EXHIBIT 10.5.2
EXECUTION COPY
HOLDINGS GUARANTY
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GUARANTY
Dated as of July 27, 2004
given by
ATLAS AIR WORLDWIDE HOLDINGS, INC.
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TABLE OF CONTENTS
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SECTION 1. GUARANTY ....................................................... 1
SECTION 2. GENERAL PROVISIONS RELATING TO THE GUARANTY .................... 2
SECTION 3. COVENANTS OF GUARANTOR ......................................... 6
(a) No Assignment by Guarantor ...................................... 6
(b) Default Under Loan Documents .................................... 6
SECTION 4. REPRESENTATIONS AND WARRANTIES OF GUARANTOR .................... 6
SECTION 5. MISCELLANEOUS .................................................. 6
(a) Waivers; Cumulative Effect ...................................... 6
(b) Amendments; Waivers ............................................. 6
(c) Severability .................................................... 6
(d) Counterparts .................................................... 6
(e) Notices ......................................................... 6
(f) Headings, References ............................................ 7
(g) Governing Law ................................................... 7
(h) Benefit and Binding Effect ...................................... 7
(i) Service of Process; Jurisdiction and Waiver ..................... 7
(j) Savings 8
Annex A - Address for Notices to Guarantor
Schedule I - Description of Credit Agreement
HOLDINGS GUARANTY
HOLDINGS GUARANTY (this "GUARANTY") dated as of July 27, 2004, is
given by Atlas Air Worldwide Holdings, Inc. (the "GUARANTOR"), a Delaware
corporation, with respect to each and every obligation of Atlas Air, Inc. (the
"COMPANY") under the Fifth Amended and Restated Credit Agreement, dated as of
July 27, 2004, among the Guarantor, the Company, the Lenders from time to time
party thereto and Deutsche Bank Trust Company Americas, as administrative agent
(the "AGENT") (as amended, modified or supplemented from time to time, the
"CREDIT AGREEMENT") and the other Loan Documents, and is given to and for the
benefit of the Agent and the Lenders (collectively, the "GUARANTEED
BENEFICIARIES" and individually, a "GUARANTEED BENEFICIARY"). All capitalized
terms used herein shall, unless otherwise defined herein, have the respective
meanings set forth in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, as of the date hereof the Guarantor owns 100% of the issued
and outstanding capital stock of the Company;
WHEREAS, the Guarantor entered into the Holdings Guaranty dated as
of October 31, 2002 (the "Original Holdings Guaranty"), in connection with the
Existing Credit Agreement;
WHEREAS, it is a condition precedent to the effectiveness of the
Credit Agreement, that the Guarantor guarantee the obligations of the Company
under the Credit Agreement and the other Loan Documents in favor of the
Guaranteed Beneficiaries and that the Guarantor shall have executed and
delivered to the Agent this Guaranty;
WHEREAS, the Guarantor is entering into this Guaranty in order to
induce the Agent and each Lender to enter into the Credit Agreement;
WHEREAS, the Guarantor will obtain benefits from the Company
entering into the Credit Agreement, and accordingly, desires to execute this
Guaranty in order to satisfy the conditions described in the second preceding
paragraph and to amend and restate the Original Holdings Guaranty in the form of
this Guaranty;
NOW, THEREFORE, the Guarantor hereby agrees on behalf of and for the
benefit of the Guaranteed Beneficiaries as follows:
SECTION 1. GUARANTY. The Guarantor does hereby unconditionally and
irrevocably guarantee, as primary obligor and not merely as surety, the
following (such obligations being the "GUARANTEED OBLIGATIONS "):
(a) to each Guaranteed Beneficiary, the full and prompt payment
when, where and as due, of each and every payment obligation of the
Company to each such Guaranteed Beneficiary under the Credit Agreement and
each other Loan Document; and
(b) to each Guaranteed Beneficiary entitled thereto under the terms
of any Loan Document, the full and timely performance and observance by
the Company of each and all other covenants and agreements not described
in clause (a) above required to be performed or observed by the Company
under such Loan Document.
Without limiting the generality of the foregoing, the Guarantor's
liability hereunder shall extend to all obligations that constitute part of the
Guaranteed Obligations and would be owed by the Company under the Loan Documents
but for the fact that they are unenforceable or not allowable due to the
existence of a bankruptcy, suspension of payments, reorganization or similar
proceeding involving the Company.
