EXHIBIT 4.g
Bankmont Financial Corp.
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BANKMONT FINANCIAL CORP.
AMENDED AND RESTATED GUARANTY
Dated July 7, 1998
To Each of the Institutions
Listed on Schedule A
Attached Hereto (the "Addressees"):
Ladies and Gentlemen:
Reference is hereby made to the Participation Agreement (Federal
Express Corporation Trust No. N590FE) dated as of May 1, 1998, as amended and
restated as of June 15, 1998 among BMO Leasing (U.S.), Inc., as Owner
Participant, Federal Express Corporation, as Lessee, Xxxxxx Guaranty Trust
Company of New York, as Original Loan Participant, State Street Bank and
Trust Company of Connecticut, National Association, not in its individual
capacity, except as expressly set forth therein, but solely as Owner Trustee,
First Security Bank, National Association, as Indenture Trustee, First
Security Bank, National Association, as Subordination Agent and First
Security Bank, National Association, as Pass Through Trustee (the
"Participation Agreement"). Capitalized terms used herein without definition
and which are defined in Schedule II to the Participation Agreement are used
herein with the respective meanings given such terms in Schedule II to the
Participation Agreement.
WHEREAS, the Owner Participant is a direct wholly-owned subsidiary
of Bankmont Financial Corp. (together with its successors and assigns, the
"Guarantor"), and the Guarantor has determined that the delivery of the
Guaranty dated May 27, 1998, as amended and restated on the date hereof (this
"Guaranty") and consummation of the transactions contemplated by the
Participation Agreement and the other Operative Agreements are in furtherance
of its interest; and
WHEREAS, it is a condition to the effectiveness of the
transactions contemplated by the Participation Agreement that the Guarantor
execute and deliver this Guaranty;
NOW, THEREFORE, in consideration of the foregoing, and other good
and valuable consideration, the receipt of which is hereby acknowledged, the
Guarantor hereby agrees as follows:
1. Representations and Warranties. The Guarantor is duly
incorporated and validly existing in good standing under the laws of the State
of Delaware. The execution, delivery and performance of this Guaranty are
within the Guarantor's corporate powers, and this Guaranty constitutes a
legal, valid and binding obligation of the Guarantor, enforceable against the
Guarantor in accordance with its terms except as such enforceability may be
limited by insolvency, reorganization, receivership, liquidation (in each case
relating to any insolvency, reorganization, receivership or liquidation of the
Guarantor) or similar laws and equitable principles affecting the rights of
creditors generally. The execution, delivery and performance of this Guaranty
does not and will not conflict with or result in any violation of or default
under any provisions of the Certificate of Incorporation or By-Laws of the
Guarantor or any instrument, law, rule or regulation applicable to the
Guarantor, does not and will not result in violation of any judgment or order
applicable to the Guarantor or require the creation or imposition of any Lien
on any of the properties or revenues of the Guarantor pursuant to any
requirement of law or contractual obligation of Guarantor and does not and
will not require consent, approval or authorization of, or registration or
filing with, any governmental authority. As of the date hereof, there are no
pending or, to the knowledge of the Guarantor, threatened actions or
proceedings before any court or administrative agency or arbiter that would
adversely affect the ability of the Guarantor to perform its obligations
hereunder.
2. Guaranty. The Guarantor hereby unconditionally and
irrevocably guarantees to each Addressee, as primary obligor and not merely as
surety, (A) the due and punctual performance of all obligations of the Owner
Participant arising under or pursuant to the Operative Agreements and (B) the
due and punctual payment when due of any and all sums which are now or
thereafter imposed on or payable by the Owner Participant pursuant to any
provisions of the Operative Agreements, including, without limitation, any
amount for which the Owner Participant is or may at any time become liable by
reason of any breach of or failure to perform or observe, or any other
non-compliance with, any covenant, condition or agreement or other obligation
to be performed by the Owner Participant under any of the Operative Agreements
or any falsity of any representation or warranty of the Owner Participant in
any of the Operative Agreements (the performance and payment obligations
described in this sentence above being the "Obligations"). Without limiting
the generality of the foregoing, the Guarantor's liability shall extend to all
obligations and payments which constitute part of the Obligations and would be
owed by the Owner Participant under the Operative Agreements but for the fact
that they are unenforceable or not allowable due to the existence of a
bankruptcy, reorganization or similar proceeding involving the Owner
Participant.
