PARENT GUARANTOR GUARANTY AGREEMENT
THIS PARENT GUARANTOR GUARANTY AGREEMENT (this "Guaranty Agreement" or
this "Guaranty"), dated as of February 28, 2006 is made by AIRCASTLE INVESTMENT
LIMITED (the "Guarantor") to JPMORGAN CHASE BANK, N.A., as Agent (the "Agent")
for each of the lenders from time to time parties to the Credit Agreement (the
"Lenders" and collectively with the Agent and each other holder of an Obligation
(as hereinafter defined) the "Guaranteed Parties"). All capitalized terms used
but not otherwise defined herein shall have the meaning ascribed to such terms
in the Credit Agreement (as defined below).
WITNESSETH:
WHEREAS, the Agent and the Lenders have agreed to provide a revolving
credit facility to certain Holdings Subsidiary Trusts and Holdings SPCs
designated as Borrowing Affiliates (such Borrowing Affiliates are referred to
hereinafter individually as a "Borrower" and collectively as the "Borrowers")
pursuant to that certain Credit Agreement dated as of February, 2006 among the
Borrowers, the Agent and the Lenders (as from time to time amended, revised,
modified, supplemented or amended and restated, the "Credit Agreement"); and
WHEREAS, each Borrower is a trust or corporation that holds title to
Aircraft; and
WHEREAS, the Guarantor is the indirect owner of the stock of a
Borrower; and
WHEREAS, the Guarantor will materially benefit from the Loans to be
made under the Credit Agreement and the Guarantor is willing to enter into this
Guaranty to provide an inducement for the Lenders to make loans and advances
under the Credit Agreement; and
WHEREAS, a material part of the consideration given in connection with
and as an inducement to the execution and delivery of the Credit Agreement by
the Agent and the Lenders was the obligation of each Parent Guarantor to
guarantee the Obligations of the Borrowers under the Credit Agreement; and
WHEREAS, as a condition to making and continuing to make Loans under
the Credit Agreement, the Guarantor is required to guarantee to the Guaranteed
Parties payment of the Obligations in accordance with the terms of this
Agreement; and
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the Guarantor hereby agrees as follows:
1. GUARANTY. The Guarantor hereby unconditionally, absolutely,
directly, primarily and irrevocably guarantees to the Guaranteed Parties the
timely and complete payment and performance in full of the Obligations (as
defined below). For all purposes of this Agreement, "Obligations" means the
unpaid principal of and interest on (including, without limitation, interest
accruing after the maturity of the Loans and interest accruing after the filing
of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to Bermuda Holding 2 Ltd., AI 3 Ltd.
or any Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) the Loans and all other obligations and
liabilities of Bermuda Holding 2 Ltd., AI 3 Ltd. or any Borrower to the Agent or
to any Lender (or in the case of Rate Hedging Obligations, any affiliate of any
Lender), whether direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise under, out of, or in
connection with, the Credit Agreement (after giving effect to the provisions of
Section 4.6 thereof as applicable to the Borrowers), any other Loan Document,
any Rate Hedging Obligation entered into with any Lender or any affiliate of any
Lender or any other document made, delivered or given in connection therewith,
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation, all fees, charges
and disbursements of counsel to the Agent (acting in any capacity) or to any
Lender that are required to be paid by Bermuda Holding 2 Ltd., AI 3 Ltd. or any
Borrower pursuant thereto) or otherwise. Anything herein or in any other Loan
Document to the contrary notwithstanding, the maximum liability of the Guarantor
hereunder and under the other Loan Documents shall in no event exceed the amount
which can be guaranteed by the Guarantor under applicable federal and state laws
relating to the insolvency of debtors. The Guarantor agrees that the Obligations
may at any time and from time to time exceed the amount of the liability of the
Guarantor hereunder without impairing this Guaranty or affecting the rights and
remedies of the Guaranteed Parties hereunder.
2. UNCONDITIONAL OBLIGATIONS. This is a guaranty of payment and not of
collection. The Guarantor's obligations under this Guaranty Agreement shall be
absolute and unconditional irrespective of the validity, legality or
enforceability of the Credit Agreement or any other Loan Document or any other
guaranty of the Obligations, and shall not be affected by any action taken under
the Credit Agreement or any other Loan Document, any other guaranty of the
Obligations, or any other agreement between the Guaranteed Parties and any
Borrower or any other Person, in the exercise of any right or power therein
conferred, or by any failure or omission to enforce any right conferred thereby,
or by any waiver of any covenant or condition therein provided, or by any
acceleration of the maturity of any of the Obligations, or by the release or
other disposal of any security for any of the Obligations, or by the dissolution
of any Borrower or the combination or consolidation of any Borrower into or with
another entity or any transfer or disposition of any assets of any Borrower or
by any extension or renewal of the Credit Agreement or any other Loan Document,
in whole or in part, or by any modification, alteration, amendment or addition
of or to the Credit Agreement or any other Loan Document, any other guaranty of
the Obligations, or any other agreement between the Secured Parties and any
Credit Borrower or any other Person, or by any other circumstance whatsoever
(with or without notice to or knowledge of any Guarantor) which may or might in
any manner or to any extent vary the risks of the Guarantor, or might otherwise
constitute a legal or equitable discharge of a surety or a guarantor; it being
the purpose and intent of the parties hereto that this Guaranty Agreement and
the Guarantor's obligations hereunder shall be absolute and unconditional under
any and all circumstances and shall not be discharged except by payment as
herein provided.
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3. CURRENCY AND FUNDS OF PAYMENT; WITHHOLDING. The Guarantor hereby
guarantees that the Obligations will be paid in lawful currency of the United
States of America and in immediately available funds, regardless of any law,
regulation or decree now or hereafter in effect that might in any manner affect
the Obligations including, without limitation: (A) the application of any such
law, regulation, decree or order, including any prior approval, which would
prevent the exchange of a Non-USD Currency (as hereinafter defined) for U.S.
