1
EXHIBIT 4.4
AMENDED AND RESTATED
GUARANTY AGREEMENT
THIS AMENDED AND RESTATED GUARANTY AGREEMENT ("Guaranty"),
dated as of the 4th day of November, 1996, is made by International Aircraft
Investors, a California corporation ("Guarantor"), in favor of Xxxxx Fargo
Bank, N.A. ("Bank") successor by merger to First Interstate Bank of California
("FICAL").
A. SWA I corporation, a Nevada corporation ("Debtor")
and FICAL have previously made and entered that certain Aircraft Loan Agreement
dated as of December 22, 1995 (the "Original Agreement"), pursuant to which
FICAL made a loan to Debtor in the original principal amount of $14,500,000.
Debtor's obligations under the Original Agreement were guarantied by Guarantor
pursuant to a Guaranty Agreement dated as of December 22, 1995 (the "Original
Guaranty").
B. Pursuant to an Amended and Restated Aircraft Loan
Agreement dated as of even date herewith (herein, as the same may from time to
time be amended, modified or supplemented, called the "Agreement") between
Debtor and Bank, Debtor and Bank have amended and restated the Original
Agreement, Bank has agreed to continue to provide a loan to Debtor in an
aggregate principal amount not to exceed $13,700,000, such loan to be evidenced
by a promissory note of Debtor (the "Note");
C. Debtor and Guarantor will derive substantial economic
benefit from the extensions of credit to Debtor for which the Agreement
provides; and
D. Bank is willing to make the loan for which the
Agreement provides upon the condition, among other things, that Guarantor
execute and deliver to Bank this Guaranty. It is the intention of Guarantor to
effect certain amendments to the Original Guaranty, as expressly reflected
herein. The Original Guaranty otherwise continues in full force and effect
from the date thereof to the Closing Date, and at all times after the Closing
Date as restated hereby. As of the Closing Date, any reference to the Original
Guaranty in any document executed in connection with the Original Agreement is
hereby deemed to be a reference to this Guaranty.
In consideration of the foregoing facts and in order to induce
Bank to enter into the Agreement and to make the loans contemplated thereunder,
Guarantor hereby agrees as follows:
1. Definitions. For all purposes of this Guaranty,
unless otherwise defined herein or unless the context otherwise requires, all
terms used herein which are defined in the Agreement or the Note shall have the
respective meanings given them in the Agreement or the Note, as the case may
be.
2
2. Guaranty.
2.1 Guarantor hereby unconditionally and
irrevocably guarantees to Bank and its successors, indorsees, transferees and
assigns, (a) the prompt and complete payment when due (whether at the stated
maturity, by acceleration or otherwise) of the aggregate unpaid principal
amount of, and accrued interest on, the Note and all other obligations and
liabilities of Debtor to Bank now existing or hereafter incurred arising out of
or in connection with the Agreement or the Note (all such indebtedness,
obligations and liabilities being hereinafter called the "Obligations"), and
(b) the due and punctual performance and observance, strictly in accordance
with the terms of the Agreement, of each of the terms, conditions, covenants,
agreements and indemnities of Debtor under the Agreement and any related loan
documents, and if for any reason whatsoever Debtor shall fail to do so,
Guarantor shall promptly perform and observe the same. Guarantor further
agrees to pay any and all expenses, including reasonable attorneys' fees, which
may be paid or incurred by Bank in collecting from Guarantor any or all of the
Obligations and/or in enforcing any rights hereunder.
2.2 The obligations of Guarantor under this Guaranty
shall be continuing, absolute and unconditional under any and all circumstances
and shall be paid by Guarantor regardless of (a) the validity, regularity,
legality or enforceability of the Agreement, the Note, any of the Obligations
or any collateral security or other guaranty therefor at any time or from time
to time held by Bank; (b) any defense, offset or counterclaim which may at any
time be available to or be asserted by Debtor or Guarantor against Bank; or (c)
any other event or circumstance whatsoever which may constitute, or might be
construed to constitute, an equitable or legal discharge of a surety or a
guarantor, it being the purpose and intent of the Guarantor that this Guaranty
and the Guarantor's obligations hereunder shall remain in full force and effect
and be binding upon Guarantor and its successors until the Obligations and the
obligations of Guarantor under this Guaranty shall have been satisfied by
payment in full.