3. Guaranty Absolute. The Guarantor guarantees that the
Obligations will be performed and paid strictly in accordance with the terms
of the Operative Agreements, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any Addressee, the Guarantor or the Owner Participant with respect
thereto. The Obligations of the Guarantor under this Guaranty are independent
of the Obligations, and a separate action or actions may be brought and
prosecuted against the Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against the Owner Participant or whether the
Owner Participant is joined in any such action or actions. The liability of
the Guarantor under this Guaranty shall be absolute and unconditional
irrespective of:
(i) any lack of validity or enforceability of the
Operative Agreements or any term thereof or any other agreement or instrument
relating thereto;
(ii) any change in the time, manner or place of performance
or 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 departure from the Operative
Agreements;
(iii) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Obligations;
(iv) any manner of application of collateral, or proceeds
thereof, to all or any of the Obligations or any manner of sale or other
disposition of any collateral for all or any of the Obligations or any other
assets of the Owner Participant or the Guarantor;
(v) any change, restructuring or termination of the
corporate structure or existence of the Owner Participant or the Guarantor or
any insolvency, bankruptcy, reorganization or other similar proceedings
affecting the Owner Participant or its assets or any resulting release or
discharge of any of the Obligations;
(vi) any other circumstance which might otherwise
constitute a defense available to, or a discharge of, the Owner Participant or
a guarantor thereof (other than the defense by the Guarantor of payment or
performance by the Guarantor of all the Obligations);
(vii) any extension, indulgence or renewal with respect to
any obligation of the Owner Participant under any of the Operative Agreements;
(viii) any modification of, or amendment or supplement to,
any such agreement;
(ix) any furnishing or acceptance of additional security or
any release of any security; or
(x) any waiver, compromise, consent or other action or
inaction, or any exercise or non-exercise of any right, remedy or power with
respect to the Owner Participant.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Obligations is rescinded or must
otherwise be returned by any Addressee upon the insolvency, bankruptcy or
reorganization of the Owner Participant or otherwise, all as though such
payment had not been made at such time.
4. Waiver. The Guarantor hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the
Obligations and this Guaranty and any requirement that any Addressee protect,
secure, perfect or insure any security interest or lien or any property
subject thereto or exhaust any right or take any action against the Owner
Participant or any other person or entity or any collateral. This is a
guaranty of payment and performance, not collection. The obligations of the
Guarantor hereunder are absolute, present and continuing obligations which are
not conditional upon the institution of suit against or the exercise of any
remedies against the Owner Participant, or any attempt to foreclose or realize
upon any security for obligations of the Owner Participant or the taking of
any other action with respect to the Owner Participant.
5. Subrogation. The Guarantor will not exercise any rights
which it may acquire by way of subrogation under this Guaranty, by any
performance or payment made hereunder or otherwise, until all the Obligations
and all other amounts payable under this Guaranty shall have been paid in
full. If any amount shall be paid to the Guarantor on account of such
subrogation rights at any time prior to the later of the payment in full of
the Obligations and all other amounts payable under this Guaranty, such amount
shall be held in trust for the benefit of the Addressees and shall forthwith
be paid to the Addressees to be credited and applied upon the Obligations,
whether matured or unmatured, in accordance with the terms of the Operative
Agreements or to be held by the Addressees as collateral security for any
Obligations thereafter existing. If (i) the Guarantor shall make payment to
the Addressees of all or any part of the Obligations and (ii) all the
Obligations and all other amounts payable under this Guaranty shall be
satisfied or paid in full, the Addressees will, at the Guarantor's request,
execute and deliver to the Guarantor appropriate documents, without recourse
and without representation or warranty, necessary to evidence the transfer by
subrogation to Guarantor of an interest in the Obligations resulting from such
payment by Guarantor.
