EXHIBIT 10.8
▇▇▇▇▇▇▇▇ LIMITED LIABILITY PARTNERSHIP
CHANCE EXECUTION VERSION
GATX FINANCIAL CORPORATION
as Initial Guarantor
and
CREDIT LYONNAIS (as Security Trustee for the Finance Parties)
EFG AIRCRAFT LIMITED
And
EFG AIRCRAFT (IRELAND) LIMITED
as Initial Beneficiaries
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GUARANTEE
Relating to the obligations of certain companies under the Aircraft
Facility Agreement and certain other Transaction Documents
in respect of certain Airbus Aircraft
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CONTENTS
CLAUSE PAGE
1. Definitions And Construction............................................ 1
2. Guarantee: Demands...................................................... 2
3. Absolute Guarantee...................................................... 4
4. Guarantors' Obligations Absolute........................................ 4
5. Representations, Warranties And Covenants............................... 5
6. Preservation Of Rights.................................................. 6
7. Waivers Of Notice, Etc.................................................. 7
8. Extensions, Etc. ....................................................... 7
9. No Waiver............................................................... 8
10. Bankruptcy.............................................................. 8
11. Subrogation............................................................. 8
12. Notices................................................................. 8
13. Miscellaneous........................................................... 9
14. Guarantor Accession..................................................... 10
15. Beneficiary Accession................................................... 12
16. Law..................................................................... 12
17. Submission To Jurisdiction Of Courts Of England......................... 12
18. Submission To Jurisdiction Of Courts Of New York........................ 13
19. Waiver Of Right To Jury Trial........................................... 13
20. Third Party Rights...................................................... 13
21. Counterparts............................................................ 14
Schedule 1 FORM OF GUARANTOR ACCESSION CERTIFICATE...................... 15
Schedule 2 DOCUMENTS TO ACCOMPANY GUARANTOR ACCESSION CERTIFICATE....... 17
Schedule 3 FORM OF BENEFICIARY ACCESSION CERTIFICATE.................... 18
Schedule 4 FORM OF NOTICE OF DEMAND..................................... 19
THIS GUARANTEE is made on_________December 2001
BETWEEN:
(1) GATX FINANCIAL CORPORATION, a corporation organised and existing under the
laws of Delaware (the "INITIAL GUARANTOR");
(2) CREDIT LYONNAIS a banking institution established under the laws of France
and acting through its main office at ▇-▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ as security trustee for and on behalf of itself, the Agent and each
of the Lenders (the "SECURITY TRUSTEE"); and
(3) EFG AIRCRAFT LIMITED, a limited liability company incorporated and
existing under the laws of the Cayman Islands and having its registered
office at ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ("EFG CAYMAN"); and
(4) EFG AIRCRAFT (IRELAND) LIMITED, a limited liability company incorporated
and existing under the laws of the Republic of Ireland and having its
registered office at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
("EFG IRELAND").
WHEREAS each of the Security Trustee, EFG Cayman and EFG Ireland is herein
referred to as an "INITIAL BENEFICIARY" and together they are referred to herein
as the "INITIAL BENEFICIARIES".
WHEREAS it is proposed that each of the Beneficiaries (other than the Security
Trustee) will enter into Credit Sale Agreements with one or more of the Export
Lessees.
WHEREAS it is proposed that each Beneficiary (other than the Security Trustee)
will finance a portion of the cost each Aircraft owned by it from time to time
pursuant to the Facility Agreement.
WHEREAS it is a requirement of each Beneficiary (other than the Security
Trustee) being willing to enter into any Credit Sale Agreement and lease the
relevant Aircraft thereunder that the obligations of the relevant Export Lessee
thereunder and under the other Transaction Documents to which it is party are
guaranteed pursuant to this Guarantee.
WHEREAS it is a requirement of each Finance Party being willing to make Loans,
and keep Loans outstanding, pursuant to the Facility Agreement that the
obligations of each Export Lessee thereunder and under each of the other
Transaction Documents to which it is party are guaranteed pursuant to this
Guarantee.