Dollars or the remittance of funds outside of such jurisdiction or the
unavailability of U.S. Dollars in any legal exchange market in such jurisdiction
in accordance with normal commercial practice; or (B) a declaration of banking
moratorium or any suspension of payments by banks in such jurisdiction or the
imposition by such jurisdiction or any governmental authority thereof of any
moratorium on, the required rescheduling or restructuring of, or required
approval of payments on, any indebtedness in such jurisdiction; or (C) any
expropriation, confiscation, nationalization or requisition by such country or
any Governmental Authority that directly or indirectly deprives any Borrower of
any assets or their use or of the ability to operate its business or a material
part thereof; or (D) any war (whether or not declared), insurrection,
revolution, hostile act, civil strife or similar events occurring in such
jurisdiction which has the same effect as the events described in clause (A),
(B) or (C) above (in each of the cases contemplated in clauses (A) through (D)
above, to the extent occurring or existing on or at any time after the date of
this Guaranty), or the rights of the Guaranteed Parties with respect thereto as
against any Borrower, or cause or permit to be invoked any alteration in the
time, amount or manner of payment by any Borrower of any or all of the
Obligations. The Guarantor shall make all payments at the Agent's address for
payment set forth in the Credit Agreement or such other address as the Agent
shall give notice of to the Guarantor. All payments made or to be made by the
Guarantor under this Guaranty shall be made free and clear of, and without
deduction for, any present or future withholdings in respect of Taxes save for
such withholdings in respect of Taxes as may be required to be made from such
payments by any law, regulation or practice. If any such withholding is required
to be made, the Guarantor shall (i) pay the full amount required to be withheld
to the relevant taxation or other Governmental Authority within the time allowed
for such payment under applicable law, and then deliver to the other party
hereto within 30 days after it has made such payment an original receipt (or
certified copy thereof) issued by such Governmental Authority evidencing payment
thereof (or other evidence of payment reasonably satisfactory to such other
party) and (ii) increase the amount to be paid to the other party hereto to
ensure that such other party receives and retains a sum equal to the sum which
it would have received and so retained, had no such withholding been made or
required to be made.
4. SUITS. At the election of the Guaranteed Parties, one or more and
successive or concurrent suits may be brought hereon against the Guarantor by
any of the Guaranteed Parties, whether or not suit has been commenced against
any Borrower, any other guarantor of the Obligations, or any other Person and
whether or not the Guaranteed Parties have taken or failed to take any other
action to collect all or any portion of the Obligations or have taken or failed
to take any actions against any collateral securing payment or performance of
all or any portion of the Obligations.
5. SET-OFF AND WAIVER. The Guarantor waives any right to assert
against the Secured Parties as a defense, counterclaim, set-off or cross claim,
any defense (legal or equitable) or other claim which the Guarantor may now or
at any time hereafter have against any Borrower or any Credit Party or any
Guaranteed Party, including but not limited to any change in
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the corporate existence, structure or ownership of any Borrower, or any
insolvency, bankruptcy, reorganization or other similar proceeding affecting any
Borrower or its assets or any resulting release or discharge of any Obligation,
without waiving any additional defenses, set-offs, counterclaims or other claims
otherwise available to the Guarantor. If at any time hereafter any Guaranteed
Party employs counsel for advice or other representation to enforce the
Guarantor's Obligations that arise out of an Event of Default, then, in any of
the foregoing events, all of the reasonable attorneys' fees arising from such
services and all expenses, costs and charges in any way or respect arising in
connection therewith or relating thereto shall be paid by the Guarantor to the
Agent, for the benefit of the Guaranteed Parties, on demand.
6. WAIVER; SUBROGATION.
(a) The Guarantor hereby waives notice of the following events or
occurrences: (i) acceptance of this Guaranty Agreement; (ii) the Lenders'
heretofore, now or from time to time hereafter making Loans and otherwise
loaning monies or giving or extending credit to or for the benefit of any
Borrower, whether pursuant to the Credit Agreement or any other Loan Document or
any amendments, modifications, or supplements thereto, or replacements or
extensions thereof; (iii) the Guaranteed Parties or any Borrower heretofore, now
or at any time hereafter, obtaining, amending, substituting for, releasing,
waiving or modifying the Credit Agreement or any other Loan Documents; (iv)
presentment, demand, default, non-payment, partial payment, protest, promptness
and diligence; (v) any Guaranteed Party heretofore, now or at any time hereafter
granting to any Borrower (or any other party liable to the Lenders on account of
the Obligations) or to any other guarantor any indulgence or extensions of time
of payment of the Obligations; and (vi) any Guaranteed Party heretofore, now or
at any time hereafter accepting from any Borrower, any other guarantor of the
Obligations or any other Person, any partial payment or payments on account of
the Obligations or any collateral securing the payment thereof or the Agent
settling, subordinating, compromising, discharging or releasing the same. The
Guarantor agrees that each Guaranteed Party may heretofore, now or at any time
hereafter do any or all of the foregoing in such manner, upon such terms and at
such times as each Guaranteed Party, in its sole and absolute discretion, deems
advisable, without in any way or respect impairing, affecting, reducing or
releasing the Guarantor from its obligations hereunder, and the Guarantor hereby
consents to each and all of the foregoing events or occurrences.
(b) The Guarantor hereby expressly waives any right it may have to require
any Guaranteed Party, to (i) prosecute collection or seek to enforce or resort
to any remedies against any Borrower or any other guarantor of the Obligations,
or (ii) seek to enforce or resort to any remedies with respect to any security
interests, Liens or encumbrances granted to the Agent by any Borrower, or any
other Person on account of the Obligations, or any guaranty thereof. Neither the
Agent nor any other Guaranteed Party shall have any obligation to protect,
secure or insure any of the foregoing security interests, Liens or encumbrances
on the properties or interests in properties subject thereto. The Guarantor's
obligations hereunder shall in no way be impaired, affected, reduced, or
released by reason of any Guaranteed Party's failure or delay to do or take any
of the acts, actions or things described in this Guaranty including, without
limiting the generality of the foregoing, those acts, actions and things
described in this Section 7.