6. Amendments, Etc. No amendment or waiver of any provision of
this Guaranty, and no consent to any departure by the Guarantor herefrom,
shall in any event be effective unless the same be in writing and signed by
each Addressee, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
7. Addresses for Notices. All notices and other communications
provided for hereunder shall be in writing (including telecopier information)
and mailed, telecopied or delivered to it, if to the Guarantor, at its address
000 X. XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, with a copy to Counsel; any
Addressee, at its address and in the manner specified in the Participation
Agreement; or, as to either party, at such other address as shall be
designated by such party in a written notice to the other party. All such
notices and other communications shall, when mailed or telecopied, be
effective when deposited in the mails or telecopied.
8. No Waiver; Remedies. No failure on the part of any
Addressee to exercise, and no delay in exercising, any right hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right hereunder preclude any other or further exercise thereof or the exercise
of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
9. Miscellaneous. This Guaranty is a continuing guaranty and
shall (i) remain in full force and effect until the payment or satisfaction in
full of the Obligations and the payment of all other amounts payable under
this Guaranty or the date of the transfer of all of the Owner Participant's
interest in the Trust Estate and the Operative Agreements to a transferee
pursuant to Article 5 of the Trust Agreement upon satisfaction of all the
conditions set forth in Article 5 of the Trust Agreement; (ii) are binding
upon the Guarantor, its successors and assigns; and (iii) inure to the benefit
of, and be enforceable by, any Addressee and its successors, transferees and
assigns. Without limiting the generality of the foregoing clause (iii), any
Addressee may assign or otherwise transfer all or any portion of its rights
and obligations under the Operative Agreements in accordance therewith to any
other person or entity, and such other person or entity shall thereupon become
vested with all the benefits in respect thereof granted to any Addressee
herein or otherwise.
10. Governing Law. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of New York.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
duly executed and delivered by its officer thereunto duly authorized as of the
date first above written.
BANKMONT FINANCIAL CORP.
By____________________________________
Xxxxxx X. Xxxxxx
Treasurer and Chief Financial Officer
SCHEDULE A TO
GUARANTY
Owner Participant
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BMO Leasing (U.S.), Inc.
Lessee
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Federal Express Corporation
Indenture Trustee, Subordination Agent
and Pass Through Trustee
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First Security Bank, National Association
Owner Trustee
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State Street Bank and Trust Company of
Connecticut, National Association
Owner Participant Guarantor
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Bankmont Financial Corp.
