Guaranty - Aviall Inc. and Citicorp USA Inc.
GUARANTY
GUARANTY, dated as of December 21, 2001, by AVIALL, INC.
("Holdings") and each of the other entities listed on the signature pages hereof
or that becomes a party hereto pursuant to Section 23 (Additional Guarantors)
hereof (each a "Subsidiary Guarantor" and, together with Holdings, collectively,
the "Guarantors" and individually a "Guarantor"), in favor of the Administrative
Agent, each Lender, each Issuer and each other holder of an Obligation (as each
such term is defined in the Credit Agreement referred to below) (each, a
"Guarantied Party" and, collectively, the "Guarantied Parties").
WITNESSETH:
WHEREAS, pursuant to the Credit Agreement dated as of December
17, 2001 (together with all appendices, exhibits and schedules thereto and as
the same may be amended, restated, supplemented or otherwise modified from time
to time, the "Credit Agreement"; capitalized terms defined therein and used
herein having the meanings given to them in the Credit Agreement) among Aviall
Services, Inc. (the "Borrower"), Holdings, the Lenders and Issuers party thereto
and Citicorp USA, Inc., as agent for the Lenders and Issuers, the Lenders and
Issuers have severally agreed to make extensions of credit to the Borrower upon
the terms and subject to the conditions set forth therein;
WHEREAS, Holdings is the sole shareholder of the Borrower and
each Subsidiary Guarantor is a direct or indirect Subsidiary of the Borrower;
WHEREAS, each Guarantor will receive substantial direct and
indirect benefits from the making of the Loans, the issuance of the Letters of
Credit and the granting of the other financial accommodations to the Borrower
under the Credit Agreement; and
WHEREAS, a condition precedent to the obligation of the
Lenders and the Issuers to make their respective extensions of credit to the
Borrower under the Credit Agreement is that the Guarantors shall have executed
and delivered this Guaranty for the benefit of the Guarantied Parties;
NOW, THEREFORE, in consideration of the premises set forth
above, the terms and conditions contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
SECTION 1 GUARANTY
(a) To induce the Lenders to make the Loans and the Issuers to
issue Letters of Credit, each Guarantor hereby absolutely, unconditionally and
irrevocably guarantees, as primary obligor and not merely as surety, the full
and punctual payment when due, whether at stated maturity or earlier, by reason
of acceleration, mandatory prepayment or otherwise in accordance herewith or any
other Loan Document, of all the Obligations, whether or not from time to time
reduced or extinguished or hereafter increased or incurred, whether or not
recovery may be or hereafter may become barred by any statute of limitations,
whether or not enforceable as against the Borrower, whether now or hereafter
existing, and whether due or to become due, including principal, interest
(including interest at the contract rate applicable upon default accrued or
accruing after the commencement of any proceeding under the Bankruptcy Code,
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not such interest is an allowed claim in such proceeding), fees and costs of
collection. This Guaranty constitutes a guaranty of payment and not of
collection.
(b) Each Guarantor further agrees that, if (i) any payment
made by Borrower or any other person and applied to the Obligations is at any
time annulled, avoided, set aside, rescinded, invalidated, declared to be
fraudulent or preferential or otherwise required to be refunded or repaid, or
(ii) the proceeds of Collateral are required to be returned by any Guarantied
Party to the Borrower, its estate, trustee, receiver or any other party,
including any Guarantor, under any bankruptcy law, equitable cause or any other
Requirement of Law, then, to the extent of such payment or repayment, any such
Guarantor's liability hereunder (and any Lien or other Collateral securing such
liability) shall be and remain in full force and effect, as fully as if such
payment had never been made. If, prior to any of the foregoing, this Guaranty
shall have been cancelled or surrendered (and if any Lien or other Collateral
securing such Guarantor's liability hereunder shall have been released or
terminated by virtue of such cancellation or surrender), this Guaranty (and such
Lien or other Collateral) shall be reinstated in full force and effect, and such
prior cancellation or surrender shall not diminish, release, discharge, impair
or otherwise affect the obligations of any such Guarantor in respect of the
amount of such payment (or any Lien or other Collateral securing such
obligation).