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(c) The Guarantor further agrees with respect to this Guaranty that the
Guarantor shall have no right of subrogation, reimbursement or indemnity, nor
any right of recourse to security for the Obligations until the Stated
Termination Date and payment in full of the Obligations.
7. EFFECTIVENESS; ENFORCEABILITY. This Guaranty Agreement shall be
effective as of the date hereof and shall continue in full force and effect
until the Stated Termination Date and payment in full of the Obligations. This
Guaranty Agreement shall be binding upon and inure to the benefit of the
Guarantor, the Guaranteed Parties and their respective successors and assigns.
Notwithstanding the foregoing, the Guarantor may not, without the prior written
consent of the Agent, assign any rights, powers, duties or obligations
hereunder. Any claim or claims that the Secured Parties may at any time
hereafter have against the Guarantor under this Guaranty Agreement may be
asserted by any Secured Party by written notice directed to the Guarantor.
8. REPRESENTATIONS AND WARRANTIES. The Guarantor warrants and
represents to the Agent for the benefit of the Guaranteed Parties that:
(a) Organization and Authority.
1. The Guarantor is a corporation, partnership or limited liability
company duly organized and validly existing under the laws of the
jurisdiction of its formation;
2. The Guarantor (x) has the requisite power and authority to own its
properties and assets and to carry on its business as now being conducted
and as contemplated in the Loan Documents, and (y) is qualified to do
business in every jurisdiction in which failure so to qualify would have a
Material Adverse Effect;
3. The Guarantor has the power and authority to execute, deliver and
perform this Agreement and to execute, deliver and perform each of the
other Loan Documents to which it is a party; and
4. When executed and delivered, each of the Loan Documents to which
the Guarantor is a party will be the legal, valid and binding obligation or
agreement, as the case may be, of the Guarantor, enforceable against the
Guarantor in accordance with its terms, subject to the effect of any
applicable bankruptcy, moratorium, insolvency, reorganization or other
similar law affecting the enforceability of creditors' rights generally and
to the effect of general principles of equity (whether considered in a
proceeding at law or in equity);
(b) Loan Documents. The execution, delivery and performance by the
Guarantor of the Loan Documents to which it is a party:
1. have been duly authorized by all requisite Organizational Action of
the Guarantor required for the lawful execution, delivery and performance
thereof;
2. do not violate any provisions of (i) applicable law, rule or
regulation, (ii) any judgment, writ, order, determination, decree or
arbitral award of any Governmental
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Authority or arbitral authority binding on the Guarantor or its respective
properties, or (iii) the Organizational Documents of the Guarantor;
3. does not and will not be in conflict with, result in a breach of or
constitute an event of default, or an event which, with notice or lapse of
time or both, would constitute an event of default, under any contract,
indenture, agreement or other instrument or document to which the Guarantor
is a party, or by which the properties or assets of the Guarantor are
bound; and
4. does not and will not result in the creation or imposition of any
Lien upon any of the properties or assets of the Guarantor except any Liens
in favor of the Agent and the Lenders created by the Security Instruments;
(d) Solvency. At the time of each Loan to a Borrower, the Guarantor is
Solvent after giving effect to the transactions contemplated by the Loan
Documents;
(e) Subsidiaries and Stockholders. The Guarantor (i) owns 100% of the
beneficial interest of each of its direct Subsidiaries and (ii) does not have
any direct Subsidiaries other than those included in the Pledged Interests and
listed on Schedule 8(e), as such schedule shall be updated from time to time and
delivered to the Agent, including upon the creation of a new direct Subsidiary
of the Parent pursuant to Section 7.16 of the Credit Agreement;
(f) Liens. The Agent (for itself and on behalf of the Lenders) has a first
priority perfected Lien (subject to Permitted Liens (as defined below)) on all
Parent Guarantor Collateral pledged by the Parent Guarantors under the Security
Instruments;
(g) Taxes. Except as set forth in Schedule 8(g), the Guarantor has filed or
caused to be filed all federal, state, local and foreign Tax returns in each
case that are required to be filed by it and that, the failure to file, would
have a Material Adverse Effect (individually or in the aggregate) and, except
for Taxes and assessments being contested in good faith by appropriate
proceedings diligently conducted and against which reserves in accordance with
GAAP reflected in the financial statements most recently delivered pursuant to
Section 7.1 of the Credit Agreement and satisfactory to the Guarantor's
independent certified public accountants have been established, have paid or
caused to be paid all Taxes as shown on said returns or on any assessment
received by it, to the extent that such Taxes have become due;
(i) Litigation. Except as set forth in Schedule 8(i), there is no action,
suit, investigation or proceeding at law or in equity or by or before any
governmental instrumentality or agency or arbitral body pending, or, to the
knowledge of the Guarantor, threatened by or against the Guarantor or affecting
the Guarantor or any properties or rights of the Guarantor, which (i) is not
covered by insurance and (ii) could reasonably be likely to have a Material
Adverse Effect;
(j) Investment Company. The Guarantor is not an "investment company," or
"promoter" or "principal underwriter" for, an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended (15 U.S.C.
Section 80a-1, et seq.). The performance by the Guarantor of the transactions
contemplated by the Loan Documents will not violate any provision of said Act,
or any rule, regulation or order issued by the Securities and Exchange
Commission thereunder, in each case as in effect on the date hereof;
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(k) No Consents, Etc. Neither the respective businesses or properties of
the Guarantor, nor any relationship among the Guarantor and the other Person,
nor any circumstance in connection with the execution, delivery and performance
of the Loan Documents and the transactions contemplated thereby, is such as to
require a consent, approval or authorization of, or filing, registration or
qualification with, any Governmental Authority or any other Person on the part
of the Guarantor as a condition to the execution, delivery and performance of,
or consummation of the transactions contemplated by the Loan Documents, which,
if not obtained or effected, would be reasonably likely to have a Material
Adverse Effect, or if so, such consent, approval, authorization, filing,
registration or qualification has been duly obtained or effected, as the case
may be;
(l) Employee Benefit Plans.
