Exhibit 10.10
EXECUTION COPY
PARENT GUARANTY
This GUARANTY (this “
Guaranty ”), dated as of November 22, 2005, by and
between Navtech, Inc., a Delaware corporation (the “
Guarantor ”), and ABRY Mezzanine Partners, L.P., a
Delaware limited partnership, individually and as agent (in such
capacity, “ Agent ”) for itself and the other
Obligees (as that term is defined herein).
W I T N E S S E T
H:
WHEREAS, Navtech Systems Support
Inc., a company incorporated under the laws of Ontario (the “
Company ”), Agent and the other Purchasers which are
signatories thereto are parties to that certain Note Purchase
Agreement dated as of the date hereof (as amended, restated,
supplemented or otherwise modified from time to time, the “
Purchase Agreement ”);
WHEREAS, the Guarantor will realize
significant economic benefits in connection with the consummation
of the transactions contemplated by the Purchase Agreement and the
other Transaction Agreements; and
WHEREAS, it is a condition precedent
to the consummation of the transactions contemplated by the
Purchase Agreement that the Guarantor executes this
Guaranty.
NOW, THEREFORE, in consideration of
the premises and the promises contained herein and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as
follows:
1.
DEFINITIONS
.
Capitalized terms used herein shall
have the meanings assigned to them in the Purchase Agreement,
unless otherwise defined herein.
References to this
“Guaranty” shall mean this Guaranty, including all
amendments, modifications and supplements and any annexes, exhibits
and schedules to any of the foregoing, and shall refer to this
Guaranty as the same may be in effect at the time such reference
becomes operative.
“ Obligee ” means
the Agent and any holder of a Note and their respective successors,
transferees, endorsees and assigns.
“ Subsidiary Guarantor
” means each Subsidiary that is or becomes party to the
Subsidiary Guaranty after the date hereof.
2.
THE GUARANTY
.
2.1
Guaranty of
Guaranteed Obligations . The Guarantor hereby
unconditionally guarantees to the Obligees, the prompt payment
(whether at stated maturity, by acceleration or otherwise) and
performance of the Company’s and each Subsidiary
Guarantor’s obligations as and when due and owing to the
Obligees under and in accordance with the Transaction
Agreements (hereinafter, the
“ Guaranteed Obligations ”). The Guarantor
agrees that this Guaranty is a guaranty of payment and performance
and not of collection, and that its obligations under this Guaranty
shall be primary, absolute and unconditional, irrespective of, and
unaffected by, to the fullest extent permitted by Law:
(a)
the genuineness,
validity, regularity, enforceability or any future amendment of, or
change in this Guaranty (other than amendments or changes made to
this Guaranty in accordance with the terms hereof), any other
Transaction Agreement or any other agreement, document or
instrument to which the Guarantor, Company or any Subsidiary
Guarantor is or may become a party in connection with the
Transaction Agreements or the transactions contemplated thereby, or
any amendment or change in any of the foregoing made in accordance
with the terms thereof;
(b)
the absence of
any action to enforce this Guaranty or any other Transaction
Agreement or the waiver or consent by Agent and/or any other
Obligees with respect to any of the provisions hereof (except to
the extent of such waiver or consent) or thereof;
(c)
the existence,
value or condition of, or failure to perfect its Lien against any
collateral for the Guaranteed Obligations or any action, or the
absence of any action, by Agent in respect thereof (including,
without limitation, the release of any such security);
(d)
the insolvency of
any member of the Company Group; or
(e)
any other action
or circumstances which might otherwise constitute a legal or
equitable discharge or defense of a surety or
guarantor;
it being agreed by the Guarantor that its
obligations under this Guaranty shall not be discharged until the
date upon which each of the Company and each Subsidiary Guarantor
has performed in full all of its obligations arising pursuant to
the Transaction Agreements in accordance with the terms thereof
(the “ Termination Date ”). The Guarantor
shall be regarded, and shall be in the same position, as a primary
obligor and not as a surety. The Guarantor agrees that any
notice or directive given at any time to Agent that is inconsistent
with the waiver in Section 2.1(b) shall be null and void and
may be ignored by Agent and Obligees, and, in addition, may not be
pleaded or introduced as evidence in any litigation relating to
this Guaranty for the reason that such pleading or introduction
would be at variance with the written terms of this Guaranty,
unless Agent and Obligees have specifically agreed otherwise in
writing. It is agreed among the Guarantor, Agent and Obligees
that the foregoing waivers are of the essence of the transactions
contemplated by the Transaction Agreements and that, but for this
Guaranty and such waivers, Obligees would decline to enter into the
Transaction Agreements.