SECTION 2 LIMITATION OF GUARANTY
Any term or provision of this Guaranty or any other Loan
Document to the contrary notwithstanding, the maximum aggregate amount of the
Obligations for which any Subsidiary Guarantor shall be liable shall not exceed
the maximum amount for which such Subsidiary Guarantor can be liable without
rendering this Guaranty or any other Loan Document, as it relates to such
Subsidiary Guarantor, subject to avoidance under applicable law relating to
fraudulent conveyance or fraudulent transfer (including Section 548 of the
Bankruptcy Code or any applicable provisions of comparable state law)
(collectively, "Fraudulent Transfer Laws"), in each case after giving effect (a)
to all other liabilities of such Subsidiary Guarantor, contingent or otherwise,
that are relevant under such Fraudulent Transfer Laws (specifically excluding,
however, any liabilities of such Subsidiary Guarantor in respect of intercompany
Indebtedness to the Borrower to the extent that such Indebtedness would be
discharged in an amount equal to the amount paid by such Subsidiary Guarantor
hereunder) and (b) to the value as assets of such Subsidiary Guarantor (as
determined under the applicable provisions of such Fraudulent Transfer Laws) of
any rights to subrogation, contribution, reimbursement, indemnity or similar
rights held by such Subsidiary Guarantor pursuant to (i) applicable Requirements
of Law, (ii) Section 3 (Contribution) of this Guaranty or (iii) any other
Contractual Obligations providing for an equitable allocation among such
Subsidiary Guarantor and other Subsidiaries or Affiliates of the Borrower of
obligations arising under this Guaranty or other guaranties of the Obligations
by such parties.
SECTION 3 CONTRIBUTION
To the extent that any Subsidiary Guarantor shall be required
hereunder to pay a portion of the Obligations exceeding the greater of (a) the
amount of the economic benefit actually received by such Subsidiary Guarantor
from the Revolving Loans and (b) the amount such Subsidiary Guarantor would
otherwise have paid if such Subsidiary Guarantor had paid the aggregate amount
of the Obligations (excluding the amount thereof repaid by the Borrower and
Holdings) in the same proportion as such Subsidiary Guarantor's net worth at the
date enforcement is sought hereunder bears to the aggregate net worth of all the
Subsidiary Guarantors at the date enforcement is sought hereunder, then such
Guarantor shall be reimbursed by such
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other Subsidiary Guarantors for the amount of such excess, pro rata, based on
the respective net worths of such other Subsidiary Guarantors at the date
enforcement hereunder is sought.
SECTION 4 AUTHORIZATION; OTHER AGREEMENTS
The Guarantied Parties are hereby authorized, without notice
to, or demand upon, any Guarantor, which notice and demand requirements each are
expressly waived hereby, and without discharging or otherwise affecting the
obligations of any Guarantor hereunder (which obligations shall remain absolute
and unconditional notwithstanding any such action or omission to act), from time
to time, to do each of the following:
(a) supplement, renew, extend, accelerate or otherwise change
the time for payment of, or other terms relating to, the Obligations, or any
part of them, or otherwise modify, amend or change the terms of any promissory
note or other agreement, document or instrument (including the other Loan
Documents) now or hereafter executed by the Borrower and delivered to the
Guarantied Parties or any of them, including any increase or decrease of
principal or the rate of interest thereon;
(b) waive or otherwise consent to noncompliance with any
provision of any instrument evidencing the Obligations, or any part thereof, or
any other instrument or agreement in respect of the Obligations (including the
other Loan Documents) now or hereafter executed by the Borrower and delivered to
the Guarantied Parties or any of them;
(c) accept partial payments on the Obligations;
(d) receive, take and hold additional security or collateral
for the payment of the Obligations or any part of them and exchange, enforce,
waive, substitute, liquidate, terminate, abandon, fail to perfect, subordinate,
transfer, otherwise alter and release any such additional security or
collateral;
(e) settle, release, compromise, collect or otherwise
liquidate the Obligations or accept, substitute, release, exchange or otherwise
alter, affect or impair any security or collateral for the Obligations or any
part of them or any other guaranty therefor, in any manner;
(f) add, release or substitute any one or more other
guarantors, makers or endorsers of the Obligations or any part of them and
otherwise deal with the Borrower or any other guarantor, maker or endorser;
(g) apply to the Obligations any payment or recovery (x) from
the Borrower, from any other guarantor, maker or endorser of the Obligations or
any part of them or (y) from any Guarantor in such order as provided herein, in
each case whether such Obligations are secured or unsecured or guaranteed or not
guaranteed by others;
(h) apply to the Obligations any payment or recovery from any
Guarantor of the Obligations or any sum realized from security furnished by such
Guarantor upon its indebtedness or obligations to the Guarantied Parties or any
of them, in each case whether or not such indebtedness or obligations relate to
the Obligations; and
(i) refund at any time any payment received by any Guarantied
Party in respect of any Obligation, and payment to such Guarantied Party of the
amount so refunded shall be fully guaranteed hereby even though prior thereto
this Guaranty shall have been cancelled or
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surrendered (or any release or termination of any Collateral by virtue thereof),
and such prior cancellation or surrender shall not diminish, release, discharge,
impair or otherwise affect the obligations of any Guarantor hereunder in respect
of the amount so refunded (and any Collateral so released or terminated shall be
reinstated with respect to such obligations);
even if any right of reimbursement or subrogation or other right or remedy of
any Guarantor is extinguished, affected or impaired by any of the foregoing
(including any election of remedies by reason of any judicial, non-judicial or
other proceeding in respect of the Obligations that impairs any subrogation,
reimbursement or other right of such Guarantor).