2.3 Guarantor hereby consents that, without the necessity
of any reservation of rights against Guarantor and without notice to or assent
by Guarantor, any demand for payment of any of the Obligations made by Bank may
be rescinded by Bank and any of the Obligations continued, and/or the
Obligations, or the liability of any party upon or for any part thereof, or any
collateral security or guaranty therefor, may, from time to time, in whole or
in part, be renewed, extended, amended, modified, accelerated, settled,
compromised, subordinated, waived, surrendered or released by Bank, and/or the
Agreement, the Note, any collateral security documents or other guaranties or
documents in connection therewith may be amended, modified, supplemented or
terminated, in whole or in part, as Bank may deem advisable from time to time,
and/or any collateral security at any time securing the payment of the
Obligations may be sold, exchanged, waived, surrendered or released, Guarantor
remaining bound hereunder notwithstanding the occurrence of any of the
foregoing. Bank shall not have any duty to protect, secure, perfect or insure
any collateral security at any time securing the payment of the Obligations.
This is a guaranty of performance and payment and not merely of
2
3
collection. Guarantor waives any requirement that Bank make any demand,
commence suit or exercise any other right or remedy under the Agreement prior
to enforcing its rights against Guarantor hereunder. Guarantor waives
diligence, presentment, protest, demand for payment and/or notice of default or
non-payment to or upon Debtor or Guarantor with respect to the Obligations.
Guarantor waives any right to require Bank to xxxxxxxx assets in favor of
Debtor, Guarantor or any other person or entity. When making any demand
hereunder against Guarantor, Bank may, but shall be under no obligation to make
a similar demand on any other guarantor, and any failure by Bank to make any
such demand or to collect any payments from any such other guarantor or any
release of such other guarantor shall not relieve Guarantor of its obligations
and liabilities hereunder, and shall not impair or affect the rights and
remedies, express or implied, or as a matter of law, of Bank against Guarantor.
For the purposes hereof "demand" shall include the commencement and continuance
of any legal or arbitration proceedings.
2.4 Guarantor waives any and all notice of the creation,
renewal, extension or accrual of any of the Obligations and notice of or proof
of reliance by Bank upon this Guaranty or acceptance of this Guaranty. The
Obligations, and any of them, shall conclusively be deemed to have been
created, contracted or incurred in reliance upon this Guaranty, and all
dealings between Debtor or Guarantor and Bank shall likewise be conclusively
presumed to have been had or consummated in reliance upon this Guaranty.
Guarantor acknowledges receipt of a copy of the Agreement and the form of the
Note.
2.5 Guarantor hereby waives any duty on the part of Bank
(should any such duty exist) to disclose to Guarantor any matter, fact or thing
related to the business, operations or condition (financial or otherwise) of
Debtor or its affiliates or properties, whether now known or hereafter known by
Bank.
2.6 This Guaranty shall continue to be effective, or be
reinstated, as the case may be, if at any time, payment, or any part thereof,
of any of the Obligations is rescinded or must otherwise be restored or
returned by Bank upon the insolvency, bankruptcy or reorganization of Debtor,
or otherwise, all as though such payment had not been made.
3. No Subrogation. Guarantor expressly waives any and
all rights of subrogation, reimbursement, indemnity, exoneration, contribution
and any other claim which it may now or hereafter have against Debtor or any
other person directly or contingently liable for the Obligations guarantied
hereunder, or against or with respect to Debtor's property (including, without
limitation, property collateralizing its Obligations to Bank), arising from the
existence or performance of this Guaranty.
