FIRST LIEN BORROWER PARTY
GUARANTEE AGREEMENT
FIRST LIEN
BORROWER PARTY GUARANTEE AGREEMENT dated as of October 13,
2009 (this “ Guarantee ”) by International Lease
Finance Corporation, a California corporation (“ ILFC
”), States Aircraft, Inc., a California corporation (“
States ”), Shrewsbury Aircraft Leasing Limited, a
private limited liability company incorporated under the laws of
Ireland (“ Shrewsbury ”, and together with ILFC
and States, the “ Borrowers ”), Top Aircraft,
Inc., a California corporation (“ Top Aircraft
”), ILFC Ireland Limited, a private limited liability company
incorporated under the laws of Ireland (“ ILFC Ireland
”), ILFC France S.a.r.l., a société à
responsabilité limitée organized under the laws
of France (“ ILFC France ”), and ILFC Labuan
Ltd., a Labuan private limited liability company incorporated under
the Offshore Companies Act 1990 of Malaysia (“ ILFC
Labuan ”, and together with ILFC Ireland and ILFC France,
the “ Intermediate Lessees ”) and the Additional
Guarantors (as defined in Section 11) (the Borrowers, Top
Aircraft, the Intermediate Lessees and the Additional Guarantors,
collectively, the “ Guarantors ” and each a
“ Guarantor ”) for the benefit of the Federal
Reserve Bank of New York (with its successors and assigns, the
“ Beneficiary ”).
WHEREAS, each
Guarantor is a direct or indirect wholly owned subsidiary of
American International Group, Inc., a Delaware corporation
(together with its successors, the “ Obligor
”);
WHEREAS, the
Obligor has entered into the Credit Agreement dated as of
September 22, 2008 among the Obligor, as borrower, and the
Beneficiary, as lender (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time, the “
Parent Facility ”);
WHEREAS, the
Borrowers desire to borrow term loans in an aggregate principal
amount of $2,000,000,000 (the “ Term Loans ”)
under the Credit Agreement dated as of the date hereof among the
Borrowers, Top Aircraft, the Intermediate Lessees, AIG Funding,
Inc., as lender (the “ Borrower Facility Lender
”), and Wells Fargo Bank Northwest, National Association, as
security trustee (as amended, restated, amended and restated,
supplemented or otherwise modified from time to time, the “
Borrower Facility ”);
WHEREAS, in order
for the Borrower Facility Lender to make the Term Loans to the
Borrowers under the Borrower Facility, the Obligor must first make
a Borrowing (the “ New FRBNY Borrowing ”) under
the Parent Facility in an amount equal to the Term Loans, with the
funds so borrowed being advanced immediately to the Borrowers in
the form of the Term Loans;
WHEREAS, the
Parent Facility prohibits the making of the Term Loans by the
Borrower Facility Lender to the Borrowers as currently contemplated
by
the Borrower
Facility because the Borrowers are not Loan Parties under the
Parent Facility (the “ Existing Restriction
”);
WHEREAS, the
Beneficiary is willing to make the necessary waiver of the Existing
Restriction and the other applicable provisions of the Parent
Facility, pursuant to the Letter Agreement dated as of
October 13, 2009 among the Obligor and the Beneficiary, to
enable and permit the making of Term Loans under the Borrower
Facility, but only if each Guarantor (i) guarantees the
Guaranteed Obligations (as defined below) as more fully set forth
herein and (ii) secures such guarantee by granting a
first-priority security interest in, and lien on, certain of its
assets in favor of Wells Fargo Bank Northwest, National Association
(the “ Security Trustee ”), for the benefit of
the Beneficiary, as more fully set forth in the Aircraft Mortgage
and Security Agreement dated as of the date hereof (the “
Mortgage ”) among the Guarantors, the Security Trustee
and the other Security Trustees (as defined therein);
and
WHEREAS, in
consideration of the financial accommodation and other support that
the Obligor has provided, directly or indirectly, pursuant to the
Borrower Facility and such financial and other support as the
Obligor may in the future provide to the Guarantors, and in order
to induce the Beneficiary to consent to the making of the Term
Loans the Guarantors are willing to enter into this Guarantee and
to secure their obligations hereunder pursuant to the terms set
forth in the Mortgage.