NOW THEREFORE the Guarantors agree as follows:
1. DEFINITIONS AND CONSTRUCTION
In this Guarantee (including the Recitals) unless the context otherwise
requires, words and expressions defined in Appendix X hereto (including
definitions incorporated by reference to another document) shall bear the
same respective meanings and application when used herein; and
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"BENEFICIARIES" means the Initial Beneficiaries and each other person
which from time to time becomes and remains a Beneficiary for the purposes
of this Guarantee in accordance with Clause 15 and "BENEFICIARY" means any
of them;
"BENEFICIARY ACCESSION CERTIFICATE" means a certificate substantially in
the form attached hereto as Schedule 3;
"GUARANTEED OBLIGATIONS" means, with respect to any Export Lessee, any and
all monies, liabilities and obligations (whether actual or contingent,
whether now existing or hereafter arising, whether or not for the payment
of money, and including any obligation or liability to pay damages and
including any interest which, but for the application of bankruptcy or
insolvency laws, would have accrued on the amounts in question), which are
now or which may at any time and from time to time hereafter be due,
owing, payable or incurred or be expressed to be due, owing, payable or
incurred from or by such Export Lessee to any Guaranteed Party under any
of the Transaction Documents to which such Export Lessee is party and
references to "GUARANTEED OBLIGATIONS" includes references to any part
thereof;
"GUARANTEED PARTIES" means the Beneficiaries and the Finance Parties:
"GUARANTEE PERCENTAGE" means, as of the date hereof, In relation to the
Initial Guarantor, one hundred per cent. (100%) and, thereafter, in
relation to each Guarantor from time to time, the relevant percentage
specified in the Guarantor Accession Certificate most recently executed
and delivered in accordance with the terms hereof;
"GUARANTOR ACCESSION CERTIFICATE" means a certificate substantially in the
form set out in Schedule 1;
"GUARANTORS" means the Initial Guarantor and each other person which from
time to time becomes and remains a Guarantor for the purposes of this
Guarantee in accordance with Clause 14 and "GUARANTOR" means any of them;
"NON PAYMENT DEFAULT" has the meaning given to it in Clause 2.1 (a); and
"NOTICE OF DEMAND" has the meaning given to it in Clause 2.2 and the form
of which is set out in Schedule 4.
2. GUARANTEE: DEMANDS
2.1 Each Guarantor hereby absolutely, unconditionally and irrevocably as
primary obligor and not as surety:
(a) guarantees to each Beneficiary the due and punctual payment,
performance and observance by each Export Lessee of its Guaranteed
Obligations in accordance with the terms and conditions of the
applicable Transaction Documents as and when due, and, subject to
Clause 2.2 (i) promises to pay for the account of the relevant
Beneficiary from time to time all sums from time to time due and
payable (but unpaid) by any Export Lessee under or pursuant to its
Guaranteed Obligations or on account of any breach thereof
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which are the subject to any Notice of Demand and (ii) undertakes to
each Beneficiary that in the event of a default of any Export Lessee
in the observance or performance of any of its Guaranteed
Obligations being other than for the payment of monies due ("NON
PAYMENT DEFAULT") then the Guarantor shall on demand perform such
Guaranteed Obligations; and
(b) agrees as a primary obligation to indemnify each Beneficiary from
time to time on demand from and against any loss incurred by such
Beneficiary (and, in the case of the Security Trustee, the Finance
Parties) as a result of any of the Guaranteed Obligations owed to
such Beneficiary or the Finance Parties (as the case may be) being
or becoming void, voidable, unenforceable or ineffective as against
the relevant Export Lessee for any reason whatsoever whether or not
known by such Beneficiary or any Finance Party, the amount of such
loss being limited to the amount which such Beneficiary or Finance
Party would otherwise have been entitled to recover from the
relevant Export Lessee.
PROVIDED ALWAYS that if and for as long as there is more than one
Guarantor hereunder (a) the obligations of each of the Guarantors under
this Clause shall be several (and not joint) and shall be limited to that
Guarantor's Guarantee Percentage of any claim with respect to the
Guaranteed Obligations and (b) the failure of any one such Guarantor to
perform its obligations with respect to any such claim shall have no
effect on any other Guarantor's obligations under this Clause 2.1 and (c)
payment by, or on behalf of, a Guarantor to, or for the account of the
relevant Beneficiary pursuant to Clause 2.2 of that Guarantor's Guarantee
Percentage of an amount due by the relevant Export Lessee with respect to
the Guaranteed Obligations (whether or not the relevant Beneficiary shall
have demanded the applicable amount from such Guarantor pursuant to this
Guarantee) shall discharge pro'tanto that Guarantor's liability hereunder
in respect of any claim with respect to the Guaranteed Obligations in
question (any such claim, the "RELEVANT LIABILITIES"; with any Guarantor
whose liability is so discharged in full being with respect to such
Relevant Liabilities a "DISCHARGED GUARANTOR", any Guarantor whose
liability is so discharged in part being with respect to such Relevant
Liabilities a "PARTIALLY DISCHARGED GUARANTOR" and the amount of the
balance of the liability of a Partially Discharged Guarantor being its
"BALANCE").
2.2 If at any time after the date hereof, any Export Lessee is in breach of
its Guaranteed Obligations (or any of mem), subject to Clause 2.4 the
Security Trustee shall notify each Guarantor by sending each thereof a
written notice (a "Notice of Demand"). Each Notice of Demand shall specify
(a) the amount outstanding which the relevant Export Lessee is required to
pay or obligation that is required to be performed and (b) (if applicable)
the account of the applicable Beneficiary to which such payment should be
made. Within three (3) Business Days following receipt of any Notice of
Demand each Guarantor shall pay to such account as is specified in the
Notice of Demand, its Guarantee Percentage of any amount mentioned in (a)
aforesaid so specified in the relevant Notice of Demand. Any payment made
in accordance with the preceding provisions of this Clause 2.2 or other
appropriate action taken to remedy an
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unperformed Guaranteed Obligation shall be deemed to satisfy the relevant
Export Lessee's Guaranteed Obligations pro tanto to the extent of such
payment so made or performance.
2.3 The Guarantor expressly acknowledges and consents to the terms and
conditions of the proviso to Clause 10.2 of the Facility Agreement.