1. The Guarantor has not, nor has any of its Subsidiaries ever
sponsored any Single Employer Plan or any Multiemployer Plan, or had any
obligation to fund any such plan;
2. Neither the Guarantor nor any ERISA Affiliate has incurred any
"accumulated funding deficiency" within the meaning of Section 412 of the
Code or Section 302 of ERISA with respect to any Single Employer Plan,
whether or not waived, during the six-year period prior to the date on
which this representation is made or deemed made or any other liability to
the PBGC which remains outstanding, in each case, in an amount that would
be reasonably likely to have a Material Adverse Effect;
3. No Termination Event has occurred during the six-year period prior
to the date on which this representation is made or deemed made or is
reasonably expected to occur with respect to any Single Employer Plan or
Multiemployer Plan, neither the Guarantor nor any ERISA Affiliate has
incurred any unpaid withdrawal liability with respect to any Multiemployer
Plan that, in each case, could be reasonably expected to have a Material
Adverse Effect; and
4. The present value of all accrued benefits under each Single
Employer Plan (based on those assumptions used to fund such Single Employer
Plan) did not, as of the last annual valuation date prior to the date on
which this representation is made or deemed made for each such plan, exceed
the then current value of the assets of such Single Employer Plan allocable
to such benefits by a material amount;
(k) Financial Condition. The audited consolidated financial statements of
the Parent and its Subsidiaries dated December 31, 2004 and the unaudited
consolidated financial statements of the Parent and its Subsidiaries dated
September 30, 2005, copies of each of which have been furnished to each Lender
on or before the Closing Date, have been prepared using accounting methods,
procedures and policies which are in accordance with GAAP and present fairly in
all material respects the financial position of the Parent and its Subsidiaries
on a consolidated basis, in each case, as at the dates thereof, and the results
of operations and statements of cash flows for the periods then ended (as to any
unaudited interim financial statements, subject to normal year-end audit
adjustments and the absence of footnotes). Neither the Parent nor any of its
Subsidiaries had, to the knowledge of the Guarantor, as at the date of the most
recent balance
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sheet referred to above, any material Contingent Obligation, contingent
liability or liability for taxes, or any long term lease or unusual forward or
long term commitment, including, without limitation, any interest rate or
foreign currency swap or exchange transaction, which is not reflected in the
foregoing statements or in the notes thereto and which, to the knowledge of the
Guarantor, has any reasonable likelihood of resulting in a material cost or
loss. Since September 30, 2005 there has been no development or event which has
had a Material Adverse Effect.
The Guarantor agrees that the foregoing representations and warranties
shall be (a) true, correct and complete in all material respects when made or
deemed to have been made and (b) made or deemed made by the Guarantor on the
date of each borrowing by the Borrower under the Credit Agreement on and as of
such date of borrowing as though made hereunder on and as of such date (unless
such representation and warranties refers to a different date, in which case
such representation and warranties shall be made on and/or as of such different
date).
9. AFFIRMATIVE COVENANTS. Unless the Required Lenders shall otherwise
consent in writing, the Parent will, and will cause each Parent Guarantor to:
(a) Existence, Qualification, Etc. Except as otherwise expressly
permitted under Section 10(e), do or cause to be done all things necessary
to preserve and keep in full force and effect its existence and all
material rights and franchises, and maintain its license or qualification
to do business as a foreign corporation and good standing in each
jurisdiction in which failure to so maintain would have a Material Adverse
Effect;
(b) Regulations and Taxes. Comply with or contest in good faith all
statutes and governmental regulations and timely pay all Taxes,
assessments, governmental charges, claims for labor, supplies, rent and any
other obligation which, if unpaid, would become a Lien other than a
Permitted Lien against any of its properties, unless such Lien could not
reasonably be expected to have a Material Adverse Effect;
(c) True Books. Keep true books of record and account in which full,
true and correct entries will be made of all of its dealings and
transactions, and set up on its books such reserves as may be required by
GAAP with respect to doubtful accounts and all taxes, assessments, charges,
levies and claims and with respect to its business in general, and include
such reserves in interim as well as year-end financial statements;
(d) Right of Inspection. Permit any Person designated by any Lender or
the Agent to visit and inspect any corporate book or financial report of
the Guarantor and to discuss its affairs, finances and accounts with its
principal officers and independent certified public accountants; all at
reasonable times, at reasonable intervals and with reasonable prior notice;
provided that upon an Event of Default such access shall be at any time;
(e) Observe all Laws. Conform to and duly observe all laws, rules and
regulations and all other valid requirements of any Governmental Authority
with respect to the conduct of its business unless the failure to so
conform or observe would not have a Material Adverse Effect;
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(f) Governmental Licenses. Obtain and maintain all licenses, permits,
certifications and approvals of all applicable Governmental Authorities of
which the failure to so obtain and maintain would have a Material Adverse
Effect and as contemplated by the Loan Documents;
(g) Cash Distributions by Subsidiaries. The Parent shall cause each of
its Subsidiaries to transfer any cash held in a lockbox account to secure
such Subsidiary's obligations (other than Obligations) to an account of the
Parent or any Subsidiary that is subject to an Account Control Agreement
within 10 days after such Subsidiary is otherwise permitted to do so under
the terms of the agreements governing such obligations.