2.2
Demand by
Agent or Obligees . In addition to the
terms of the Guaranty set forth in Section 2.1 hereof, and
in no manner imposing any limitation on such terms, it is expressly
understood and agreed that, if for any reason the Company shall
fail or be unable duly and punctually to pay any of the Guaranteed
Obligations at any time, the Guarantor hereby agrees to pay the
full amount of such Guaranteed Obligations immediately upon
demand. Payment by the Guarantor shall be made to Agent for
the ratable benefit of the Obligees in immediately available
Federal funds to an account designated by Agent or at the address
set forth in Section 6.4 for the
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giving of notice to Agent or
at any other address that may be specified in writing from time to
time by Agent, and shall be forthwith credited and applied to the
Guaranteed Obligations.
2.3
Enforcement of
Guaranty . In no event shall
Agent have any obligation (although it is entitled, at its option)
to proceed against the Company or any other member of the Company
Group before seeking satisfaction from any or all Subsidiary
Guarantors, and Agent may proceed, prior or subsequent to, or
simultaneously with, the enforcement of Agent’s rights
hereunder, to exercise any right or remedy which it may have
available to it pursuant to the terms of the Transaction
Agreements.
2.4
Waiver
. In
addition to the waivers contained in Section 2.1 hereof, to
the fullest extent permitted by Law, the Guarantor waives and
agrees that it shall not at any time insist upon, plead or in any
manner whatever claim any appraisal, valuation, stay, extension,
marshaling of assets or redemption laws, or exemption, whether now
or at any time hereafter in force, which may delay, prevent or
otherwise affect the performance by the Guarantor of the Guaranteed
Obligations under, or the enforcement by Agent or Obligees of, this
Guaranty. To the fullest extent permitted by Law, the
Guarantor hereby waives diligence, presentment and demand (whether
for non-payment or protest or of acceptance, maturity, extension of
time, change in nature or form of the Guaranteed Obligations,
acceptance of further security, release of further security,
composition or agreement arrived at as to the amount of, or the
terms of, the Guaranteed Obligations, notice of adverse change in
the Company’s financial condition or any other fact which
might increase the risk to the Guarantor) with respect to any of
the Guaranteed Obligations or all other demands whatsoever and
waive the benefit of all provisions of Law which are or might be in
conflict with the terms of this Guaranty. The Guarantor
agrees that, as of the date of this Guaranty and to its knowledge,
its obligations under this Guaranty are not subject to any offsets
or defenses against Agent or Obligees or any member of the Company
Group of any kind. To the fullest extent permitted by Law,
and subject to the terms of any Subordination Agreement, the
Guarantor further agrees that it shall not seek to enforce any
counterclaims, offsets or defenses against Agent or any Obligee or
against any member of the Company Group of any kind which may arise
in the future.
2.5
Benefit of
Guaranty . The provisions of
this Guaranty are for the benefit of Obligees, and nothing herein
contained shall impair, as between any member of the Company Group
and Obligees, the obligations of any member of the Company Group
under the Transaction Agreements.
2.6
Modification
of Guaranteed Obligations, Etc . The Guarantor hereby
acknowledges and agrees that Agent and the other Obligees may at
any time or from time to time, with or without the consent of or
notice to the Guarantor or any Subsidiary Guarantor:
(a)
change or extend
the manner, place or terms of payment of, or renew or alter all or
any portion of, the Guaranteed Obligations;
(b)
take any action
under or in respect of the Transaction Agreements in the exercise
of any remedy, power or privilege contained therein or available to
it at law, equity or otherwise, or waive or refrain from exercising
any such remedies, powers or privileges;
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(c)
amend or modify,
in any manner whatsoever, the other Transaction
Agreements;
(d)
extend or waive
the time for any member of the Company Group’s performance
of, or compliance with, any term, covenant or agreement on its part
to be performed or observed under the Transaction Agreements, or
waive such performance or compliance or consent to a failure of, or
departure from, such performance or compliance;
(e)
take and hold
collateral for the payment of the Guaranteed Obligations guaranteed
hereby or sell, exchange, release, dispose of, or otherwise deal
with, any property pledged, mortgaged or conveyed, or in which
Agent or other Obligees have been granted a Lien, to secure any
Obligations;
(f)
release anyone
who may be liable in any manner for the payment of any amounts owed
by the Guarantor or any other member of the Company Group to Agent
or any other Obligee;
(g)
modify or
terminate the terms of any intercreditor or subordination agreement
pursuant to which claims of other creditors of the Guarantor or any
other member of the Company Group are subordinated to the claims of
Agent and Obligees, or enter into an intercreditor or subordination
agreement with any other creditor of the Guarantor or any other
member of the Company Group, except for such intercreditor or
subordination agreements to which the Guarantor is a party if the
Guarantor’s consent is required pursuant to the terms
thereof; and/or
(h)
apply any sums by
whomever paid or however realized to any amounts owing by the
Guarantor or any other member of the Company Group to Agent or any
other Obligee in such manner as Agent or any Obligee shall
determine in its discretion;
and Agent and other Obligees shall not incur any
liability to the Guarantor as a result thereof, and no such action
shall impair or release the Guaranteed Obligations of the Guarantor
under this Guaranty.