2.4 The Security Trustee will not be obliged to give any Notice of Demand
following the occurrence with respect to GFC of a Termination Event
described in Clause 10.1 (f), (g), (h) or (i) of the Facility Agreement.
2.5 Each Beneficiary acknowledges:
(a) that the liability of any Partially Discharged Guarantor in respect
of the Relevant Liabilities is limited to such Partially Discharged
Guarantor's Balance and that no other Guarantor shall have any
liability in respect of such Balance; and
(b) for the avoidance of doubt, that no Discharged Guarantor shall have
any liability in respect of the Relevant Liabilities in respect of
which it has been discharged.
3. ABSOLUTE GUARANTEE
3.1 This Guarantee shall be an absolute, continuing, unconditional and
irrevocable guarantee of any and all Guaranteed Obligations made,
endorsed, contracted or otherwise incurred by each Export Lessee and all
extensions and renewals of such Guaranteed Obligations in whole or in part
and shall, subject always to Clauses 10 and 14, remain in full force and
effect until such time as the Guaranteed Obligations have been discharged
in full.
3.2 The Guarantors agree that the Guaranteed Obligations shall expressly
include all liabilities which any Export Lessee may incur pursuant to the
Transaction Documents now or at any time in the future upon any
Utilisation Notice being delivered, any Loan Supplement being entered
into, any Credit Sale Agreement being entered into and/or any Aircraft
being delivered.
3.3 Subject to Clause 10, this Guarantee shall terminate upon the irrevocable
and unconditional discharge in full of the Guaranteed Obligations or, in
relation to any Guarantor which becomes a Discharged Guarantor, upon it so
becoming a Discharged Guarantor
4. GUARANTORS' OBLIGATIONS ABSOLUTE
4.1 Subject to Clause 14, the obligations of each Guarantor under this
Guarantee are absolute, direct, irrevocable and unconditional, without
regard to the obligations of any other person or Guarantor and are in
addition to and independent of every other security which the Guaranteed
Parties may at any time hold in respect of the Guaranteed Obligations, and
shall not in any manner be released, discharged or
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otherwise affected by reason of (a) any action taken or not taken by any
of the Guaranteed Parties (which action or inaction is herein consented
and agreed to) or (b) any lack of prior enforcement or retention of any
rights against the Export Lessee, any other Guarantor or any other person
or any property, or (c) the partial or complete illegality,
unenforceability or invalidity of any of the Guaranteed Obligations or any
bankruptcy, insolvency, reorganisation, arrangement, assignment for the
benefit of creditors or similar proceedings with respect to the Export
Lessee or (d) any termination of, or change in, any business, ownership or
other relationship between any of the Export Lessees, any of the
Guaranteed Parties and such Guarantor or (e) any partial payment or
performance by any Export Lessee or any other person in respect of the
Guaranteed Obligations or (f) the limited recourse nature of the
Guaranteed Obligations in accordance with Clause 3.9 of the Facility
Agreement or (g) the election of any of the Beneficiaries to proceed by
non-judicial rather than judicial foreclosure which destroys or otherwise
impairs the subrogation rights of the Guarantors or the right of the
Guarantors to proceed against any Export Lessee or (h) non-disclosure to a
Guarantor by any Finance Party of any facts or information which it may
have about any Export Lessee.
4.2 No delay in making demand on any Guarantor under this Guarantee for
satisfaction of its obligations hereunder shall prejudice the right of the
Beneficiaries to enforce the obligations of such Guarantor hereunder
provided such demand is made within any period required by any applicable
statute of limitations or similar law affecting the demand.
5. REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 Each Guarantor represents as to itself that:
(a) it is a corporation or company duly organised and validly existing
under the laws of the state or country in which it is incorporated
or formed;
(b) it has full legal right, power and authority to execute, deliver and
perform this Guarantee;
(c) all appropriate and necessary corporate actions have been taken, and
all necessary governmental approvals have been obtained, to
authorise the execution and delivery of this Guarantee and the
performance and observance of the terms hereof;
(d) this Guarantee constitutes its legal, valid and binding obligations
and is enforceable against it in accordance with its terms except as
enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganisation, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by
general principles of equity (regardless of whether enforceability
is considered in a proceeding in equity or at law); and
(e) the claims of the Beneficiaries under this Guarantee against it will
rank at least pari passu with the claims of all its other unsecured
and unsubordinated
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creditors other than those whose claims are mandatorily preferred by
Applicable Law.
5.2 Each Guarantor shall, from the date of this Guarantee until it ceases to
have any liability under this Guarantee, take all action and obtain all
governmental approvals required so that its obligations hereunder will at
all times be legal, valid and binding and enforceable in accordance with
the terms hereof.