(h) Officer's Knowledge of Default. Upon any officer of the Guarantor
obtaining knowledge of any Default or Event of Default under the Credit
Agreement or any other obligation of any Parent Guarantor, Borrower or any
Subsidiary or other Credit Party to any Lender, or any event, development
or occurrence which could reasonably be expected to have a Material Adverse
Effect, cause such officer or an Authorized Representative to promptly
notify the Agent of the nature thereof, the period of existence thereof,
and what action such Parent Guarantor, Borrower or such Subsidiary or other
Credit Party proposes to take with respect thereto;
(i) Suits or Other Proceedings. Upon any officer of the Guarantor or
any other Parent Guarantor or Borrower obtaining knowledge of any action,
suit, litigation, investigation, or other proceeding being instituted or
threatened against any Parent Guarantor, Borrower or any Subsidiary or
other Credit Party, in any court or before any Governmental Authority, or
any attachment, levy, execution or other process being instituted against
any assets of any Parent Guarantor, Borrower or any Subsidiary or other
Credit Party, making a claim or claims in an aggregate amount greater than
$5,000,000 exclusive of punitive damages, not otherwise covered by
insurance or that would be reasonably expected to have a Material Adverse
Effect, promptly deliver to the Agent written notice thereof stating the
nature and status of such action, suit, litigation, investigation, dispute,
proceeding, levy, execution or other process; and
(j) Employee Benefit Plans. Without limiting the generality of Section
10(g) with reasonable promptness, and in any event within thirty (30) days
after the Guarantor knows or has reason to know thereof, give notice to the
Agent of (a) the establishment of any Single Employer Plan (which notice
shall include a copy of such plan), (b) the failure of the Guarantor or any
ERISA Affiliate to make a required installment or payment under Section 302
of ERISA or Section 412 of the Code by the due date; (c) the occurrence of
a Termination Event with respect to any Single Employer Plan or
Multiemployer Plan; and (d) the institution of proceedings or the taking of
any other action by the PBGC or the Guarantor or any ERISA Affiliate or any
Multiemployer Plan with respect to the withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan.
10. NEGATIVE COVENANTS. Unless the Required Lenders shall otherwise
consent in writing:
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(a) Liens. The Parent will not, and will not permit any Subsidiary to
incur, create or permit to exist any Lien, charge or other encumbrance of any
nature whatsoever with respect to any property or assets now owned or hereafter
acquired by the Guarantor except the following ("Permitted Liens"):
1. Liens created under the Security Instruments in favor of the Agent
and the Lenders;
2. Liens set forth in Schedule 10(a);
3. Liens imposed by law for Taxes (A) not yet due or (B) which are
being contested in good faith by appropriate proceedings diligently
conducted, if, with respect to each Lien described in this clause (B)
unless such Lien could not reasonably be expected to have a Material
Adverse Effect, adequate reserves with respect thereto are maintained on
the books of the Parent and/or its Subsidiaries in accordance with GAAP;
4. Liens arising out of any judgment or award with respect to which an
appeal or proceeding for review is being prosecuted in good faith by
appropriate proceedings diligently conducted, and with respect to which a
stay of execution is in effect;
5. statutory Liens of landlords and Liens of mechanics, materialmen
and other Liens imposed by law or created in the ordinary course of
business and (i) in existence less than 90 days from the date of creation
thereof for amounts not yet due or (ii) which are being contested in good
faith by appropriate proceedings diligently conducted, which are inferior
in respect of the Collateral to the Liens conferred under the Security
Instruments or with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with GAAP;
6. Liens securing Indebtedness described in Section 8.4(b) of the
Credit Agreement;
7. Liens securing Indebtedness described in Section 10(b)5 so long as
such Liens are limited to the assets and property of, and the ownership
interests in, the Subsidiaries of the Parent Guarantor referred to therein;
and
8. "Permitted Liens" as defined in the Credit Agreement and as defined
in each of the AI 2 Credit Agreement and the Bermuda Holding 1/AI 1 Credit
Agreement or substantially similar Liens permitted under the terms of any
agreement pursuant to which a Subsidiary incurs Non-Recourse Indebtedness
described in Section 10(b)5, so long as such Liens are limited to the
assets and property of a Subsidiary of a Parent Guarantor financed by such
Non-Recourse Indebtedness;
9. cash deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of
business;
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10. easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business;
11. liens in respect of repurchase obligations entered into in the
ordinary course of business;
12. additional Liens securing Indebtedness in an aggregate amount not
exceeding $1,000,000; and
13. liens in respect of any interest or title of a lessor under any
real estate lease entered into by the Parent or any of its Subsidiaries in
the ordinary course of its business and covering any furniture, fixtures or
other personal property located at the property so leased and any cash
deposit which may be required to be provided to the landlord
(b) Indebtedness. The Parent will not, and will not permit any Subsidiary
to incur, create, assume or permit to exist any Indebtedness, howsoever
evidenced, except:
1. Indebtedness owing to (including guaranties in favor of) the Agent
or any Lender in connection with this Agreement, the Credit Agreement, any
Note or other Loan Document;
2. the endorsement of negotiable instruments for deposit or collection
or similar transactions in the ordinary course of business;
3. Indebtedness arising from swap, hedge or other derivative
arrangements entered into in the ordinary course of business;
4. Contingent Obligations of any Parent Guarantor in support of (a)
any Subsidiary in connection with the lease of any aircraft-related asset
pursuant to which such Subsidiary is the lessor, (b) any Subsidiary in
connection with any purchase of any aircraft-related asset pursuant to
which such Subsidiary is the seller or purchaser, (c) any obligations of
any Borrower, any "Guarantor" (as defined in the Credit Agreement) or
Parent Guarantor or (d) any Indebtedness described in Sections 10(b)3 or
10(b)6;
5. Non-Recourse Indebtedness incurred by any Subsidiary of a Parent
Guarantor (that is not itself a Parent Guarantor) to finance or refinance
the acquisition of, or improvement to, or conversion of, any
aircraft-related assets in an aggregate principal amount outstanding at any
time not greater than 100% of the depreciated book value of such
aircraft-related assets (including, without limitation, any improvement
thereto and expenses related thereto);
6. Repurchase obligations entered into in the ordinary course of
business;
7. Indebtedness under or in respect of the AI 2 Credit Agreement, the
Bermuda Holding I/AI 1 Credit Agreement or any Indebtedness set forth on
Schedule 10(b)7;
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8. Indebtedness of any Borrower, any "Guarantor" (as defined in the
Credit Agreement) or any Parent Guarantor to any Borrower, any such
"Guarantor" or any Parent Guarantor;
9. Indebtedness of a Subsidiary incurred in the ordinary course of
business under any lease of any Aircraft or Engine pursuant to which such
Subsidiary is the lessor;
10. Contingent Obligation of a Subsidiary that is not a Parent
Guarantor in support of Indebtedness described in Section 10(b)5 of any of
the Subsidiaries of the Parent Guarantor referred to therein; and
11. additional Indebtedness of the Parent and its Subsidiaries up to
but not exceeding $1,000,000 at any one time outstanding.
