EXECUTION COPY
Exhibit 10.3
GUARANTY AGREEMENT
THIS GUARANTY
AGREEMENT (this
“Guaranty Agreement” or this “Guaranty”),
dated as of December 15, 2006, is made by AIRCASTLE LIMITED, an
exempted company organized and existing under the laws of Bermuda,
AIRCASTLE ADVISOR LLC, an exempted company organized and existing
under the laws of Bermuda, AIRCASTLE BERMUDA SECURITIES LIMITED, an
exempted company organized and existing under the laws of Bermuda
and AIRCASTLE IRELAND HOLDINGS LIMITED, a limited liability company
organized in Ireland (each, a “Guarantor” and
collectively, the “Guarantors”) 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).
W I T N E S S E T
H :
WHEREAS , the Agent and the Lenders have agreed to
provide a revolving credit facility to AIRCASTLE HOLDING
CORPORATION LIMITED, an exempted company organized and existing
under the laws of Bermuda (“AHCL”) and AIRCASTLE
IRELAND HOLDING LIMITED (“AIHL” and, together with
AHCL, the “Borrowers”) pursuant to that certain Credit
Agreement, dated as of December 15, 2006 (as may be further
amended, supplemented or otherwise modified from time to time, the
“Credit Agreement”), made by and among the Borrowers,
the Agent and the Lenders; and
WHEREAS , the Guarantors will materially benefit from
the Loans to be made under the Credit Agreement and the Guarantors
are 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 the Borrowers to cause the Guarantors 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, each 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, each Guarantor hereby agrees
as follows:
1.
Guaranty . Each Guarantor hereby jointly
and severally, 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 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 any Borrower to the Agent (acting in any capacity)
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, this Agreement, 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 herewith or 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 any Borrower pursuant
thereto) or otherwise. Anything herein or in any other Loan
Document to the contrary notwithstanding, the maximum liability of
any Guarantor hereunder and under the other Loan Documents shall in
no event exceed the amount which can be guaranteed by such
Guarantor under applicable federal and state laws relating to the
insolvency of debtors. The Guarantors agree that the Obligations
may at any time and from time to time exceed the amount of the
liability of any or all of the Guarantors 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. Each 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 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 Guarantors or any of them, 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 each 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.
3.
Currency and Funds of Payment; Withholding .
Each 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 Guarantors 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 Guarantors. All payments made or to be
made by any 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 Guarantors 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 Guarantors or any of them by any of the
Guaranteed Parties, whether or not suit has been commenced against
any Borrower, any other Guarantor or 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 . Each 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 such Guarantor or any other
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 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
Guarantors. If at any time hereafter any Guaranteed Party employs
counsel for advice or other representation to enforce any
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
Guarantors to the Agent, for the benefit of the Guaranteed Parties,
on demand.
(a) &nbs