6. PRESERVATION OF RIGHTS
6.1 Neither the obligations of any Guarantor under this Guarantee nor the
rights, powers and remedies conferred on the Guaranteed Parties under the
Transaction Documents or by law shall be discharged, impaired or otherwise
affected by:
(a) time or other indulgence being granted or agreed to be granted to
any Export Lessee in respect of any Guaranteed Obligations under the
Transaction Documents or under any other security granted in favour
of the Guaranteed Parties;
(b) any termination of, amendment to, or any variation, waiver or
release of any obligation of any Export Lessee under any of the
Transaction Documents made in accordance with the terms thereof or
under any other security granted in favour of the Guaranteed
Parties;
(c) any failure to take, or fully to take, any security contemplated by
the Transaction Documents or otherwise agreed to be taken in respect
of any Export Lessee's obligations under the Transaction Documents;
(d) any failure to perfect or realise or fully realise the value of, or
any release, discharge, exchange or substitution of, any such
security or taken in respect of any Export Lessee's obligations
under any of the Transaction Documents;
(e) the winding up or dissolution of any Export Lessee or any change in
its status, function, control or ownership; or
(f) any other act, event or omission which may operate to discharge,
impair or otherwise affect any of the obligations of each Guarantor
contained in this Guarantee or any of the rights, powers or remedies
conferred upon the Guaranteed Parties or by law.
6.2 No Beneficiary shall be obliged before exercising any of the rights,
powers or remedies conferred upon it in respect of each Guarantor under
this Guarantee or by law:
(a) to make any demand of any Export Lessee;
(b) to take any action or obtain judgement in any court against any
Export Lessee;
(c) to make or file any claim or proof in a winding-up or dissolution of
any Export Lessee; or
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(d) to enforce or seek to enforce any security taken in respect of any
of the obligations of any Export Lessee under the Transaction
Documents.
6.3 Each Guarantor agrees that so long as any of the Guaranteed Obligations
are outstanding, such Guarantor shall not exercise any rights which it may
at any time have by reason of performance by it of its obligations under
this Guarantee or otherwise exercise any right of set-off or counterclaim
against any Export Lessee or to be indemnified by any Export Lessee and/or
to take the benefit (in whole or in part and whether by way of subrogation
or otherwise) of any rights of the Guaranteed Parties under the
Transaction Documents or of any other security taken pursuant to, or in
connection with, the Transaction Documents by the Guaranteed Parties.
6.4 The Guarantor shall hold in trust and promptly pay over to the Security
Trustee an amount equal to any sums it receives from any Export Lessee in
contravention of Clause 6.3.
7. WAIVERS OF NOTICE, ETC.
7.1 Each Guarantor under this Guarantee hereby waives diligence, presentment,
demand, protest or notice of any kind whatsoever with respect to this
Guarantee and the Guaranteed Obligations other than any requirements of
demand or notice on the Export Lessee or the Guarantors as are
specifically set forth in this Guarantee and the other Transaction
Documents.
7.2 The Initial Guarantor waives all benefits and defences it may have under
California Civil Code Sections 2782 to 2856 (inclusive) and 2899 and 3433
with respect to its obligations under this Guarantee.
8. EXTENSIONS, ETC.
Each Guarantor under this Guarantee consents and agrees that the
Guaranteed Parties may, in their sole discretion, at any time and from
time to time:
(a) renew, extend, change or modify the time, manner, place or terms of
payment, performance or observance of any or all of the Guaranteed
Obligations;
(b) exchange, release or surrender any security or property which may at
any time be held by such Guarantor in respect of the Guaranteed
Obligations;
(c) release any surety or guarantor for or of any of the Guaranteed
Obligations;
(d) settle or compromise any or all of the Guaranteed Obligations with
the relevant Export Lessee or any other person liable in relation
thereto; and
(e) subordinate the payment, performance or observance of all or any
part of the Guaranteed Obligations to the payment, performance or
observance of any other debts or obligations which may be due or
owing by the relevant Export Lessee to the Guaranteed Parties or any
other person,
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all in such manner and upon such terms as the relevant Guaranteed Party
may deem proper, without notice to or further assent from any Guarantor
(each of whom agrees to remain bound by this Guarantee notwithstanding any
such thing as aforesaid).
9. NO WAIVER
No election not to exercise, failure or delay in exercising any right nor
any course of dealing or performance under this Guarantee shall operate as
a waiver thereof, nor shall any single or partial exercise of any such
right preclude any other or further exercise thereof or the exercise of
any other right of any of the Guaranteed Parties under this Guarantee, any
other Transaction Document or Applicable Law.
10. BANKRUPTCY
Each Guarantor agrees that if at any time all or any part of any payment
made by such Guarantor hereunder and applied by any of the Guaranteed
Parties to any of the Guaranteed Obligations is or must be rescinded or
returned by such Guaranteed Party, or any other person on behalf of such
Guaranteed Party, for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganisation of the Export
Lessee), such Guaranteed Obligations shall, for the purposes of this
Guarantee, to the extent that such payment is or must be rescinded or
returned, be deemed to be continued in existence notwithstanding such
application by such Guaranteed Party and this Guarantee shall continue to
be effective or be reinstated, as the case may be, as to such Guaranteed
Obligations, all as though such application had not been made. If any
Guaranteed Party is required to return any such payment to or rescind the
performance of a particular guarantor (the "APPLICABLE GUARANTOR") in
relation to a particular Guaranteed Obligation, then notwithstanding the
foregoing to the contrary:
(a) the Applicable Guarantor's obligations hereunder only will be
reinstated with respect to such Guaranteed Obligation; and
(b) the obligations of the other Guarantor or Guarantors (in the case of
each Guarantor other than the Applicable Guarantor) shall not be
reinstated.