SECTION 2. GENERAL PROVISIONS RELATING TO THE GUARANTY.
(a) Each and every default in any payment or performance of any
obligation of the Company under any Loan Document to which the Company is a
party shall give rise to a separate claim and cause of action hereunder to the
extent that each such default by the Company would give rise to a separate claim
or cause of action under the applicable Loan Document, and separate claims or
suits may be made and brought, as the case may be, hereunder as each such
default occurs.
(b) This Guaranty shall be a continuing, absolute, irrevocable and
unconditional guaranty of payment and performance and not of collection and
shall remain in full force and effect until each and all of the obligations of
the Company guaranteed hereunder shall have been fully and indefeasibly
discharged or performed in accordance with the terms and provisions of the Loan
Documents (and no longer subject to recoupment, preference claims or clawback
under applicable bankruptcy, insolvency or similar laws), and the Guarantor
shall have fully discharged or performed all of its obligations under this
Guaranty to each Guaranteed Beneficiary.
(c) This Guaranty and the liability of the Guarantor provided for in
Section 1 hereunder shall remain in full force and effect irrespective of:
(i) the legality, validity, regularity or enforceability, or the
absence of any thereof, of any Loan Document (or other document or
agreement) or of any assignment, amendment, modification, or termination
of any Loan Document (or other document or agreement), and shall in no way
be affected or impaired by (and no notice to the Guarantor shall be
required in respect of) any compromise, waiver, settlement, release,
renewal, extension, indulgence, amendment, addition, deletion, change or
modification with respect to, or release of any security for any of the
obligations or liabilities of the Company under, any Loan Document or any
redelivery, repossession, sale, transfer or other disposition, surrender
or destruction of, or other event or circumstance with respect to, the
Financed Aircraft (or any interest therein or portion thereof), in whole
or part; or
(ii) the transfer, assignment, subletting, or mortgaging, or the
purported transfer, assignment, subletting, or mortgaging, of all or any
part of the interest of any Guaranteed Beneficiary or the Company in the
Financed Aircraft (or any interest therein or portion thereof) in
accordance with the Loan Documents; or
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(iii) any absence or defect or failure of title or lack of
recordation or registration with respect to any Guaranteed Beneficiary's
or the Company's interest in the Financed Aircraft (or any interest
therein or portion thereof); or
(iv) any failure of delivery of, or loss of perfection of any
security interest with respect to, any portion of the Financed Aircraft
(or any interest therein or portion thereof); or
(v) any matter relating to any agreement or approval (or the absence
thereof) in connection with the Financed Aircraft (or any interest therein
or portion thereof); or
(vi) any failure, neglect or omission on the part of any Guaranteed
Beneficiary or any other Person to give the Guarantor notice of the
occurrence of any Default or Event of Default or Potential Event of
Default or Event of Default or to realize upon any collateral held by any
Guaranteed Beneficiary or any other Person with respect to any obligations
or liabilities of the Company, or to provide for any insurance on the
Financed Aircraft (or any interest therein or portion thereof), or to
establish or maintain a security or other interest in the Financed
Aircraft (or any interest therein or portion thereof) or any collateral
provided under any Loan Document or to establish or maintain the priority
or perfection of any thereof; or
(vii) any defect in the compliance with specifications, warranties
or any insurance policy or the condition, design, operation or fitness for
use of, or any damage to or loss or destruction of, or any interruption or
cessation in the use of, the Financed Aircraft (or any interest therein or
any portion thereof) by the Company or any other Person for any reason
whatsoever (including, without limitation, any governmental prohibition or
restriction, condemnation, requisition, seizure or any other act on the
part of any governmental or military authority, or any act of God or of
the public enemy) regardless of the duration thereof (even though such
duration would otherwise constitute a frustration under any Loan
Document), whether or not without fault on the part of the Company or any
other Person; or
(viii) any merger, consolidation or other restructuring or
termination of the corporate structure, reorganization or transaction with
respect to the Company or the Guarantor into, with or in respect of, any
other Person or any sale, lease, assignment or transfer of any of the
assets of the Company or Guarantor to any other Person; or
(ix) any disposition by the Guarantor of its interest in the
Company, or any change in the ownership of any shares of capital stock of
the Guarantor or the Company, or any change, restructuring or termination
of the corporate structure or existence of the Company; or
(x) the imposition of any Tax or other charge against the Company,
the Guarantor or any other Person; or
(xi) any exchange, release or nonperfection, or lapse of perfection,
of any security for any Guaranteed Obligation or the acceptance of any
security therefor; or
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(xii) any bankruptcy, insolvency, winding up, dissolution,
liquidation, receivership, or reorganization of, or similar proceedings
affecting, the Company or the Guarantor or its assets or any resulting
release or discharge of any of the Guaranteed Obligations (except to the
extent resulting from performance thereof); or
(xiii) any regulatory change or other governmental action (whether
or not adverse); or
(xiv) any partial payment or performance of the Guaranteed
Obligations (whether as a result of the exercise of any right, remedy,
power or privilege or otherwise) that is accepted or received (except,
subject to paragraph (f) of this Section 2, to the extent of such payment
or performance); or
(xv) any other occurrence or circumstance whatsoever, whether
similar or dissimilar to the foregoing, whether or not foreseeable, that
might otherwise constitute a legal or equitable defense or discharge of
the liabilities of a guarantor or surety or that might otherwise limit
recourse against the Guarantor.