Agent and Original Loan Participant
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Xxxxxx Guaranty Trust Company of New York
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OWNER PARTICIPANT GUARANTY
(FEDERAL EXPRESS CORPORATION TRUST NO. N675FE)
Dated June 18, 1998
Amended and Restated on July 7, 1998
from
XXXXXX XXXXXX CAPITAL CORPORATION,
as Owner Participant Guarantor
to
FEDERAL EXPRESS CORPORATION,
as Lessee
STATE STREET BANK AND TRUST COMPANY OF CONNECTICUT,
NATIONAL ASSOCIATION,
Not in Its Individual Capacity,
but Solely as Owner Trustee,
as Owner Trustee
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Indenture Trustee
and
FIRST SECURITY BANK, NATIONAL ASSOCIATION,
as Pass Through Trustee
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TABLE OF CONTENTS
Page
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Section 1. Definitions.......................................... 1
Section 2. Guaranty............................................. 1
Section 3. No Subrogation....................................... 2
Section 4. Amendments with Respect to the Obligations; Waiver of
Rights............................................... 2
Section 5. Guaranty Absolute and Unconditional.................. 3
Section 6. Reinstatement........................................ 4
Section 7. Payments............................................. 5
Section 8. Representations and Warranties....................... 5
Section 9. Severability......................................... 6
Section 10. Jurisdiction; Waiver of Jury Trial, Etc.............. 6
Section 11. Section Headings..................................... 6
Section 12. No Waiver; Cumulative Remedies....................... 6
Section 13. Amendments and Waivers............................... 7
Section 14. Successors and Assigns............................... 7
Section 15. GOVERNING LAW........................................ 7
Section 16. Notices.............................................. 7
OWNER PARTICIPANT GUARANTY
(FEDERAL EXPRESS CORPORATION TRUST NO. N675FE)
OWNER PARTICIPANT GUARANTY (FEDERAL EXPRESS CORPORATION TRUST
NO. N675FE), dated June 18, 1998, as amended and restated on July 7, 1998
(this "Guaranty") by XXXXXX XXXXXX CAPITAL CORPORATION, a Delaware corporation
(the "Guarantor"), to State Street Bank and Trust Company of Connecticut,
National Association, in its individual capacity and as Owner Trustee, First
Security Bank, National Association, as Indenture Trustee and Pass Through
Trustee, and Federal Express Corporation, as Lessee (collectively, together
with their successors and assigns and the holders from time to time of the
Certificates, the "Beneficiaries").
W I T N E S S E T H :
WHEREAS, PMCC LEASING CORPORATION, a Delaware corporation (the
"Owner Participant"), is party to the Participation Agreement (Federal Express
Corporation Trust No. N675FE), dated as of June 1, 1998, as amended and
restated as of June 15, 1998 (the "Participation Agreement"), among Federal
Express Corporation, as Lessee, the Owner Participant, as Owner Participant,
Xxxxxx Guaranty Trust Company of New York, as Loan Participant, State Street
Bank and Trust Company of Connecticut, National Association, not in its
individual, except as otherwise stated therein, but solely as Owner Trustee,
First Security Bank, National Association, not in its individual, except as
otherwise stated therein, but solely as Indenture Trustee, First Security
Bank, National Association, not in its individual, except as otherwise stated
therein, but solely as Pass Through Trustee and First Security Bank, National
Association, as Subordination Agent; and
WHEREAS, in order to induce the Beneficiaries to enter into the
Participation Agreement and the other Operative Agreements, the Guarantor
desires to enter into this Guaranty to guarantee the Owner Participant's
performance and compliance with the covenants, agreements, obligations, terms
and conditions of or applicable to the Owner Participant under and pursuant to
the Operative Agreements.
NOW, THEREFORE, in consideration of the premises set forth
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Guarantor hereby covenants and agrees as
follows:
Section 1. Definitions. Capitalized terms used herein without
definition shall have the respective meanings assigned thereto in the
Participation Agreement.
Section 2. Guaranty. The Guarantor hereby unconditionally and
irrevocably guarantees, as primary obligor and not merely surety, to the
Beneficiaries the prompt and complete payment by the Owner Participant when
due of all payment obligations of the Owner Participant under the Operative
Agreements without offset or deduction and the timely performance of all other
obligations of the Owner Participant thereunder (such payment and other
obligations, the "Obligations"), and the Guarantor further agrees to pay any
and all expenses (including, without limitation, reasonable fees and expenses
of counsel) that may be paid or incurred by the Beneficiaries in enforcing any
rights with respect to, or collecting, any or all of the Obligations and/or
enforcing any rights with respect to, or collecting against, the Guarantor
under this Guaranty.