NOW, THEREFORE, in
consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, each Guarantor, jointly and severally with each other
Guarantor, hereby agrees as follows:
1. Terms
Defined in the Parent Facility; Loan Document . For all
purposes of this Guarantee, all capitalized terms used but not
defined in this Guarantee (including in the recitals above) shall
have the respective meanings assigned to such terms in the Parent
Facility. This Guarantee shall be considered a “Loan
Document” under the Parent Facility.
2. The
Guarantee . Each Guarantor hereby, jointly and severally,
absolutely, unconditionally and irrevocably guarantees, as a
guarantee of payment and not merely as a guarantee of collection,
the full and punctual payment when due (whether at stated maturity,
upon acceleration or otherwise) of each Guaranteed Obligation, as
hereinafter defined; provided that the recourse of the
Beneficiary against the Guarantors under this Guarantee at any time
will be limited to an aggregate amount equal to the lesser of (a)
$2,000,000,000 plus all unpaid interest accrued thereon under the
Borrower Facility through and including such time and (b) the
amount of Obligations (as defined in the Borrower Facility)
outstanding under the Borrower Facility at such time. Upon failure
by the Obligor to pay punctually any Guaranteed Obligation, the
Guarantors shall pay the amount of Guaranteed Obligations not so
paid at the FRBNY Account (as
defined in the
Borrower Facility). The Beneficiary shall notify the Guarantors
when payment of any Guaranteed Obligation is due hereunder (and the
amount so due), unless prevented from doing so by applicable law,
including any Bankruptcy Law; provided that any failure of
the Beneficiary to so notify the Guarantors shall not affect the
obligations of the Guarantors hereunder. Without limiting the
generality of the foregoing, the liability of each Guarantor shall
extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by any Loan Party to the Beneficiary
but for the fact that they are unenforceable or not allowable due
to the existence of a bankruptcy, reorganization or similar
proceeding involving such Loan Party. In furtherance of the
foregoing, the Guarantors hereby agree to make payments of
principal and interest in respect of the Term Loans to the FRBNY
Account set forth in the Borrower Facility and each payment of
principal of the Term Loans shall be credited against and reduce on
a dollar-for-dollar basis the maximum amount of the
Guarantors’ obligations hereunder. For the avoidance of
doubt, any and all payments by any Guarantor under this Guarantee
shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes as though such payment were made
pursuant to Section 2.12 of the Parent Facility and such
Guarantor were a Borrower thereunder.
“
Guaranteed Obligations ” means (i) all principal
of all Loans outstanding from time to time under the Parent
Facility, all interest (including Post-Petition Interest) on such
Loans and all other amounts now or hereafter payable by the Obligor
under the Loan Documents and (ii) any renewals, refinancings
or extensions of any of the foregoing (including Post-Petition
Interest).
3.
Guarantee Unconditional . The obligations of each Guarantor
under this Guarantee are those of primary obligor, and not merely
of surety, and shall be unconditional and absolute and, without
limiting the generality of the foregoing, shall not be released,
discharged or otherwise affected by:
(i) any extension,
renewal, settlement, compromise, waiver or release in respect of
any obligation of the Obligor, any other Guarantor, any
“Guarantor” (as defined in the Parent Facility) (an
“ Existing Guarantor ”) or any other Person
under any Loan Document, by operation of law or
otherwise;
(ii) any
modification or amendment of or supplement to any Loan Document or
any “Loan Document” (as defined in the Borrower
Facility) (a “ Borrower Facility Loan Document
”);
(iii) any release,
impairment, non-perfection or invalidity of any direct or indirect
security for any obligation of the Obligor, any other Guarantor,
any Existing Guarantor or any other Person under any Loan Document
or Borrower Facility Loan Document;
(iv) any change in
the corporate existence, structure or ownership of the Obligor, any
other Guarantor, any Existing Guarantor or any other Person or any
of their respective subsidiaries, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the Obligor,
any other Guarantor, any Existing Guarantor
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