The obligations of the Guarantor set forth herein constitute the
full recourse obligations of the Guarantor enforceable against it to the full
extent of all its assets and properties.
(d) The obligation and liability of the Guarantor hereunder shall
not be impaired, diminished, abated or otherwise affected (i) by any set-off,
defense or counterclaim that the Company, the Guarantor or any other Person may
have or claim to have, at any time or from time to time, or (ii) by the
commencement by or against the Company, the Guarantor or any other Person of any
proceedings under any bankruptcy or insolvency law or laws relating to the
relief of debtors, readjustment of indebtedness, reorganizations, arrangements,
compositions or extension or other similar laws.
(e) It is the intent and purpose hereof that the Guarantor shall not
be entitled to and does hereby waive, to the fullest extent permitted by
applicable law, any and all defenses available to guarantors, sureties and other
secondary parties at law or in equity. Without limiting the generality of the
foregoing, the Guarantor hereby waives notice of acceptance of this Guaranty and
of the nonperformance by the Company, diligence, presentment, protest, dishonor,
demand for payment from the Company or any other Person and notice of nonpayment
or failure to perform on the part of the Company and all other notices
whatsoever. The guaranty hereunder is a guaranty of payment, performance and
compliance and not of collectability only. The Guarantor specifically agrees
that it shall not be necessary, and the Guarantor shall not require, before or
as a condition of enforcing the liability of the Guarantor under this Guaranty
or requiring payment or performance of the Guaranteed Obligations by the
Guarantor hereunder, or at any time thereafter, that any of the Guaranteed
Beneficiaries (i) file suit or proceed to obtain or assert a claim for personal
judgment against any Person that may be liable for any Guaranteed Obligation;
(ii) make any other effort to obtain payment or performance of any Guaranteed
Obligation from the Company or any other Person that may be liable for such
Guaranteed Obligation; (iii) foreclose against or seek to realize upon any
security now or hereafter existing for such Guaranteed Obligation; (iv) exercise
or assert any other right or remedy to which any of the Guaranteed Beneficiaries
is or may be entitled in connection with any Guaranteed Obligation or any
security or other guaranty therefor; (v) assert or
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file any claim against the assets of the Company or any other Person liable for
any Guaranteed Obligation; or (vi) join the Company or any other Person as a
party to any proceeding for the enforcement of any provision of this Guaranty.