The Guarantor will not exercise any rights that it may now or
hereafter acquire against Owner Participant that arise from the existence,
payment, performance or enforcement of the Guarantor's Obligations under this
Guaranty or the Operative Agreements, including, without limitation, any right
of subrogation, reimbursement, exoneration, contribution or indemnification
and any right to participate in any claim or remedy of any Beneficiary against
Owner Participant or any collateral, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from Owner Participant,
directly or indirectly, in cash or other property or by set-off or in any
other manner, payment or security on account of such claim, remedy or right,
unless and until all of the Obligations have been performed in full and all
other amounts payable under this Guaranty shall have been paid in full in
cash. If any amount shall be paid to the Guarantor in violation of the
preceding sentence at any time prior to the final payment in full in cash of
the Obligations and all other amounts payable under this Guaranty, such amount
shall be held in trust for the benefit of any Beneficiary and shall forthwith
be paid to such Beneficiary to be credited and applied to the Obligations and
all other amounts payable under this Guaranty, whether matured or unmatured,
in accordance with the terms of the Operative Agreements, or to be held as
collateral for any Obligations or other amounts payable under this Guaranty
thereafter arising.
Section 3. No Subrogation. Notwithstanding anything to the
contrary in this Guaranty, the Guarantor hereby agrees not to assert any
rights which may have arisen in connection with this Guaranty to be subrogated
to any of the rights (whether contractual, under the Bankruptcy Code, under
common law or otherwise) of any Beneficiary against the Owner Participant for
the payment of the Obligations until all of the Obligations shall have been
satisfied by payment and performance in full.
Section 4. Amendments with Respect to the Obligations; Waiver
of Rights. The Guarantor shall remain fully obligated hereunder
notwithstanding that, without any reservation of rights against the Guarantor
and without notice to or further assent by the Guarantor, any demand for
payment or performance of any of the Obligations made by any Beneficiary may
be rescinded by such party and any of the obligations continued, and the
Obligations, may, from time to time, in whole or part, be renewed, extended,
amended, modified, accelerated, compromised, waived, surrendered or released
by any Beneficiary and any Operative Agreement may be amended, modified,
supplemented or terminated, in whole or in part, in accordance with the
provisions thereof from time to time. When making any demand hereunder
against the Guarantor, a Beneficiary may, but shall be under no obligation to,
make a similar demand on the Owner Participant, and any failure by a
Beneficiary to make any such demand or to collect any payments from the Owner
Participant or any release of the Owner Participant shall not relieve the
Guarantor of its obligations or liabilities hereunder, and shall not impair or
affect the rights and remedies, express or implied, or as a matter of law, of
any Beneficiary against the Guarantor. For the purposes hereof, "demand"
shall include the commencement and continuance of any legal proceedings. The
Guarantor represents and warrants that it is the parent of the Owner
Participant, and agrees that its obligations hereunder shall continue
unimpaired, even if the Guarantor is no longer an Affiliate of the Owner
Participant.
Section 5. Guaranty Absolute and Unconditional. The Guarantor
guarantees that the Obligations will be paid and performed strictly in
accordance with the terms of the Operative Agreements, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting
any such terms or the rights of any Beneficiary with respect thereto. The
obligations of the Guarantor under this Guaranty are independent of the
Obligations or any other obligations of any other party, and a separate action
or actions may be brought and prosecuted against the Guarantor to enforce this
Guaranty, irrespective of whether the Owner Participant or any other party is
joined in any such action or actions. The 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 any Beneficiary 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, or
renewed, extended, amended or waived, in reliance upon this Guaranty; and all
dealings between the Owner Participant or the Guarantor and any Beneficiary
shall likewise be conclusively presumed to have been had or consummated in
reliance upon this Guaranty. The Guarantor waives, to the fullest extent
permitted by applicable law, diligence, presentment, promptness, protest,
mitigation of damages by the Beneficiaries demand for payment and notice of
default or nonpayment to or upon the Owner Participant or the Guarantor with
respect to the Obligations. The Guarantor further waives any right to revoke
this Guaranty, and acknowledges that this Guaranty is continuing in nature and
applies to all Obligations, whether existing now or in the future. The
Guarantor understands and agrees that, to the fullest extent permitted by
applicable law, this Guaranty shall be construed as a continuing, absolute and
unconditional guaranty of payment and performance (and not merely of
collectibility) without regard to:
(a) the validity, regularity or enforceability of any Operative