SECTION 5 GUARANTY ABSOLUTE AND UNCONDITIONAL
Each Guarantor hereby waives any defense of a surety or
guarantor or any other obligor on any obligations arising in connection with or
in respect of any of the following and hereby agrees that its obligations under
this Guaranty are absolute and unconditional and shall not be discharged or
otherwise affected as a result of any of the following:
(a) the invalidity or unenforceability of any of the
Borrower's obligations under the Credit Agreement or any other Loan Document or
any other agreement or instrument relating thereto, or any security for, or
other guaranty of the Obligations or any part of them, or the lack of perfection
or continuing perfection or failure of priority of any security for the
Obligations or any part of them;
(b) the absence of any attempt to collect the Obligations or
any part of them from the Borrower or other action to enforce the same;
(c) failure by any Guarantied Party to take any steps to
perfect and maintain any Lien on, or to preserve any rights to, any Collateral;
(d) any Guarantied Party's election, in any proceeding
instituted under chapter 11 of the Bankruptcy Code, of the application of
Section 1111(b)(2) of the Bankruptcy Code;
(e) any borrowing or grant of a Lien by the Borrower, as
debtor-in-possession, or extension of credit, under Section 364 of the
Bankruptcy Code;
(f) the disallowance, under Section 502 of the Bankruptcy
Code, of all or any portion of any Guarantied Party's claim (or claims) for
repayment of the Obligations;
(g) any use of cash collateral under Section 363 of the
Bankruptcy Code;
(h) any agreement or stipulation as to the provision of
adequate protection in any bankruptcy proceeding;
(i) the avoidance of any Lien in favor of the Guarantied
Parties or any of them for any reason;
(j) any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, liquidation or dissolution proceeding commenced by or
against the Borrower, any Guarantor or any of the Borrower's other Subsidiaries,
including any discharge of, or bar or stay
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against collecting, any Obligation (or any part of them or interest thereon) in
or as a result of any such proceeding;
(k) failure by any Guarantied Party to file or enforce a claim
against the Borrower or its estate in any bankruptcy or insolvency case or
proceeding;
(l) any action taken by any Guarantied Party if such action is
authorized hereby;
(m) any election following the occurrence of an Event of
Default by any Guarantied Party to proceed separately against the personal
property Collateral in accordance with such Guarantied Party's rights under the
UCC or, if the Collateral consists of both personal and real property, to
proceed against such personal and real property in accordance with such
Guarantied Party's rights with respect to such real property; or
(n) any other circumstance that might otherwise constitute a
legal or equitable discharge or defense of a surety or guarantor or any other
obligor on any obligations, other than the payment in full of the Obligations.
SECTION 6 WAIVERS
Each Guarantor hereby waives diligence, promptness,
presentment, demand for payment or performance and protest and notice of
protest, notice of acceptance and any other notice in respect of the Obligations
or any part of them, and any defense arising by reason of any disability or
other defense of the Borrower. Each Guarantor shall not, until the Obligations
are irrevocably paid in full and the Revolving Credit Commitments have been
terminated, assert any claim or counterclaim it may have against the Borrower or
set off any of its obligations to the Borrower against any obligations of the
Borrower to it. In connection with the foregoing, each Guarantor covenants that
its obligations hereunder shall not be discharged, except by complete
performance.