4. Representations and Warranties. Guarantor hereby
represents and warrants that (a) Guarantor is a corporation duly organized,
validly existing and in good standing under the laws of the State of California
(b) Guarantor has full power, authority
3
4
and legal right to execute, deliver and perform this Guaranty and the Guarantor
has taken all necessary corporate action to authorize such execution, delivery
and performance; (c) this Guaranty has been duly authorized, executed and
delivered by Guarantor and constitutes a legal, valid and binding obligation of
Guarantor enforceable in accordance with its terms; (d) no consent of any
person (including stockholders or any trustee or holder of any obligations of
Guarantor), and no consent, license, approval or authorization of, or
registration or filing with, any governmental authority, bureau or agency is
required in connection with the execution, delivery and performance of, and
payment under, this Guaranty; (e) the execution, delivery, performance and
payment of this Guaranty does not and will not contravene any applicable law,
regulation, order or decree, the certificate of incorporation or by-laws of
Guarantor or any provision of any indenture, mortgage, contract or other
agreement to which Guarantor, or any person controlled by, controlling, or
under common control with Guarantor, is a party or by which any of the same or
any of their respective assets may be bound; (f) there is no action, suit,
investigation or proceeding by or before any court, arbitrator, administrative
agency or other governmental authority pending or threatened against or
affecting Guarantor (A) which involves the transactions contemplated by this
Guaranty, or (B) which if adversely determined, could have a material adverse
effect on the financial condition, business or operations of Guarantor; (g) all
financial statements of Guarantor heretofore furnished Bank are complete and
correct and fairly present the financial condition of Guarantor and the results
of its operations for the respective periods covered thereby, and there are no
known contingent liabilities or liabilities for taxes of Guarantor which are
not reflected in said financial statements and since the date of the most
recent financial statements of Guarantor furnished to Bank, there has been no
material adverse change in the financial condition, business or operations of
Guarantor; and (h) Guarantor is not in default under any indenture, mortgage,
contract or other agreement to which it is a party or by which Guarantor or any
of its assets may be bound.
5. No Changes in Guarantor. Guarantor covenants and
agrees that from and after the date hereof and so long as any of the
Obligations remain outstanding, it will not (a) enter into any transaction of
merger or consolidation unless it is the surviving corporation and after giving
effect to such merger or consolidation its tangible net worth equals or exceeds
that which existed prior to such merger or consolidation; or (b) liquidate or
dissolve; or (c) sell or otherwise dispose of all or any substantial part of
its assets; or (d) without limiting the generality of clause (c), sell,
transfer or otherwise dispose of any stock of Debtor owned by it as of the date
hereof; or (e) without thirty (30) days prior written notice to Bank change its
name or chief place of business.
6. Additional Covenants of Guarantor. Guarantor
covenants and agrees that from and after the date hereof and so long as any of
the Obligations remain outstanding, it will: (1) promptly give written notice
to Bank of (i) the occurrence of any Default or Event of Default of which it is
or should be aware; (ii) the commencement or threat of any material litigation
or proceedings affecting it; and (iii) any dispute between it and any
governmental regulatory body or other party that might materially interfere
4
5
with its normal business operations; (2)(i) duly observe and conform to all
requirements of any governmental authorities relating to the conduct of its
business or to its properties or assets; (ii) maintain its existence as a legal
entity and obtain and keep in full force and effect all rights, franchises,
licenses and permits which are necessary to the proper conduct of its business;
and (iii) obtain or cause to be obtained as promptly as possible any
governmental, administrative or agency approval and make any filing or
registration therewith which at the time shall be required with respect to the
performance of its obligations under this Guaranty or the operation of its
business; (3) permit Bank or its authorized representative at any reasonable
time or times following the occurrence and during the continuation of an Event
of Default to inspect its books and records; (4) keep proper books of record
and account in which full, true and correct entries in accordance with
generally accepted accounting principles will be made of all dealings or
transactions in relation to its business and activities; (5) to comply with the
financial covenants set forth in Section 5.13 of the Agreement and (6) furnish
to Bank the following financial statements, all in reasonable detail, prepared
in accordance with generally accepted accounting principles applied on a basis
consistently maintained throughout the period involved, (a) as soon as
available, but not later than 120 days after each fiscal year end, its
consolidated balance sheet as at the end of such fiscal year, and its
consolidated statements of income and changes in cash flows for such fiscal
year, audited by certified public accountants acceptable to Bank; (b) as soon
as available, but no later than 90 days after the end of each of the first
three quarterly periods of each fiscal year, its consolidated balance sheet as
at the end of such quarterly period and its consolidated statement of income
for such quarterly period and for the portion of the fiscal year then ended,
certified by its chief financial officer; and (c) promptly, such additional
financial and other information as Bank may from time to time reasonably
request.