11. SUBROGATION
Each Guarantor under this Guarantee shall be subrogated to the rights, if
any, of the Beneficiaries in respect of any matter with respect to which
an amount has been paid by such Guarantor hereunder; Provided Always that
any subrogation rights to which such Guarantor becomes entitled by reason
of performance of any of its obligations hereunder shall be subject and
subordinate to the rights of the Beneficiaries and the Finance Parties
against any Export Lessee under the other Transaction Documents and the
exercise of any such subrogation rights of such Guarantor shall be
deferred until all Guaranteed Obligations have been fully performed.
12. NOTICES
All notices, requests, designations or other communications provided for
herein shall be in writing and shall be deemed to have been given when
delivered personally or
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when telefaxed and receipt confirmed and shall be deemed to have been
received ten (10) days after deposit in the mail, registered airmail
postage prepaid, addressed as follows:
If to the Initial Guarantor
Or any Export Lessee: GATX Financial Corporation
Four Embarcadero Center, Suite 2200
San Francisco, California 94111
U.S.A.
Attention: Aircraft Portfolio Management
Facsimile: ▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
If to any Guarantor (which is not an Initial Guarantor): to its address
specified in the Guarantor Accession Certificate most recently executed by
such Guarantor.
with a copy in all cases to: Credit Lyonnais
▇-▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Attention: Middle Office
Facsimile: ▇▇▇ ▇ ▇▇ ▇▇ ▇▇ ▇▇
or to such other address and details as any party may designate for itself
by written notice to the other party.
13. MISCELLANEOUS
13.1 Any provision of this Guarantee which is prohibited or unenforceable in
any jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction and, to the extent permitted by the
Applicable Law, each Guarantor hereby waives any provision of Applicable
Law that renders any provision of this Guarantee prohibited or
unenforceable in any respect.
13.2 No provision of this Guarantee may be changed, waived, discharged or
terminated orally, but only by an instrument in writing signed by each
Guarantor and the Beneficiaries
13.3 If any sum due from a Guarantor under this Guarantee or any order or
judgement given or made in relation hereto has to be converted from the
currency (the "FIRST CURRENCY") in which the same is payable under this
Guarantee or such order or judgement into another currency (the "SECOND
CURRENCY") for the purpose of (a) making or filing a claim or proof
against the relevant Export Lessee, (b) obtaining an order or judgement in
any court or other tribunal or (c) enforcing any order or judgement given
or made in relation to this Guarantee, such Guarantor shall indemnify and
hold harmless the relevant Beneficiary from and against any loss suffered
as a result of any discrepancy between (i) the rate of exchange used for
such purpose to convert the sum in question
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from the first currency into the second currency and (ii) the rate or
rates of exchange at which such Beneficiary may in the ordinary course of
business purchase the first currency with the second currency upon receipt
of a sum paid to it in satisfaction, in whole or in part, of any such
order, judgement, claim or proof.
13.4 All payments by a Guarantor under this Guarantee shall be made free and
clear of, and without set-off, deduction or withholding for or on account
of, any Taxes, unless such deduction or withholding is required by
Applicable Law. If any Guarantor shall be required by law to make any such
payment subject to deduction or withholding for or on account of any
Taxes, such Guarantor shall pay to the relevant Beneficiary such
additional amounts as may be necessary to ensure that the net amount
received by such Beneficiary after such deduction or withholding (and
after taking account of any further deduction or withholding which is
required to be made as a consequence of such additional amounts), is equal
to the full amount that such Beneficiary would have been entitled to
receive had such deduction or withholding not been required.
13.5 The Security Trustee, acting reasonably, may place to the credit of a
suspense account any moneys received under or in connection with this
Guarantee in order to preserve the rights of the Security Trustee or any
other Beneficiary to prove for the full amount of all of its claims
against the Guarantor or any other GATX Obligor. The Security Trustee may
at any time apply any of the moneys referred to in this Clause in or
towards satisfaction of any of the Guarantor's liabilities under this
Guarantee.
13.6 Each Beneficiary (other than the Security Trustee) may assign its rights
and interests hereunder to the Security Trustee pursuant to one or more
Borrower Security Assignments.
13.7 This is a guarantee of payment and performance and not collection.
13.8 The Guarantors agree from time to time to do and perform such other and
further acts and execute and deliver and all such other documents as may
be required by law or reasonably requested by the Security Trustee to
establish, maintain and protect the rights and remedies of the
Beneficiaries pursuant to this Guarantee.