(c) Transfer of Assets. The Parent will not, and will not permit any
other Parent Guarantor to sell, lease, transfer or otherwise dispose of any
Securitization Interest or other Parent Guarantor Collateral pledged by it
to any Person which is not a Guarantor, a Parent Guarantor or a Borrower,
unless such sale, lease, transfer or disposition is for cash or Cash
Equivalents and upon fair and reasonable terms no less favorable to the
Parent or the Parent Guarantor, as applicable, than would be obtained in a
comparable arm's-length transaction with a Person not an Affiliate;
(d) Subsidiaries; Investments. The Guarantor will not, and will not
permit any Subsidiary to make any Investments in any Person that is an
Affiliate of the Parent but is not a Subsidiary of the Parent (a
"Restricted Investment");
(e) Merger or Consolidation. The Guarantor will not, and will not
permit any other Parent Guarantor to (i) Consolidate with or merge into any
other Person, (ii) permit any other Person to merge into it, or (iii) in
the case of the Parent only, liquidate, wind-up or dissolve; unless, in the
case of clauses (i) and (ii), the surviving entity, by a written
instrument, assumes the obligations of the applicable Parent Guarantor;
(f) Transactions with Affiliates. The Guarantor will not, and will not
permit any Subsidiary to enter into any transaction, including, without
limitation, the purchase, sale, lease or exchange of property, real or
personal, or the rendering of any service, with any Affiliate of such
Person which is not a Borrower, a Guarantor (as defined in the Credit
Agreement) or a Parent Guarantor, except (a) that such Affiliate may render
services to any Borrower, any Guarantor (as defined in the Credit
Agreement) or any Parent Guarantor for compensation at the same rates
generally paid by Persons engaged in the same or similar businesses for the
same or similar services, (b) that any Borrower, any Guarantor (as defined
in the Credit Agreement) or any other Parent Guarantor may render services
to such Affiliate for compensation at the same rates generally charged by
such Person, (c) in either case in the ordinary course of business and
pursuant to the reasonable requirements of such Person's business
consistent with past practice of such Person and upon fair and reasonable
terms no less favorable to such Person than would be obtained in a
comparable arm's-length transaction with a Person not an Affiliate;
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(g) Employee Benefit Plans; ERISA Affiliates; Employees. The Guarantor
will not, and will not permit any Subsidiary to sponsor any Employee
Benefit Plan or any Multiemployer Plan or agree to have any obligation to
fund any such plan, or hire or retain any employee other than officers
thereof;
(h) Fiscal Year. The Guarantor will not, and will not permit any other
Parent Guarantor to change its Fiscal Year, or have any fiscal year other
than the Fiscal Year;
(i) Negative Pledge Clauses. The Guarantor will not, and will not
permit any Parent Guarantor to enter into or cause, suffer or permit to
exist any agreement with any Person other than the Agent and the Lenders
pursuant to this Agreement, the Credit Agreement or any other Loan
Documents which prohibits or limits the ability of the Guarantor or such
other Parent Guarantor to create, incur, assume or suffer to exist any Lien
of any Security Instruments;
(j) Partnerships. The Guarantor will not, and will not permit any
Parent Guarantor to become a general partner in any general or limited
partnership;
(k) Bank Accounts. The Guarantor will not, and will not permit any
Subsidiary to open or allow to exist any bank accounts for which the
aggregate average daily balance during any calendar month, together with
any bank accounts of the Guarantor and the other Parent Guarantors not
subject to a Security Interest as provided below, will be in excess of
$500,000 unless the Agent is granted a Security Interest in such account by
subjecting such account to an Account Control Agreement (subject to Section
11.17 of the Credit Agreement); provided that this provision shall not
apply to any bank account maintained by any Subsidiary of the Guarantor on
which a Lien is granted to secure Indebtedness permitted by Section 10(b)5,
so long as such Subsidiary is the obligor of such Indebtedness.
(l) Capital Call. The Guarantor will not, and will not permit any
Subsidiary to reduce or otherwise alter the $100,000,000 Capital Call,
other than to reduce such the amount of stock available to be purchased by
amounts previously purchased thereunder; provided that the Parent may
completely or partially release the $100,000,000 Capital Call
simultaneously with the closing of any equity issuance by the Parent in an
amount equal to the net proceeds of such equity issuance; or
(m) Restricted Payments. The Guarantor will not, and will not permit
any Subsidiary to declare or pay any dividend (other than dividends payable
solely in common stock of the Person making such dividend) on, or make any
payment on account of, or set apart assets for a sinking or other analogous
fund for, the purchase, redemption, defeasance, retirement or other
acquisition of, any Capital Stock of any Parent Guarantor, whether now or
hereafter outstanding, or make any other distribution in respect thereof or
make any Restricted Investment, either directly or indirectly, whether in
cash or property or in obligations of any Subsidiary (collectively,
"Restricted Payments"), except that:
(i) any Subsidiary may make Restricted Payments to the Parent or any
other Parent Guarantor; and
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(ii) so long as no Default or Event of Default shall have occurred and
be continuing or shall occur after giving effect thereto, the Parent may
make Restricted Payments as follows:
(A) at any time prior to the consummation of a Parent IPO, in an
amount in the aggregate from and after December 31, 2005 not to exceed
Consolidated Net Income from and after December 31, 2005 plus
$25,000,000; provided that at the time of and after giving effect to
such Restricted Payment, Consolidated Net Worth is at least
$470,000,000; and
(B) at any time after the consummation of a Parent IPO, in an
amount to be determined by the Parent.