SECTION 7 RELIANCE
Each Guarantor hereby assumes responsibility for keeping
itself informed of the financial condition of the Borrower and any endorser and
other guarantor of all or any part of the Obligations, and of all other
circumstances bearing upon the risk of nonpayment of the Obligations, or any
part thereof, that diligent inquiry would reveal, and each Guarantor hereby
agrees that no Guarantied Party shall have any duty to advise any Guarantor of
information known to it regarding such condition or any such circumstances. In
the event any Guarantied Party, in its sole discretion, undertakes at any time
or from time to time to provide any such information to any Guarantor, such
Guarantied Party shall be under no obligation (a) to undertake any investigation
not a part of its regular business routine, (b) to disclose any information that
such Guarantied Party, pursuant to accepted or reasonable commercial finance or
banking practices, wishes to maintain confidential or (c) to make any other or
future disclosures of such information or any other information to any
Guarantor.
SECTION 8 SUBORDINATION OF SUBROGATION AND CONTRIBUTION RIGHTS
Until the Obligations have been irrevocably paid in full and
the Revolving Credit Commitments have been terminated, the Guarantors shall not
enforce or otherwise exercise any right of subrogation to any of the rights of
the Guarantied Parties or any part of them against the
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Borrower or any right of reimbursement or contribution or similar right against
the Borrower by reason of this Agreement or by any payment made by any Guarantor
in respect of the Obligations.
SECTION 9 SUBORDINATION
Each Guarantor hereby agrees that any Indebtedness of the
Borrower now or hereafter owing to any Guarantor, whether heretofore, now or
hereafter created (the "Guarantor Subordinated Debt"), is hereby subordinated to
all of the Obligations and that, except as permitted under Section 8.5
(Restricted Payments) of the Credit Agreement, the Guarantor Subordinated Debt
shall not be paid in whole or in part until the Obligations have been paid in
full and this Guaranty is terminated and of no further force or effect. No
Guarantor shall accept any payment of or on account of any Guarantor
Subordinated Debt at any time in contravention of the foregoing. Upon the
occurrence and during the continuance of an Event of Default, the Borrower shall
pay to the Administrative Agent any payment of all or any part of the Guarantor
Subordinated Debt and any amount so paid to the Administrative Agent shall be
applied to payment of the Obligations as provided in Section 2.13(f) (Payments
and Computations) of the Credit Agreement. Each payment on the Guarantor
Subordinated Debt received in violation of any of the provisions hereof shall be
deemed to have been received by such Guarantor as trustee for the Guarantied
Parties and shall be paid over to the Administrative Agent immediately on
account of the Obligations, but without otherwise affecting in any manner such
Guarantor's liability hereof. Each Guarantor agrees to file all claims against
the Borrower in any bankruptcy or other proceeding in which the filing of claims
is required by law in respect of any Guarantor Subordinated Debt, and the
Administrative Agent shall be entitled to all of such Guarantor's rights
thereunder. If for any reason a Guarantor fails to file such claim at least ten
Business Days prior to the last date on which such claim should be filed, such
Guarantor hereby irrevocably appoints the Administrative Agent as its true and
lawful attorney-in-fact and is hereby authorized to act as attorney-in-fact in
such Guarantor's name to file such claim or, in the Administrative Agent's
discretion, to assign such claim to and cause proof of claim to be filed in the
name of the Administrative Agent or its nominee. In all such cases, whether in
administration, bankruptcy or otherwise, the person or persons authorized to pay
such claim shall pay to the Administrative Agent the full amount payable on the
claim in the proceeding, and, to the full extent necessary for that purpose,
each Guarantor hereby assigns to the Administrative Agent all of such
Guarantor's rights to any payments or distributions to which such Guarantor
otherwise would be entitled. If the amount so paid is greater than such
Guarantor's liability hereunder, the Administrative Agent shall pay the excess
amount to the party entitled thereto. In addition, each Guarantor hereby
irrevocably appoints the Administrative Agent as its attorney-in-fact to
exercise all of such Guarantor's voting rights in connection with any bankruptcy
proceeding or any plan for the reorganization of the Borrower.