2.7
Reinstatement
. This
Guaranty shall remain in full force and effect and continue to be
effective should any petition be filed by or against the Guarantor
or any other member of the Company Group for liquidation or
reorganization, should the Guarantor or any other member of the
Company Group become insolvent or make an assignment for the
benefit of creditors or should a receiver or trustee be appointed
for all or any significant part of the assets of the Guarantor or
any other member of the Company Group, and shall continue to be
effective or be reinstated, as the case may be, if at any time
payment and performance of the Guaranteed Obligations, or any part
thereof, is, pursuant to applicable Law, rescinded or reduced in
amount, or must otherwise be restored or returned by Agent or any
Obligee, whether as a “voidable preference,”
“fraudulent conveyance,” or otherwise, all as though
such payment or performance had not been made. In the event
that any payment, or any part thereof, is rescinded, reduced,
restored or returned, the Guaranteed Obligations shall be
reinstated and deemed reduced only by such amount paid and not so
rescinded, reduced, restored or returned.
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2.8
Waiver of
Subrogation, Etc . Notwithstanding
anything to the contrary in this Guaranty or in any other
Transaction Agreement, the Guarantor hereby:
(a)
expressly and
irrevocably waives, on behalf of itself and its successors and
assigns (including any surety) until the Termination Date, any and
all rights at law or in equity to subrogation, to reimbursement, to
exoneration, to contribution, to indemnification, to set-off or to
any other rights that could accrue to a surety against a principal,
to a guarantor against a principal, to a guarantor against a maker
or obligor, to an accommodation party against the party
accommodated, to a holder or transferee against a maker, or to the
holder of any claim against any Person, and which the Guarantor may
have or hereafter acquire against any member of the Company Group
in connection with or as a result of the Guarantor’s
execution, delivery and/or performance of this Guaranty, or any
other documents to which the Guarantor is a party or otherwise;
and
(b)
acknowledges and
agrees (i) that this waiver is intended to benefit Agent and the
other Obligees and shall not limit or otherwise effect the
Guarantor’s liability hereunder or the enforceability of this
Guaranty, and (ii) that Obligees are intended third party
beneficiaries of the waivers and agreements set forth in this
Section 2.8 .
2.9
Election of
Remedies . If Agent may,
under applicable Law, proceed to realize benefits under any of the
Transaction Agreements giving Agent and Obligees a Lien upon any
collateral owned by any member of the Company Group, either by
judicial foreclosure or by non-judicial sale or enforcement, Agent
may, at its sole option, determine which of such remedies or rights
it may pursue without affecting any of such rights and remedies
under this Guaranty. If, in the exercise of any of its rights
and remedies, Agent shall forfeit any of its rights or remedies,
including its right to enter a deficiency judgment against any
member of the Company Group, whether because of any applicable Laws
pertaining to “election of remedies” or the like, the
Guarantor, to the fullest extent permitted by Law, hereby consents
to such action by Agent and waives any claim based upon such
action, even if such action by Agent shall result in a full or
partial loss of any rights of subrogation which the Guarantor might
otherwise have had but for such action by Agent. Any election
of remedies which results in the denial or impairment of the right
of Agent to seek a deficiency judgment against any member of the
Company Group shall not impair the Guarantor’s obligation to
pay the full amount of the Guaranteed Obligations. In the
event Agent shall bid at any foreclosure or trustee’s sale or
at any private sale permitted by Law or the Transaction Agreements,
Agent may bid all or less than the amount of the Guaranteed
Obligations.
2.10
Contribution;
Subrogation . At any time a payment
in respect of the Guaranteed Obligations is made under this
Guaranty, the right of contribution of each Guarantor against each
other Guarantor shall be determined as provided in the immediately
following sentence, with the right of contribution of each
Guarantor to be revised and restated as of each date on which a
payment (a “Relevant Payment”) is made on the
Guaranteed Obligations under this Guaranty. At any time that
a Relevant Payment is made by a Guarantor that results in the
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