(n) Clauses Restricting Restricted Payments. The Guarantor will not,
and will not permit any other Parent Guarantor to enter into or suffer to
exist or become effective any consensual encumbrance or restriction on its
ability to (a) make Restricted Payments in respect of any Capital Stock of
such Subsidiary held by, or pay any Indebtedness owed to, the Parent or any
other Parent Guarantor or (b) make loans or advances to, or other
Investments in, a Subsidiary that is a Parent Guarantor, except for such
encumbrances or restrictions existing under or by reason of any
restrictions existing under the Loan Documents
(o) Consolidated Net Worth. The Parent will not permit Consolidated
Net Worth at any time after the completion of a Parent IPO to be less than
$500,000,000.
11. EXPENSES. The Guarantor agrees to be liable for the payment of all
reasonable fees and expenses, including attorney's fees, incurred by the Agent
or any Guaranteed Party in connection with the enforcement of this Guaranty
Agreement.
12. REINSTATEMENT. The Guarantor agrees that this Guaranty Agreement
shall continue to be effective or be reinstated, as the case may be, at any time
payment received by the Agent under the Credit Agreement or this Guaranty
Agreement is rescinded or must be restored for any reason.
13. ATTORNEY-IN-FACT. The Guarantor hereby appoints the Agent as the
Guarantor's attorney-in-fact for the purposes of carrying out the provisions of
this Agreement and taking any action and executing any instrument which the
Agent may deem necessary or advisable to accomplish the purposes hereof, which
appointment is coupled with an interest and is irrevocable; provided, that the
Agent shall have and may exercise rights under this power of attorney only upon
the occurrence and during the continuance of an Event of Default.
14. ABSOLUTE RIGHTS AND OBLIGATIONS. All rights of the Guaranteed
Parties, and all obligations of the Guarantor hereunder, shall be absolute and
unconditional irrespective of:
1. any lack of validity or enforceability of the Credit Agreement, any
other Loan Document or any other agreement or instrument relating to any of
the Obligations;
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2. any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other amendment or
waiver of or any consent to any departure from the Credit Agreement, any
other Loan Document or any other agreement or instrument relating to any of
the Obligations;
3. any exchange, release or non-perfection of any other collateral, or
any release or amendment or waiver of or consent to departure from any
guaranty, for all or any of the Obligations; or
4. any other circumstances which might otherwise constitute a defense
available to, or a discharge of, any Guarantor in respect of the
Obligations or of this Agreement.
15. RELIANCE. The Guarantor represents and warrants to the Agent, for
the benefit of the Guaranteed Parties, that: (a) the Guarantor has adequate
means to obtain from each Borrower, on a continuing basis, information
concerning such Borrower and such Borrower's financial condition and affairs and
has full and complete access to each Borrower's books and records; (b) the
Guarantor is not relying on any Guaranteed Party, its or their employees, agents
or other representatives, to provide such information, now or in the future; (c)
the Guarantor is executing this Guaranty Agreement freely and deliberately, and
understands the obligations and financial risk undertaken by providing this
Guaranty; (d) the Guarantor has relied solely on the Guarantor's own independent
investigation, appraisal and analysis of each Borrower and each Borrower's
financial condition and affairs in deciding to provide this Guaranty and is
fully aware of the same; and (e) the Guarantor has not depended or relied on any
Guaranteed Party, its or their employees, agents or representatives, for any
information whatsoever concerning any Borrower or any Borrower's financial
condition and affairs or other matters material to the Guarantor's decision to
provide this Guaranty or for any counseling, guidance, or special consideration
or any promise therefor with respect to such decision. The Guarantor agrees that
neither the Agent nor any Lender has any duty or responsibility whatsoever, now
or in the future, to provide to the Guarantor any information concerning any
Borrower or any Borrower's financial condition and affairs, other than as
expressly provided herein, and that, if the Guarantor receives any such
information from the Agent or any Lender, its or their employees, agents or
other representatives, the Guarantor will independently verify the information
and will not rely on the Agent or any Lender, its or their employees, agents or
other representatives, with respect to such information.
16. DEFINITIONS. All terms used but not defined herein shall have the
meaning set forth in the Credit Agreement.
17. ENTIRE AGREEMENT. This Guaranty Agreement, together with the
Credit Agreement and the other Loan Documents, constitutes and expresses the
entire understanding between the parties hereto with respect to the subject
matter hereof, and supersedes all prior agreements and understandings,
inducements, commitments or conditions, express or implied, oral or written,
except as herein contained. The express terms hereof control and supersede any
course of performance or usage of the trade inconsistent with any of the terms
hereof. Neither this Guaranty Agreement nor any portion or provision hereof may
be changed, altered, modified, supplemented, discharged, canceled, terminated,
or amended orally or in any manner other than by an agreement, in writing signed
by the parties hereto.
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18. BINDING AGREEMENT; ASSIGNMENT. This Guaranty Agreement, and the
terms, covenants and conditions hereof, shall be binding upon and inure to the
benefit of the parties hereto, and to their respective successors and assigns,
except that the Guarantor shall not be permitted to assign this Agreement or any
interest herein. All references herein to the Agent shall include any successor
thereof, each Lender and any other obliges from time to time of the Obligations.