Agreement, or any of the Obligations at any time or from time to time held
by any Beneficiary;
(b) any defense, set-off, rebate, adjustment, withholding, deduction
or counterclaim (other than a defense of payment or performance) that may
at any time be available to or be asserted by the Owner Participant against
any Beneficiary or any agreement or instrument relating thereto or;
(c) 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 obligations of
any other party under the Operative Agreements, or any other amendment or
waiver of or any consent to departure from the other Operative Agreements;
(d) any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Obligations;
(e) any change, restructuring or termination of the corporate
structure or existence of the Guarantor or the Owner Participant or any of
the Affiliates of either;
(f) any defect in the title, condition, design, operation or
fitness of, or any interference with the operation, use or possession of,
the Aircraft;
(g) any failure to establish, perfect or preserve title to or any
security interest in or to the Aircraft or any other collateral security
for the Obligations; or
(h) any other circumstance whatsoever or any existence of or
reliance on any representation by any Beneficiary that might otherwise
constitute a defense available to, or a discharge of, the Guarantor or any
other guarantor or surety.
When pursuing its rights and remedies hereunder against the
Guarantor, any Beneficiary may, but shall be under no obligation to, pursue
such rights and remedies as it may have against the Owner Participant for the
Obligations, and any failure by any Beneficiary to pursue such other rights or
remedies or to collect any payments from the Owner Participant, or any release
of the Owner Participant, shall not, to the fullest extent permitted by
applicable law, relieve the Guarantor of any liability hereunder, and shall not
impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of any Beneficiary against the Guarantor. This
Guaranty is a continuing guaranty and shall remain in full force and effect
until the earlier of (x) the date that all of the Obligations are satisfied by
payment and performance in full and (y) the date that all right, title and
interest of the Owner Participant shall have been transferred to a Person
meeting the requirements of Section 7.03(d) of the Participation Agreement in
accordance with said section; provided that this Guaranty shall remain in full
force and effect with respect to obligations relating to the period prior to
such transfer.
Section 6. Reinstatement. 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 any Beneficiary upon the insolvency, bankruptcy
dissolution, liquidation or reorganization of the Owner Participant or the
Guarantor, or upon or as a result of the appointment of a receiver, intervenor
or conservator of, or trustee or similar officer for, the Owner Participant or
the Guarantor or any substantial part of its property, or otherwise, all as
though such payments had not been made and the Guarantor agrees that it will
indemnify any such Beneficiary on demand for all reasonable costs and expenses
(including, without limitation, reasonable fees and expenses of counsel) by
such Beneficiary in connection with such rescission or restoration.
Section 7. Payments. The Guarantor hereby guarantees that
payments hereunder shall be paid without set-off, counterclaim, deduction,
rebate, adjustment or withholding, and shall be made in U.S. Dollars in
immediately available funds.
Section 8. Representations and Warranties. The Guarantor
hereby represents and warrants that:
(a) the Guarantor is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
incorporation and the Owner Participant is currently a subsidiary of the
Guarantor;
(b) the Guarantor has the power and authority and the legal right
to execute and deliver, and to perform its obligations under, this
Guaranty, and has taken all necessary corporate action to authorize its
execution, delivery and performance of this Guaranty;
(c) this Guaranty constitutes a legal, valid and binding obligation
of the Guarantor enforceable in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of creditors' rights
generally;
(d) the execution, delivery and performance of this Guaranty will
not violate any provision of any requirement of law or contractual
obligation of the Guarantor or any of its constitutive documents;
(e) no consent or authorization of, filing with, or other act by or
in respect of, any arbitrator or governmental authority and no consent of
any other person is required in connection with the execution, delivery,
performance, validity or enforceability of this Guaranty;
(f) the Guarantor is a corporation acting for its own account
having a combined capital and surplus (or, if applicable, consolidated
tangible net worth or its equivalent) of not less than $75,000,000;
(g) there are no conditions precedent to the effectiveness of this
Guaranty that have not been satisfied or waived; and
(h) the Guarantor has, independently and without reliance upon any
Beneficiary and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Guaranty, and the Guarantor has established adequate means of obtaining
from Owner Participant on a continuing basis information pertaining to, and
is now and on a continuing basis will be completely familiar with, the
financial condition, operations, properties and prospects of Owner
Participant.