SECTION 10 DEFAULT; REMEDIES
The obligations of each Guarantor hereunder are independent of
and separate from the Obligations. If any Obligation is not paid when due, or
upon any Event of Default hereunder or upon any default by the Borrower as
provided in any other instrument or document evidencing all or any part of the
Obligations, the Administrative Agent may, at its sole election, proceed
directly and at once, without notice, against any Guarantor to collect and
recover the full amount or any portion of the Obligations then due, without
first proceeding against the Borrower or any other guarantor of the Obligations,
or against any Collateral under the Loan Documents or joining the Borrower or
any other guarantor in any proceeding against any Guarantor. At any time after
maturity of the Obligations, the Administrative Agent may (unless the
Obligations have
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been irrevocably paid in full), without notice to any Guarantor and regardless
of the acceptance of any Collateral for the payment hereof, appropriate and
apply toward the payment of the Obligations (a) any indebtedness due or to
become due from any Guarantied Party to such Guarantor and (b) any moneys,
credits or other property belonging to such Guarantor at any time held by or
coming into the possession of any Guarantied Party or any of its respective
Affiliates.
SECTION 11 IRREVOCABILITY
This Guaranty shall be irrevocable as to the Obligations (or
any part thereof) until the Commitments have been terminated and all monetary
Obligations then outstanding have been irrevocably repaid in cash, at which time
this Guaranty shall automatically be cancelled. Upon such cancellation and at
the written request of any Guarantor or its successors or assigns, and at the
cost and expense of such Guarantor or its successors or assigns, the
Administrative Agent shall execute in a timely manner a satisfaction of this
Guaranty and such instruments, documents or agreements as are necessary or
desirable to evidence the termination of this Guaranty.
SECTION 12 SETOFF
Upon the occurrence and during the continuance of an Event of
Default, each Guarantied Party and each Affiliate of a Guarantied Party may,
without notice to any Guarantor and regardless of the acceptance of any security
or collateral for the payment hereof, appropriate and apply toward the payment
of all or any part of the Obligations (a) any indebtedness due or to become due
from such Guarantied Party or Affiliate to such Guarantor and (b) any moneys,
credits or other property belonging to such Guarantor, at any time held by, or
coming into, the possession of such Guarantied Party or Affiliate.
SECTION 13 NO MARSHALLING
Each Guarantor consents and agrees that no Guarantied Party or
Person acting for or on behalf of any Guarantied Party shall be under any
obligation to marshal any assets in favor of any Guarantor or against or in
payment of any or all of the Obligations.
SECTION 14 ENFORCEMENT; AMENDMENTS; WAIVERS
No delay on the part of any Guarantied Party in the exercise
of any right or remedy arising under this Guaranty, the Credit Agreement, any
other Loan Document or otherwise with respect to all or any part of the
Obligations, the Collateral or any other guaranty of or security for all or any
part of the Obligations shall operate as a waiver thereof, and no single or
partial exercise by any such Person of any such right or remedy shall preclude
any further exercise thereof. No modification or waiver of any provision of this
Guaranty shall be binding upon any Guarantied Party, except as expressly set
forth in a writing duly signed and delivered by the party making such
modification or waiver. Failure by any Guarantied Party at any time or times
hereafter to require strict performance by the Borrower, any Guarantor, any
other guarantor of all or any part of the Obligations or any other Person of any
provision, warranty, term or condition contained in any Loan Document now or at
any time hereafter executed by any such Persons and delivered to any Guarantied
Party shall not waive, affect or diminish any right of any Guarantied Party at
any time or times hereafter to demand strict performance thereof and such right
shall not be deemed to have been waived by any act or knowledge of any
Guarantied Party, or its respective agents, officers or employees, unless such
waiver is contained in an instrument in writing, directed and delivered to the
Borrower or such Guarantor, as applicable, specifying such
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waiver, and is signed by the party or parties necessary to give such waiver
under the Credit Agreement. No waiver of any Event of Default by any Guarantied
Party shall operate as a waiver of any other Event of Default or the same Event
of Default on a future occasion, and no action by any Guarantied Party permitted
hereunder shall in any way affect or impair any Guarantied Party's rights and
remedies or the obligations of any Guarantor under this Guaranty. Any
determination by a court of competent jurisdiction of the amount of any
principal or interest owing by the Borrower to a Guarantied Party shall be
conclusive and binding on each Guarantor irrespective of whether such Guarantor
was a party to the suit or action in which such determination was made.