19. HEDGING AREEMENTS. All obligations of any Borrower under Hedging
Agreements to any Lender or any affiliate of a Lender shall be deemed to be
Obligations secured hereby (in each case unless otherwise agreed in writing by
such Lender or affiliate of such Lender), and each Lender or affiliate of a
Lender party to any such Hedging Agreement shall be deemed to be a Guaranteed
Party hereunder.
20. SEVERABILITY. In case any Lien, security interest or other right
of any Guaranteed Party or any provision hereof shall be held to be invalid,
illegal or unenforceable, such invalidity, illegality or unenforceability shall
not affect any other Lien, security interest or other right granted hereby or
provision hereof.
21. COUNTERPARTS. This Guaranty Agreement may be executed in any
number of counterparts and all the counterparts taken together shall be deemed
to constitute one and the same instrument.
22. INDEMNIFICATION. Without limitation of Section 11.9 of the Credit
Agreement or any other indemnification provision in any Loan Document, the
Guarantor hereby covenants and agrees to pay, indemnify, and hold the Guaranteed
Parties harmless from and against any and all other out-of-pocket liabilities,
costs, expenses or disbursements of any kind or nature whatsoever arising in
connection with any claim or litigation by any Person resulting from the
execution, delivery, enforcement, performance and administration of this
Guaranty Agreement or the Loan Documents, or the transactions contemplated
hereby or thereby, or in any respect relating to the Collateral or any
transaction pursuant to which the Guarantor has incurred any Obligations (all
the foregoing, collectively, the "indemnified liabilities"); provided, however,
that the Guarantor shall have no obligation hereunder with respect to
indemnified liabilities directly or primarily arising from the willful
misconduct or gross negligence of the Agent or any Guaranteed Party. The
agreements in this subsection shall survive repayment of all Obligations,
termination or expiration of this Guaranty Agreement and occurrence of the
Stated Termination Date.
23. TERMINATION. This Guaranty Agreement shall terminate on the Stated
Termination Date, provided that the Loans and all other Obligations shall have
been paid in full.
24. REMEDIES CUMULATIVE. All remedies hereunder are cumulative and are
not exclusive of any other rights and remedies of the Agent provided by law or
under the Credit Agreement, the other Loan Documents, or other applicable
agreements or instruments. The making of the Loans to the Borrowers pursuant to
the Credit Agreement and the extension of the Revolving Credit Facility to the
Borrowers pursuant to the Credit Agreement shall be conclusively presumed to
have been made or extended, respectively, in reliance upon the Guarantor's
guaranty of the Guarantor's obligations pursuant to the terms hereof. No failure
or
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delay by the Agent or any Lender in exercising any right or power hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or
the exercise of any other right or power.
25. NOTICES. Any notice required or permitted hereunder shall be
given, (a) with respect to the Guarantor, at the address of the Borrowers
indicated in Section 11.2 of the Credit Agreement and (b) with respect to the
Agent or a Lender, at the Agent's address indicated in Section 11.2 of the
Credit Agreement. All such notices shall be given and shall be effective as
provided in Section 11.2 of the Credit Agreement.
26. GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK.
(b) THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND CONSENTS THAT
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND
THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY STATE OR FEDERAL
COURT SITTING IN THE XXXXXX XX XXX XXXX, XXXXX XX XXX XXXX, XXXXXX XXXXXX OF
AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS AGREEMENT, EXPRESSLY WAIVES
ANY OBJECTION THAT IT MAY HAVE NOW OR HEREAFTER TO THE LAYING OF THE VENUE OR TO
THE JURISDICTION OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND IRREVOCABLY SUBMITS
GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH
SUIT, ACTION OR PROCEEDING.
(c) THE GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE MADE BY PERSONAL
SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL PROCESS IN ANY
SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR CERTIFIED MAIL (POSTAGE
PREPAID) TO THE GUARANTOR AT THE ADDRESS SET FORTH BELOW, OR BY ANY OTHER METHOD
OF SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW
YORK.
TO GUARANTOR
C/O AIRCASTLE ADVISOR LLC
000 XXXXX XXXXXXXX XXXXX - XXXXX XXXXX
XXXXXXXX, XX 00000
ATTN: LEASE MANAGEMENT
E-MAIL: XXXXXXXXXXXXXXX@XXXXXXXXXXXX.XXX
FACSIMILE NUMBER: (000) 000-0000
CONFIRMATION NUMBER: (000) 000-0000
17
(d) NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF SHALL PRECLUDE THE
AGENT OR ANY LENDER FROM BRINGING ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS IN THE COURTS OF ANY
OTHER JURISDICTION. TO THE EXTENT PERMITTED BY THE APPLICABLE LAWS OF ANY SUCH
JURISDICTION, THE GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
ANY SUCH COURT AND EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR
PROCEEDING, THE JURISDICTION OF ANY OTHER COURT OR COURTS WHICH NOW OR
HEREAFTER, BY REASON OF ITS PRESENT OR FUTURE DOMICILE, OR OTHERWISE, MAY BE
AVAILABLE TO IT.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR REMEDIES
UNDER OR RELATED TO THIS AGREEMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION WITH
THE FOREGOING, THE GUARANTOR HEREBY AGREES, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT
AND NOT BEFORE A JURY AND THE GUARANTOR HEREBY WAIVES, TO THE EXTENT PERMITTED
BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY HAVE THAT EACH ACTION OR PROCEEDING
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
[SIGNATURE PAGE FOLLOWS.]
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IN WITNESS WHEREOF, the parties have duly executed this Guaranty
Agreement on the day and year first written above.
PARENT GUARANTOR:
AIRCASTLE INVESTMENT LIMITED, as Guarantor
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
----------------------------------
Title: CFO
---------------------------------
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AGENT:
JPMORGAN CHASE BANK, N.A.,
as Agent for the Lenders
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
----------------------------------
Title: Managing Director
---------------------------------
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