (the
“Amendment Effective Date”) upon which the following conditions precedent have been satisfied:




     (a) the Required Persons shall have executed counterparts of this Amendment and shall
have received counterparts of this Amendment executed by each of the Borrower Parties;




     (b) the FRBNY shall have granted any waivers or consents necessary with respect to the
Parent Facility;




     (c) The Lender shall have received a certificate, dated the Amendment Effective Date,
signed by the President, a Vice President or a Financial Officer of the Parent Borrower
confirming that the representations and warranties of the Borrower Parties in Article 3 of
the Credit Agreement are true and correct as of the Amendment Effective Date;




     (d) The Lender shall have received an executed copy of a promissory note substantially
in the form attached hereto as Exhibit A with respect to the Additional Loan, duly
executed by each Borrower, which promissory note shall be designated as, and shall
constitute, a Loan Document for all purposes of the Credit Agreement and the other Loan
Documents; and



 









 






     (e) The Lender and the FRBNY shall have received a favorable written opinion (addressed
to each Lender Party and the FRBNY and dated the Amendment Effective Date) of each of
Clifford Chance US LLP with respect to New York law and in-house counsel to the Parent
Borrower with respect to California law and other matters, as to such matters as any Lender
Party or the FRBNY may request.



     7. Funding of Additional Loan. (a) The Parent Borrower shall request that the Lender
make the Additional Loan by delivering to the Required Persons a Borrowing Request no later than
12:00 noon, New York City time, at least one (1) Business Day before the Amendment Effective Date.
Such Borrowing Request shall be irrevocable and shall specify the aggregate amount of the
Additional Loan to be made on the Amendment Effective Date (which aggregate amount shall not exceed
$200,000,000).



     (b) The Lender shall wire the principal amount of the Additional Loan in immediately available
funds, by 12:00 noon, New York City time, on the Amendment Effective Date, to an account designated
by the Parent Borrower.



     8. No Novation. This Amendment is given as an amendment and modification of, and not
as a payment of, the Obligations or the Guaranteed Obligations (as defined in the First Lien
Guarantee Agreement) of the Borrowers and the other Borrower Parties and is not intended to
constitute a novation of the Credit Agreements, the First Lien Guarantee Agreement or any of the
other Loan Documents. All of the indebtedness, liabilities and obligations owing by the Parent
Borrower and each other Borrower Party under the Credit Agreements, the First Lien Guarantee
Agreement and the other Loan Documents shall continue.



     9. Binding on Successors and Assigns. This Amendment shall be binding upon and inure
to the benefit of all of the parties hereto and their respective successors and assigns.



     10. No Course of Dealing. The Required Persons are not obligated to grant any other
consent, amendment or waiver of any kind under the Loan Documents, and this Amendment does not
constitute a course of dealing as between the Required Persons and the Borrower Parties.



     11. Conflict. In the event of any conflict between the provisions of this Amendment
and the Credit Agreements or any other Loan Document, the provisions of this Amendment will prevail
to the extent of such inconsistency.



     12. Applicable Law. THIS AMENDMENT AND THE OTHER LOAN DOCUMENTS SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.



     13. Counterparts. This Amendment may be executed in counterparts (and by both parties
hereto on different counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract. Delivery of an executed counterpart of a
signature page of this Amendment by facsimile transmission or by other electronic communication
(such as by e-mail in PDF) shall be effective as delivery of a manually signed counterpart of this
Amendment.



     14. Headings; Construction. The section headings in this Amendment are included for
convenience of reference only and shall not constitute a part of this Amendment for any other
purpose. The parties to this Amendment acknowledge that they were represented by competent counsel
in



 









 







connection with the negotiation, drafting and execution of this Amendment and that this
Amendment shall not be subject to the principle of construing its meaning against the party that
drafted it.



     15. Ratification; Amendment as a Loan Document. The Loan Documents as expressly
modified, supplemented or waived by this Amendment are each hereby ratified and confirmed and shall
continue in full force and effect. The parties to this Amendment expressly agree and acknowledge
that it shall be designated as, and shall constitute, a Loan Document for all purposes of the
Credit Agreements and the other Loan Documents. The Borrower Parties hereby confirm and agree that
all security interests now or hereafter held by the Security Trustees for the benefit of the
Secured Parties (as defined in the Mortgage) as security for payment of the Obligations, the
Guaranteed Obligations (as defined in the First Lien Guarantee Agreement) and the “Guaranteed
Obligations” (as defined in the Third Lien Borrower Party Guarantee Agreement dated as of October
13, 2009 among the Borrower Parties in favor of the FRBNY) are the legal, valid and binding
obligations of the Borrower Parties, remain in full force and effect, and are unimpaired by this
Amendment.



     16. Enforceability. Should any one or more of the provisions of this Amendment be
determined to be illegal or unenforceable as to one or more of the parties hereto, all other
provisions nevertheless shall remain effective and binding on the parties hereto.



[signature page(s) follow]




 









 









     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their
respective authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	INTERNATIONAL LEASE FINANCE CORPORATION

 	 
	 	By:  	/s/
Pamela S. Hendry


 	 
	 	 	Name:  	Pamela S. Hendry	 
	 	 	Title:  	Senior Vice President & Treasurer	 
	 


 









 








	 	 	 	 	 
	 	STATES AIRCRAFT, INC.

 	 
	 	By:  	/s/
Pamela S. Hendry 	 
	 	 	Name:  	Pamela S. Hendry	 
	 	 	Title:  	Director	 
	 



 









 





	 	 	 	 	 	 	 	 
	SIGNED SEALED AND DELIVERED by SHREWSBURY
AIRCRAFT LEASING LIMITED by its duly appointed
attorney in the presence of:	 	SHREWSBURY AIRCRAFT
LEASING LIMITED
	 

	 	 	 	By:	 	/s/ Niall C. Sommerville 
	 

	 	 	 	 	 	/s/
 
	By:

	 	/s/
Maeve O’ Reilly 	 	 	 	Name: Niall C. Sommerville
	 

	 	Name:
            Maeve
O’ Reilly
	 	 
	 	Title:   Director
	 	 	Address:
       30 North Wall Quay, Dublin 1	 	 	 	 
	 	 	Occupation:  Administrator	 	 	 	 






 








 





	 	 	 	 	 
	 	ILFC LABUAN LTD.

 	 
	 	By:  	/s/
Alan H. Lund 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 


 








 






	 	 	 	 	 
	 	ILFC IRELAND LIMITED

 	 
	 	By:  	/s/ Niall C. Sommerville 	 
	 	 	Name:  	Niall C. Sommerville 	 
	 	 	Title:  	Director 	 
	 




 












 






	 	 	 	 	 
	 	ILFC FRANCE S.A.R.L.

 	 
	 	By:  	/s/ Niall Sommerville 	 
	 	 	Name:  	Niall Sommerville 	 
	 	 	Title:  	Gérant 	 
	 



 








 






	 	 	 	 	 
	 	TOP AIRCRAFT, INC.

 	 
	 	By:  	/s/ Pamela S. Hendry 	 
	 	 	Name:  	Pamela S. Hendry 	 
	 	 	Title:  	Director 	 
	 



 









 






	 	 	 	 	 
	 	AIG FUNDING, INC.

 	 
	 	By:  	/s/ Robert A. Gender 	 
	 	 	Name:  	Robert A. Gender 	 
	 	 	Title:  	President 	 
	 



 








 






	 	 	 	 	 
	 	FEDERAL RESERVE BANK OF NEW YORK

 	 
	 	By:  	/s/ Steven Manzari 	 
	 	 	Name:  	Steven Manzari 	 
	 	 	Title:  	SVP