13.9 In this Guarantee, time is of the essence.
14. GUARANTOR ACCESSION
14.1 The Guarantors shall, by written notice to the Beneficiaries (each an
"ACCESSION NOTICE"), be entitled at any time to request that another
person approved in writing by the Security Trustee (acting on the
instructions of the National Agents and the German Parallel Lender) (each
a "PROSPECTIVE GUARANTOR") accede to this Guarantee as an additional or
replacement Guarantor. Each Accession Notice shall:
(a) give full details of the Prospective Guarantor and its intended
Guarantee Percentage;
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(b) specify whether any existing Guarantor (each a "RETIRING GUARANTOR")
will cease to be a Guarantor if such request is agreed to;
(c) specify whether any existing Guarantor (each an "AFFECTED
GUARANTOR") will have a reduced Guarantee Percentage if such request
is agreed to; and
(d) specify each existing Guarantor (each an "UNAFFECTED GUARANTOR")
whose Guarantee Percentage will not change if such request is agreed
to.
14.2 If the Security Trustee shall agree (acting on the instructions of the
National Agents and the German Parallel Lender) to any request made in an
Accession Notice (which shall be at their absolute discretion), the
following procedures shall apply unless such agreement of the Security
Trustee requires otherwise:
(a) The Guarantors shall deliver to the Beneficiaries:
(i) the documents referred to in Schedule 2 in relation to the
Prospective Guarantor and each Affected Guarantor, each to be
in form and substance reasonably satisfactory to the Security
Trustee; and
(ii) an Guarantor Accession Certificate, duly signed by the
Prospective Guarantor, each Retiring Guarantor (if any) and
each Affected Guarantor (if any) and duly completed in a
manner which is consistent with the information contained in
such Accession Notice.
(b) If the Security Trustee shall be satisfied, acting reasonably, that
the documents referred to in Clause 14.2(a) comply with the
requirements of this Guarantee, the Beneficiaries shall counter-sign
the applicable Guarantor Accession Certificate, whereupon:
(i) each Retiring Guarantor (if any) will be released from its
obligations hereunder;
(ii) the obligations of each Affected Guarantor (if any) hereunder
will be amended to reflect its new Guarantee Percentage as
stated in such Guarantor Accession Certificate;
(iii) the Prospective Guarantor will become a Guarantor hereunder
with the Guarantee Percentage provided for it in the Guarantor
Accession Certificate;
(iv) each Unaffected Guarantor (if any) will continue to be a
Guarantor hereunder with the same Guarantee Percentage
ascribed to it hereunder immediately prior to the execution of
the Guarantor Accession Certificate; and
(v) the Beneficiaries shall acquire the same rights and benefits
hereunder as they would have acquired had the Prospective
Guarantor, each Affected Guarantor (if any) and each
Unaffected Guarantor (if any) been original
- 11 -
parties hereto with the respective Guarantee Percentages
specified for them in such Guarantor Accession Certificate.
15. BENEFICIARY ACCESSION
Any Alternative Borrower shall be entitled at any time to become a
Beneficiary by delivering to the Guarantors a duly completed Beneficiary
Accession Certificate executed by such Alternative Borrower and, upon such
Beneficiary Accession Certificate being executed by all of the Guarantors,
such Alternative Borrower shall acquire the same rights and benefits
hereunder as it would have acquired had it been an original party hereto
in the capacity of an Initial Beneficiary.
16. LAW
This Guarantee shall in all respects be governed by, and construed in
accordance with, the laws of England.
17. SUBMISSION TO JURISDICTION OF COURTS OF ENGLAND
17.1 Each Guarantor under this Guarantee irrevocably agrees that the courts of
England shall have jurisdiction to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in
connection with this Guarantee and, for such purposes, irrevocably submits
to the jurisdiction of such courts.
17.2 Each Guarantor under this Guarantee irrevocably waives any objection which
it might now or hereafter have to the courts referred to in Clause 17.1
being nominated as the forum to hear and determine any suit, action or
proceeding, and to settle any disputes, which may arise out of or in
connection with this Guarantee and agrees not to claim that any such court
is not a convenient or appropriate forum.
17.3 The Initial Guarantor irrevocably appoints GATX International Limited
currently at 34th Floor, One Canada Square, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ SAA
as its agent for service of process in relation to any proceedings before
the English courts in connection with this Guarantee and agrees that the
process by which any suit, action or proceeding in England is begun may be
served on it by being delivered to the registered office of GATX
International Limited from time to time.
The Initial Guarantor further agrees that if the appointment of any person
mentioned in Clause 17.2 ceases to be effective, the Initial Guarantor
shall immediately appoint a further person in England to accept service of
process on its behalf in England and, failing such appointment within
fifteen (15) days, the Security Trustee is entitled to appoint such a
person by notice to the Initial Guarantor.
17.4 The submission to the jurisdiction of the courts referred to in Clause
17.1 shall not (and shall not be construed so as to) limit the right of
the Beneficiaries to take proceedings against any Guarantor under this
Guarantee in any other court of competent jurisdiction (including, without
limitation, as contemplated by Clause 18) nor shall the taking of
proceedings in any one or more jurisdictions preclude the taking of
proceedings in any other jurisdiction, whether concurrently or not.