SECTION 15 SUCCESSORS AND ASSIGNS
This Guaranty shall be binding upon each Guarantor and upon
the successors and assigns of such Guarantors and shall inure to the benefit of
the Guarantied Parties and their respective successors and assigns; all
references herein to the Borrower and to the Guarantors shall be deemed to
include their respective successors and assigns. The successors and assigns of
the Guarantors and the Borrower shall include, without limitation, their
respective receivers, trustees and debtors-in-possession. All references to the
singular shall be deemed to include the plural where the context so requires.
SECTION 16 REPRESENTATIONS AND WARRANTIES; COVENANTS
Each Guarantor hereby (a) represents and warrants that the
representations and warranties as to it made by the Borrower in Article IV
(Representations and Warranties) of the Credit Agreement are true and correct on
each date as required by Section 3.2(b)(i) (Conditions Precedent to Each Loan
and Letter of Credit) of the Credit Agreement and (b) agrees to take, or refrain
from taking, as the case may be, each action necessary to be taken or not taken,
as the case may be, so that no Default or Event of Default is caused by the
failure to take such action or to refrain from taking such action by such
Guarantor.
SECTION 17 GOVERNING LAW
This Guaranty and the rights and obligations of the parties
hereto shall be governed by, and construed and interpreted in accordance with,
the law of the State of New York.
SECTION 18 SUBMISSION TO JURISDICTION; SERVICE OF PROCESS
(a) Any legal action or proceeding with respect to this
Guaranty, and any other Loan Document, may be brought in the courts of the State
of New York or of the United States of America for the Southern District of New
York, and, by execution and delivery of this Agreement, each Guarantor hereby
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The parties hereto
hereby irrevocably waive any objection, including any objection to the laying of
venue or based on the grounds of forum non conveniens, that any of them may now
or hereafter have to the bringing of any such action or proceeding in such
respective jurisdictions.
(b) Each Guarantor hereby irrevocably designates, appoints and
empowers CT Corporation (telephone number: ___________) (telecopy
number:__________) (the "Process Agent"), in the case of any suit, action or
proceeding brought in the United States of America as its designee, appointee
and agent to receive, accept and acknowledge for and on its behalf, and in
respect of its property, service of any and all legal process, summons, notices
and documents that
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may be served in any action or proceeding arising out of, or in connection with,
this Guaranty or any other Loan Document. Such service may be made by mailing
(by registered or certified mail, postage prepaid) or delivering a copy of such
process to such Guarantor in care of the Process Agent at the Process Agent's
above address, and such Guarantor hereby irrevocably authorizes and directs the
Process Agent to accept such service on its behalf. As an alternative method of
service, each Guarantor irrevocably consents to the service of any and all
process in any such action or proceeding by the mailing (by registered or
certified mail, postage prepaid) of copies of such process to the Process Agent
or such Guarantor care of the Borrower at the Borrower's address specified in
Section 11.8 (Notices, Etc.) of the Credit Agreement or at such other address as
the Borrower may specify pursuant to such Section 11.8. Each Guarantor agrees
that a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law.
(c) Nothing contained in this Section 18 (Submission to
Jurisdiction; Service of Process) shall affect the right of the Administrative
Agent or any other Guarantied Party to serve process in any other manner
permitted by law or commence legal proceedings or otherwise proceed against a
Guarantor in any other jurisdiction.
(d) If for the purposes of obtaining judgment in any court it
is necessary to convert a sum due hereunder in Dollars into another currency,
the parties hereto agree, to the fullest extent they may effectively do so, that
the rate of exchange used shall be that at which in accordance with normal
banking procedures the Administrative Agent could purchase Dollars with such
other currency at the spot rate of exchange quoted by the Administrative Agent
at 11:00 a.m. (New York time) on the Business Day preceding that on which final
judgment is given, for the purchase of Dollars, for delivery two Business Days
thereafter.