7. Notices. All notices, requests and demands to or
upon Guarantor, and all notices or requests to Bank, shall be deemed duly given
or made, if given by telecopier, when sent, if given by personal delivery or
overnight commercial carrier, when delivered or if mailed, the third calendar
day after deposit in the United States mail, first class postage prepaid,
addressed to such party at its address (or telecopier number) set forth below
or to such other address or telecopier number as may be hereafter designated in
writing by either of them to the other:
if to Guarantor: INTERNATIONAL AIRCRAFT INVESTORS
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: President
Telecopier No. (000) 000-0000
Telephone No. (000) 000-0000
5
6
if to Bank: XXXXX FARGO BANK, N.A.
000 Xxxxxxxx Xxxxxxxxx, 0000-000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxx
Telecopier No. (000) 000-0000
Telephone No. (000) 000-0000
8. No Waiver; Cumulative Remedies. A waiver by Bank of
any right or remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which Bank would otherwise have had on any future
occasion. No failure to exercise nor any delay in exercising on the part of
Bank any right, power or privilege hereunder, shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
herein provided are cumulative and may be exercised singly or concurrently, and
are not exclusive of any rights and remedies provided by law.
9. Miscellaneous.
9.1 None of the terms or provisions of this Guaranty may
be amended, waived, altered, modified, or terminated except by an instrument in
writing signed by the party against which enforcement of such amendment,
waiver, alteration, modification or termination is sought. This writing
contains the complete, final and exclusive statement of the terms of the
agreement between Guarantor and Bank relating to this guaranty. This Guaranty
and all obligations of Guarantor hereunder shall be binding upon the successors
and assigns of Guarantor, and shall,together with the rights and remedies of
Bank hereunder, inure to the benefit of Bank and its successors and assigns.
The invalidity, illegality or unenforceability of any provision of this
Guaranty shall not affect the validity, legality or enforceability of any other
provision of this Guaranty.
9.2 This Guaranty shall be governed by, and be construed
and interpreted in accordance with, the laws of the State of California.
9.3 Guarantor acknowledges and agrees to the arbitration
provisions attached hereto as Exhibit "A", the terms of which are incorporated
herein.
9.4 Bank and Guarantor waive trial by jury in any
litigation relating to, or in connection with, this Guaranty in which they
shall be adverse parties.
6
7
IN WITNESS WHEREOF, the undersigned has caused this Guaranty
to be duly executed and delivered by its duly authorized officer as of the day
and year first above written.
INTERNATIONAL AIRCRAFT INVESTORS
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Title: President
---------------------------------
7
8
ARBITRATION:
(a) Arbitration. Upon the demand of any party, any
Dispute shall be resolved by binding arbitration (except as set forth in (e)
below) in accordance with the terms of this Agreement. A "Dispute" shall mean
any action, dispute, claim or controversy of any kind, whether in contract or
tort, statutory or common law, legal or equitable, now existing or hereafter
arising under or in connection with, or in any way pertaining to, this
Agreement and each other document, contract and instrument required hereby or
now or hereafter delivered to Bank in connection herewith (collectively, the
"Documents"), or any past, present or future extensions of credit and other
activities, transactions or obligations of any kind related directly or
indirectly to any of the Documents, including without limitation, any of the
foregoing arising in connection with the exercise of any self-help, ancillary
or other remedies pursuant to any of the Documents. Any party may by summary
proceedings bring any action in court to compel arbitration of a Dispute. Any
party who fails or refuses to submit to arbitration following a lawful demand
by any other party shall bear all costs and expenses incurred by such other
party in compelling arbitration of any Dispute.
(b) Governing Rules. Arbitration proceedings shall be
administered by the American Arbitration Association ("AAA") or such other
administrator as the parties shall mutually agree upon in accordance with the
AAA Commercial Arbitration Rules. All Disputes submitted to arbitration shall
be resolved in accordance with the Federal Arbitration Act (Title 9 of the
United States Code), notwithstanding any conflicting choice of law provision in
any of the Documents. The arbitration shall be conducted at a location in
California selected by the AAA or other administrator. If there is any
inconsistency between the terms hereof and any such rules, the terms and
procedures set forth herein shall control. All statutes of limitation
applicable to any Dispute shall apply to any arbitration proceeding. All
discovery activities shall be expressly limited to matters directly relevant to
the Dispute being arbitrated. Judgment upon any award rendered in an
arbitration may be entered in any court having jurisdiction; provided however,
that nothing contained herein shall be deemed to be a waiver by any party that
is a bank of the protections afforded to it under 12 U.S.C. Section 91 or any
similar applicable state law.