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18. SUBMISSION TO JURISDICTION OF COURTS OF NEW YORK
18.1 For the purposes of this Guarantee, each Guarantor irrevocably agrees that
any suit, action or proceeding against it or its assets, properties or
revenues, arising out of or relating to this Guarantee or any of the
transactions contemplated hereby (a "RELATED PROCEEDING"), may be brought
by any Beneficiary in the Supreme Court of the State of New York, or any
federal district court, in each case, sitting in the Borough of Manhattan
in the City of New York, United States of America, and each Guarantor
irrevocably submits generally and unconditionally to the non-exclusive
jurisdiction of such court (and to all courts empowered to hear appeals
therefrom) in any Related Proceeding. The submission to such jurisdiction
shall not (and shall not be construed so as to) limit the Security
Trustee's right to bring any Related Proceeding against a Guarantor in any
other jurisdiction (including, without limitation, as contemplated by
Clause 17), nor shall the bringing of a Related Proceeding in any one or
more jurisdictions preclude the bringing of a suit, action or proceeding
in any other jurisdiction whether concurrently or otherwise. Each
Guarantor agrees that a judgement, after exhaustion of all available
appeals, in any Related Proceeding shall be conclusive and binding upon
such Guarantor and may be enforced in any other jurisdiction (A) by suit
upon such judgement, a certified copy of which shall be conclusive
evidence of such judgement and of the amount of the indebtedness specified
therein, or (B) by such other means provided by law, and each Guarantor
agrees that it will not take any steps to obstruct enforcement of any such
judgement in any such other jurisdiction.
18.2 For the purposes of this Guarantee, each Guarantor irrevocably waives, to
the fullest extent permitted by Applicable Law, (a) any objection it may
now or hereafter have to the laying of venue of any Related Proceeding
which may be brought in the courts referred to in Clause 18.1 and (b) any
objection it may now or hereafter have to a Related Proceeding brought in
the courts referred to in Clause 18.1 based on forum non conveniens.
18.3 The Guarantor agrees that service of process may be made on it for the
purposes of any proceedings in New York by service being made on the
Guarantor by certified mail or by personal delivery of process at the
address of the Guarantor set out in Clause 12.
19. WAIVER OF RIGHT TO JURY TRIAL
FOR THE PURPOSES OF THIS GUARANTEE, EACH GUARANTOR AND EACH BENEFICIARY
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION ARISING OUT OF,
UNDER, OR IN CONNECTION WITH THIS GUARANTEE.
20. THIRD PARTY RIGHTS
A person who is not a party to this Guarantee has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this
Guarantee.
- 13 -
21. COUNTERPARTS
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
IN WITNESS WHEREOF this Guarantee has been executed in London by the parties
hereto as a deed and is intended to be and is hereby delivered the day and year
first above written.
- 14 -
SCHEDULE 1
FORM OR GUARANTOR ACCESSION CERTIFICATE
To: [Names of Beneficiaries]
From: [ ]
Dated: [ ]
Dear Sirs
1. We refer to a guarantee dated [-] December 2001 and made between GATX
Financial Corporation, as Initial Guarantor, and Credit Lyonnais, EFG
Aircraft Limited and EFG Aircraft (Ireland) Limited, as Initial
Beneficiaries (as amended, modified and restated prior to the date hereof,
the "GUARANTEE").
2. Terms defined in the Guarantee shall bear the same meaning herein.
3. [ ] (the "PROSPECTIVE GUARANTOR") hereby agrees to be a Guarantor pursuant
to Clause 14 (Guarantor Accession) of the Guarantee with a Guarantee
Percentage of [-] per cent. ([-]%) and accordingly undertakes henceforth
to perform all the obligations (whether now existing or hereafter arising)
expressed to be undertaken under the Guarantee by a Guarantor with such
Guarantee Percentage in all respects as if it had been an original party
thereto as a Guarantor.
4. In consequence of the execution of this Guarantor Accession Certificate,
[the Guarantee Percentages of [-] and [-] will be amended to [-] per
cent. ([-])% and [-] per cent. ([-])% respectively and [-] will cease to
be a Guarantor. In consequence of the execution of this Accession Notice
the Guarantee Percentage of [-] and [-] will not be amended and will
continue to be [-] per cent.([-])% and [-] per cent.([-])%
respectively.](1)
5. The Prospective Guarantor's administrative details are as follows:
Address: [-]
Telefax No: [-]
Attention: [-]
6. This Guarantor Accession Certificate may be executed in any number of
counterparts each of which when executed and delivered is an original, but
all the counterparts together constitute the same document.
7. By its execution and delivery of this Guarantor Accession Certificate the
Prospective Guarantor is deemed on the date of this Guarantor Accession
Certificate to make in respect of itself each of the representations and
warranties set forth in Clause 5.1 of the
-------------
(1) amend as appropriate
- 15 -
Guarantee with reference to the facts and other circumstances subsisting
on the date of this Guarantor Accession Certificate.
8. This Guarantor Accession Certificate shall be governed by and construed in
accordance with English law.
IN WITNESS WHEREOF this certificate has been executed as a deed the day and year
first before written.
[ ],(2)
acting by:
in the presence of:
Signature:
Name:
Title:
Agreed and accepted this [ ] day of [ ] by:
[-]
acting by:
Agreed and accepted this [ ] day of [ ] by:
[-]
acting by:
-------------
(2) include a signature block for the Prospective Guarantor, each Retiring
Guarantor and each Affected Guarantor.