SECTION 19 CERTAIN TERMS
The following rules of interpretation shall apply to this
Guaranty: (a) the terms "herein," "hereof," "hereto" and "hereunder" and similar
terms refer to this Guaranty as a whole and not to any particular Article,
Section, subsection or clause in this Guaranty, (b) unless otherwise indicated,
references herein to an Exhibit, Article, Section, subsection or clause refer to
the appropriate Exhibit to, or Article, Section, subsection or clause in this
Guaranty and (c) the term "including" means "including without limitation"
except when used in the computation of time periods.
SECTION 20 WAIVER OF JURY TRIAL
EACH OF THE ADMINISTRATIVE AGENT, THE OTHER GUARANTIED PARTIES
AND EACH GUARANTOR IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING
WITH RESPECT TO THIS GUARANTY AND ANY OTHER LOAN DOCUMENT.
SECTION 21 NOTICES
Any notice or other communication herein required or permitted
shall be given as provided in Section 11.8 (Notices, Etc.) of the Credit
Agreement and, in the case of any Guarantor, to such Guarantor in care of the
Borrower.
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SECTION 22 SEVERABILITY
Wherever possible, each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
SECTION 23 ADDITIONAL GUARANTORS
Each of the Guarantors agrees that, if, pursuant to Section
7.11(b) (Additional Collateral and Guaranties) of the Credit Agreement, the
Borrower shall be required to cause any Subsidiary that is not a Guarantor to
become a Guarantor hereunder, or if for any reason the Borrower desires any such
Subsidiary to become a Guarantor hereunder, such Subsidiary shall execute and
deliver to the Administrative Agent a Guaranty Supplement in substantially the
form of Exhibit A (Guaranty Supplement) attached hereto and shall thereafter for
all purposes be a party hereto and have the same rights, benefits and
obligations as a Guarantor party hereto on the Closing Date.
SECTION 24 COLLATERAL
Each Guarantor hereby acknowledges and agrees that its
obligations under this Guaranty are secured pursuant to the terms and provisions
of the Collateral Documents executed by it in favor of the Administrative Agent,
for the benefit of the Secured Parties, and covenants that it shall not grant
any Lien with respect to its Property in favor, or for the benefit, of any
Person other than the Administrative Agent, for the benefit of the Secured
Parties.
SECTION 25 COSTS AND EXPENSES
Each Guarantor agrees to pay or reimburse the Administrative
Agent and each of the other Guarantied Parties upon demand for all reasonable
out-of-pocket costs and expenses, including reasonable attorneys' fees
(including allocated costs of internal counsel and costs of settlement),
incurred by the Administrative Agent and such other Guarantied Parties in
enforcing this Guaranty or any security therefor or exercising or enforcing any
other right or remedy available in connection herewith or therewith.
SECTION 26 WAIVER OF CONSEQUENTIAL DAMAGES
EACH GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES,
TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGE IN ANY LEGAL
ACTION OR PROCEEDING IN RESPECT OF THIS GUARANTY OR ANY OTHER LOAN DOCUMENT.
SECTION 27 ENTIRE AGREEMENT
This Guaranty, taken together with all of the other Loan
Documents executed and delivered by the Guarantors, represents the entire
agreement and understanding of the parties hereto and supersedes all prior
understandings, written and oral, relating to the subject matter hereof.
[SIGNATURE PAGES FOLLOW]
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<PAGE>
IN WITNESS WHEREOF, this Guaranty has been duly executed by
the Guarantors as of the day and year first set forth above.
AVIALL, INC.,
as Holdings
By: /s/ Jeffrey J. Murphy
----------------------------------
Name: Jeffrey J. Murphy
Title: Senior Vice President
SUBSIDIARY GUARANTORS:
AVIALL PRODUCT REPAIR SERVICES, INC.
By: /s/ Jeffrey J. Murphy
----------------------------------
Name: Jeffrey J. Murphy
Title: Senior Vice President
INVENTORY LOCATOR SERVICE, LLC
By: /s/ Jeffrey J. Murphy
----------------------------------
Name: Jeffrey J. Murphy
Title: Senior Vice President
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<PAGE>
ACKNOWLEDGED AND AGREED
as of the date first above written:
CITICORP USA, INC.
as Administrative Agent
By: /s/ Shapleigh B. Smith
----------------------------------
Name: Shapleigh B. Smith
Title: Managing Director, Vice President
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