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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) Each
Guar
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