- 16 -
SCHEDULE 2
DOCUMENTS TO ACCOMPANY GUARANTOR ACCESSION CERTIFICATE
1. A copy, certified a true copy by a duly authorised officer of the Proposed
Guarantor, of the constitutional documents of the Proposed Guarantor.
2. Evidence that the Proposed Guarantor has approved the execution and
delivery of the Guarantor Accession Certificate, the accession of the
Proposed Guarantor to this Guarantee and the performance of its
obligations under this Guarantee.
3. A certificate of a duly authorised officer of the Proposed Guarantor
setting out the names and signatures of the person or persons who will
execute the Guarantor Accession Certificate on behalf of the Proposed
Guarantor.
4. A legal opinion of counsel in the jurisdiction of incorporation of the
Proposed Guarantor acceptable to the Security Trustee.
5. A copy, certified a true copy by a duly authorised officer of the Proposed
Guarantor, of any decree, consent, licence, approval, registration or
declaration of, with or by any governmental or other authority in or of
such jurisdiction which is necessary to render any document to be
delivered by the Proposed Guarantor pursuant hereto legal, valid and
binding.
6. Evidence that each Affected Guarantor has approved the execution and
delivery of the Guarantor Accession Certificate, the variation of its
Guarantee Percentage and the performance of its obligations under this
Guarantee with an amended Guarantee Percentage.
7. A certificate of a duly authorised officer of each Affected Guarantor
setting out the names and signatures of the person or persons who will
execute the Guarantor Accession Certificate on behalf of such Affected
Guarantor.
8. A legal opinion of counsel in the jurisdiction of incorporation of each
Affected Guarantor reasonably acceptable to the Security Trustee.
9. A copy, certified a true copy by a duly authorised officer of each
Affected Guarantor, of any decree, consent, licence, approval,
registration or declaration of, with or by any governmental or other
authority in or of such jurisdiction which is necessary to render any
document to be delivered by such Affected Guarantor pursuant hereto legal,
valid and binding.
- 17 -
SCHEDULE 3
FORM OF BENEFICIARY ACCESSION CERTIFICATE
To: [Names of Guarantors]
From: [-]
Dated: [-]
Dear Sirs
1. We refer to a guarantee dated [-] December 2001 and made between GATX
Financial Corporation, as Initial Guarantor, and Credit Lyonnais, EFG
Aircraft Limited and EFG Aircraft (Ireland) Limited, as Initial
Beneficiaries, (as amended, modified and restated prior to the date
hereof, the "GUARANTEE").
2. Terms defined in the Guarantee shall bear the same meaning herein.
3. [-] hereby confirms that it is, or is proposed to be, an Alternative
Borrower under the Facility Agreement and is, or is proposed to be, a
party, as lessor, to one or more Facility Leases with one or more of the
Export Lessees and in such connection desires to become a Beneficiary of
the Guarantee.
4. This Beneficiary Accession Certificate may be executed in any number of
counterparts each of which when executed and delivered is an original, but
all the counterparts together constitute the same document.
5. This Beneficiary Accession Certificate shall be governed by and construed
in accordance with English law.
IN WITNESS WHEREOF this certificate has been executed as a deed the day and year
first before written.
[-],
acting by:
in the presence of:
Signature:
Name:
Title:
Agreed and accepted this [-] day of [-](3)
-------------
(3) include a signature block for each Guarantor
- 18 -
SCHEDULE 4
FORM OF NOTICE OF DEMAND
[LETTERHEAD OF SECURITY TRUSTEE]
To: GATX Financial Corporation
[other Guarantors]
[Date]
RE: GUARANTEE DATED [ ] DECEMBER 2001 BETWEEN, INTER ALIOS, GATX FINANCIAL
CORPORATION AND CREDIT LYONNAIS (THE GUARANTEE")
Capitalised terms used in this Notice of Demand shall have the meanings
specified in the Guarantee.
The following Guaranteed Obligation has not been performed by [name of Export
Lessee]
(a) Obligation to be performed [ ]
(b) Amount to be paid [ ]
(c) Account to which monies should be paid [ ]
Pursuant to the Guarantee, we request [action to be taken/amount to be paid]
within 3 Business Days from receipt of this Notice of Demand.
Signed by
For and on behalf of
[Security Trustee]
- 19 -
Executed as a Deed by )
)
) [ILLEGIBLE]
the duly appointed representative )
of GATX FINANCIAL CORPORATION )
in the Presence of: )
/s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
Executed as a Deed by )
)
the duly appointed attorney-in-fact ) [ILLEGIBLE]
of CREDIT LYONNAIS )
in the presence of: )
Executed as a Deed by )
)
the duly appointed attorney-in-fact ) [ILLEGIBLE]
of EFG AIRCRAFT LIMITED )
in the presence of: )
[ILLEGIBLE]
Executed as a Deed by )
the duly appointed attorney-in-fact )
of EFG AIRCRAFT (IRELAND) LIMITED ) [ILLIGIBLE]
in the presence of: )
[ILLEGIBLE]