(c) No Waiver; Provisional Remedies, Self-Help and
Foreclosure. No provision hereof shall limit the right of any party to
exercise self-help remedies such as setoff, foreclosure against or sale of any
real or personal property collateral or security, or to obtain provisional or
ancillary remedies, including without limitation injunctive relief,
sequestration, attachment, garnishment or the appointment of a receiver, from a
court of competent jurisdiction before, after or during the pendency of any
arbitration or other proceeding. The exercise of any such remedy shall not
waive the right of any party to compel arbitration hereunder.
1
9
(d) Arbitration Qualifications and Powers; Awards.
Arbitrators must be active members of the California State Bar or retired
judges of the state or federal judiciary of California, with expertise in the
substantive law applicable to the subject matter of the Dispute. Arbitrators
are empowered to resolve Disputes by summary rulings in response to motions
filed prior to the final arbitration hearing. Arbitrators (i) shall resolve
all Disputes in accordance with the substantive law of the state of California,
(ii) may grant any remedy or relief that a court of the state of California
could order or grant within the scope hereof and such ancillary relief as is
necessary to make effective any award, and (ii) shall have the power to award
recovery of all costs and fees, to impose sanctions and to take such other
actions as they deem necessary to the same extent a judge could pursuant to the
Federal Rules of Civil Procedure, the California Rules of Civil Procedure or
other applicable law. Any dispute in which the amount in controversy is
$5,000,000 or less shall be decided by a single arbitrator who shall not render
an award of greater than $5,000,000 (including damages, costs, fees and
expenses). By submission to a single arbitrator, each party expressly waives
any right or claim to recover more than $5,000,000. Any Dispute in which the
amount in controversy exceeds $5,000,000 shall be decided by majority vote of a
panel of three arbitrators; provided however that all three arbitrators must
actively participate in all hearings and deliberations.
(e) Judicial Review. Notwithstanding anything herein to
the contrary, in any arbitration in which the amount in controversy exceeds
$10,000,000, the arbitrators shall be required to make specific, written
findings of fact and conclusions of law. In such arbitrations (i) the
arbitrators shall not have the power to make any award which is not supported
by substantial evidence or which is based on legal error, (ii) an award shall
not be binding upon the parties unless the findings of fact are supported by
substantial evidence and the conclusions of law are not erroneous under the
substantive law of the state of California, and (iii) the parties shall have in
addition to the grounds referred to in the Federal Arbitration Act for
vacating, modifying or correcting an award the right to judicial review of (A)
whether the findings of fact rendered by the arbitrators are supported by
substantial evidence, and (B) whether the conclusions of law are erroneous
under the substantive law of the state of California. Judgment confirming an
award in such a proceeding may be entered only if a court determines the award
is supported by substantial evidence and not based on legal error under the
substantive law of the state of California.
(f) Miscellaneous. To the maximum extent practicable,
the AAA, the arbitrators and the parties shall take all action required to
conclude any arbitration proceeding within 180 days of the filing of the
Dispute with the AAA. No arbitrator or other party to an arbitration
proceeding may disclose the existence, content or results thereof, except for
disclosures of information by a party required in the ordinary course of its
business, by applicable law or regulation, or to the extent necessary to
exercise any judicial review rights set forth herein. If more than one
agreement for arbitration by or between the parties potentially applies to a
Dispute, the arbitration provision most directly related to the Documents or
the subject matter of the Dispute shall control.
2
10
This Agreement may be amended or modified only in writing signed by Bank and
Borrower. If any provision of this Agreement shall be held to be prohibited by
or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or any remaining provisions of this Agreement.
This arbitration provision shall survive termination, amendment or expiration
of any of the Documents or any relationship between the parties.
3