Section 9. Severability. Any provision of this Guaranty that
is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.
Section 10. Jurisdiction; Waiver of Jury Trial, Etc.
(a) The Guarantor hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or federal court of the United States of America sitting
in New York, New York, and any appellate court from any thereof, in any action
or proceeding arising out of or relating to this Guaranty or any Operative
Agreement to which it is or is to be a party, or for recognition or
enforcement of any judgment, and the Guarantor hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or, to
the extent permitted by law, in such federal court. The Guarantor agrees that
a final judgment in any such action or proceeding shall be conclusive and may
be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Guaranty shall affect any right that
any party may otherwise have to bring any action or proceeding relating to
this Guaranty or any Operative Agreement to which it is or is to be a party in
the courts of any jurisdiction.
(b) The Guarantor irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Guaranty or any Operative
Agreement to which it is or is to be a party in any New York State or federal
court. The Guarantor hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
Section 11. Section Headings. The Section headings used in this
Guaranty are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation
hereof.
Section 12. No Waiver; Cumulative Remedies. No Beneficiary
shall by any act (except by a written instrument pursuant to Section 13
hereof), delay, indulgence, omission or otherwise be deemed to have waived any
right or remedy hereunder or to have acquiesced in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of any Beneficiary, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right power or privilege. A
waiver by a Beneficiary of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy that such Beneficiary
would otherwise have on any future occasion. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any rights or remedies provided by law.
Section 13. Amendments and Waivers. None of the terms or
provisions of this Guaranty may be waived, amended or supplemented or
otherwise modified except by a written instrument executed by the Guarantor
and each Beneficiary.
Section 14. Successors and Assigns. This Guaranty shall be
binding upon the successors and assigns of the Guarantor and shall inure to
the benefit of the Beneficiaries and their respective successors and permitted
assigns but Guarantor may not assign this Guaranty without prior written
consent of the Beneficiaries except to an assignee making, as of the date of
such assignment, (i) representations and warranties substantially similar to
those contained in Section 8 hereof and (ii) a representation that it is a
U.S. citizen, unless, in the case of the preceding clause (ii) any of (a) the
aircraft is not then registered in the United States nor contemplated to be so
registered or (b) a voting trust or similar arrangement reasonably
satisfactory to the Beneficiaries is in place with respect to such
registration or (c) it is not necessary for the Guarantor to be a U.S. citizen
in order for the aircraft to remain registered in the United States.
Section 15. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY
AND BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK.
Section 16. Notices. All notices, requests and demands to or
upon the Guarantor or any Beneficiary to be effective shall be in writing and,
unless otherwise expressly provided herein, shall be deemed to have been duly
given or made, when delivered by hand or by mail, upon receipt, or, when
delivered by facsimile transmission, upon being sent and confirmed, addressed
(a) in the case of the Guarantor, to the Guarantor at its office at 000 Xxxxx
Xxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, Attention: Vice President Leasing
with a copy to Director, Portfolio Administration, telephone (000) 000-0000,
facsimile (000) 000-0000, and (b) in the case of any Beneficiary, to such
Beneficiary at the address provided for such Beneficiary in or pursuant to the
Participation Agreement.
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.
XXXXXX XXXXXX CAPITAL CORPORATION
By:_______________________________________
Name: Xxxx X. Xxxxxxxx
Title: Director, Structured Finance