Without limiting the foregoing, it is understood that repeated and successive
demands may be made and recoveries may be had hereunder as and when, from time
to time, a Event of Default shall have occurred and be continuing or a
Guaranteed Obligation shall otherwise arise (in either case, a "RECOVERY
EVENT"), and that, notwithstanding recovery hereunder for or in respect of any
such Recovery Event, this Guaranty shall remain in force and effect and shall
apply to each and every subsequent Recovery Event. The Guarantor further agrees
that, without limiting the generality of this Guaranty, if any Recovery Event
shall have occurred and be continuing and any Guaranteed Beneficiary (or any
assignee thereof) is prevented by applicable law from exercising its remedies
under any applicable Loan Document for any reason, such Guaranteed Beneficiary
(or any assignee thereof) shall be entitled to receive hereunder from the
Guarantor, upon demand therefor, the sums that otherwise would have been due
from the Company had such remedies been exercised. If the Guarantor makes any
payment or performs any obligation hereunder in respect of any of the
obligations to be performed by the Company, the Guarantor shall become
subrogated to the extent of such payment or performance to the rights of the
Guaranteed Beneficiary under the relevant agreement to which the Company is a
party against the Company in respect of such obligations and any collateral
security or guaranty held by or for the benefit of such Guaranteed Beneficiary
for the payment of such obligations; PROVIDED, HOWEVER, that such rights of
subrogation shall not commence until such time as the Company or the Guarantor,
as the case may be, shall have paid and performed each and every Guaranteed
Obligation to each Guaranteed Beneficiary and the Guarantor shall have fully
performed its obligations hereunder.
(f) The guaranty hereunder shall not be deemed to have terminated
and shall continue to be effective (or if terminated for any reason shall be
reinstated, as the case may be), if at any time payment, or any part thereof, of
any of the obligations hereunder or under any Loan Document is rescinded and
must be (and actually is) returned by any Guaranteed Beneficiary to the Person
who made the payment or on behalf of whom the payment was made upon the
insolvency, bankruptcy or reorganization (or similar event) with respect to the
Company, the Guarantor or otherwise, all as though such payment had not been
made.
(g) If the Guarantor fails to pay any amount hereunder when due to
any Guaranteed Beneficiary, the Guarantor shall pay to such Guaranteed
Beneficiary interest, on demand, on such amount at the appropriate rate
described in Section 2.2E of the Credit Agreement.
(h) The Guarantor further agrees to pay to each Guaranteed
Beneficiary any and all costs and expenses, including reasonable legal fees
(which shall include allocated costs of internal counsel) and disbursements,
incurred by such party in connection with enforcing its rights under this
Guaranty.
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SECTION 3. COVENANTS OF GUARANTOR. The Guarantor hereby covenants
for the benefit of each Guaranteed Beneficiary as follows:
(a) NO ASSIGNMENT BY GUARANTOR. Except as expressly permitted
herein, the Guarantor agrees that it shall not assign any of its rights or
obligations hereunder without the prior written consent of the Agent, and the
Requisite Lenders.
(b) DEFAULT UNDER LOAN DOCUMENTS. The Guarantor agrees that it shall
not take any action or fail to take any action that would cause a Potential
Event of Default or Event of Default under any of the other Loan Documents.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF GUARANTOR. The
Guarantor makes, for the benefit of each Guaranteed Beneficiary, each of the
representations and warranties made in the Credit Agreement by the Guarantor as
to its assets, financial condition, operations, organization, legal status,
business, and the Loan Documents to which it is a party.
SECTION 5. MISCELLANEOUS.
(a) WAIVERS; CUMULATIVE EFFECT. A waiver by any Guaranteed
Beneficiary of any right or remedy hereunder on any one occasion shall not be
construed as a bar to any right or remedy that such Guaranteed Beneficiary (or
any other Guaranteed Beneficiary) would otherwise have had on any future
occasion with regard to any subsequent breach. No failure to exercise nor any
delay in exercising on the part of any Guaranteed Beneficiary any right, power,
or privilege hereunder, shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, power, or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right, power, or
privilege. The rights and remedies herein provided are cumulative and may be
exercised singularly or concurrently, and are not exclusive of any rights and
remedies provided by law or by the Credit Agreement or the other Loan Documents.
(b) AMENDMENTS; WAIVERS. This Guaranty may not be terminated,
amended, supplemented, waived, or modified orally, but may be terminated,
amended, supplemented, waived, or modified upon the prior written consent of the
Guarantor, the Agent, and the Requisite Lenders.
(c) SEVERABILITY. Any provision of this Guaranty that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(d) COUNTERPARTS. This Guaranty may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.
(e) NOTICES. Any notice to the Guarantor hereunder may be directed
to the Guarantor at its address set forth in Annex A, or to such other address
as the Guarantor may designate by notice given to the other parties hereto.
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(f) HEADINGS, REFERENCES. The section and paragraph headings in this
Guaranty are for convenience of reference only and shall not modify, define,
expand or limit any of the terms or provisions hereof.
(g) GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK, EXCLUDING (TO THE GREATEST EXTENT PERMISSIBLE BY LAW) ANY
RULE OF LAW THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF NEW YORK. THIS GUARANTY HAS BEEN DELIVERED IN THE STATE
OF NEW YORK.
(h) BENEFIT AND BINDING EFFECT. The terms of this Guaranty shall be
binding upon the Guarantor, and shall inure to the benefit of the Guarantor,
each Guaranteed Beneficiary, and their respective successors and permitted
assigns (to the extent permitted hereunder and under the Loan Documents).
(i) SERVICE OF PROCESS; JURISDICTION AND WAIVER. The Guarantor (A)
hereby irrevocably submits to the nonexclusive jurisdiction of (i) the Supreme
Court of the State of New York, New York County (without prejudice to the right
of any party to remove to the United States District Court for the Southern
District of New York) and (ii) the United States District Court for the Southern
District of New York for the purposes of any suit, action, or other proceeding
arising out of this Guaranty or the subject matter hereof brought by any
Guaranteed Beneficiary or its successors or permitted assigns, (B) hereby
irrevocably agrees that all claims in respect of such suit, action or proceeding
may be heard and determined in such New York State court or, to the fullest
extent permitted by applicable law, in such Federal court, and (C) to the extent
permitted by applicable law, hereby irrevocably waives, and agrees not to
assert, by way of motion, as a defense, or otherwise, in any such suit, action,
or proceeding any claim that it is not personally subject to the jurisdiction of
the above-named courts, that the suit, action, or proceeding is brought in an
inconvenient forum, that the venue of the suit, action, or proceeding is
improper, or that this Guaranty or the subject matter hereof may not be enforced
in or by such court. THE GUARANTOR WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY
SUIT, ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
GUARANTY. A final judgment obtained in respect of any suit, action, or
proceeding referred to in this Section 5(i) shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any manner as
provided by applicable law. The Guarantor hereby consents to service of process
in connection with the subject matter specified in the first sentence of this
Section 5(i) in connection with the above- mentioned courts by registered mail,
FedEx, DHL, or similar courier at the address to which notices to it are to be
given as provided in Annex A hereto, it being agreed that service in such manner
shall constitute valid service upon the Guarantor and its successors and assigns
in connection with any such suit, action, or proceeding only; PROVIDED, HOWEVER,
that nothing in this Section 5(i) shall affect the right of any of the
Guaranteed Beneficiaries or their successors or assigns to serve legal process
in any other matter permitted by law or affect the right of any of the
Guaranteed Beneficiaries or their successors or assigns to bring any suit,
action, or proceeding against the Guarantor or its properties in the courts of
other jurisdictions.
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(j) SAVINGS. Each Guaranteed Beneficiary (by its acceptance of the
benefits hereof) and the Guarantor hereby confirms that it is its intention that
this Guaranty not constitute a fraudulent transfer or conveyance for purposes of
the Bankruptcy Code, the Uniform Fraudulent Transfer Act or any similar federal
or state law. To effectuate the foregoing intention, each Guaranteed Beneficiary
and the Guarantor hereby irrevocably agrees that the Guaranteed Obligations
guaranteed by the Guarantor under this Guaranty shall be limited to such amount
as will, after giving effect to such maximum amount and all of the Guarantor's
other (contingent or otherwise) liabilities that are relevant under such laws
(but excluding, to the maximum extent permitted by applicable law, any
liabilities of the Guarantor arising under any indebtedness that is subordinated
to the Guaranteed Obligations or any obligations under this Guaranty), result in
the Guaranteed Obligations of the Guarantor in respect of such maximum amount
not constituting a fraudulent transfer or conveyance.
* * * * *
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
executed as of the day and year first written above for the benefit of the
parties named herein.
ATLAS AIR WORLDWIDE HOLDINGS, INC.
By: /s/ William C. Bradley
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Name: William C. Bradley
Title: Vice President & Treasurer
ANNEX A
ADDRESS FOR NOTICES TO GUARANTOR
ATLAS AIR WORLDWIDE HOLDINGS, INC.
2000 Westchester Avenue
Purchase, New York 10577-2543
Attention: Treasurer/Corporate Finance
(i)