EXHIBIT 10.5.3
EXECUTION COPY
SUBSIDIARIES GUARANTY
================================================================================
GUARANTY
Dated as of July 27, 2004
given by
CERTAIN SUBSIDIARIES OF ATLAS AIR WORLDWIDE HOLDINGS, INC.
================================================================================
TABLE OF CONTENTS
PAGE
----
SECTION 1. GUARANTY ..................................................... 1
SECTION 2. GENERAL PROVISIONS RELATING TO THE GUARANTY .................. 2
SECTION 3. COVENANTS OF THE GUARANTORS .................................. 5
(a) No Assignment by Guarantor .................................. 5
(b) Default Under Loan Documents ................................ 6
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS ............. 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 Lease Agreement
SUBSIDIARIES GUARANTY
SUBSIDIARIES GUARANTY (this "GUARANTY") dated as of July 27, 2004,
is given by each of the undersigned subsidiaries of Atlas Air Worldwide
Holdings, Inc. (each a "GUARANTOR" and collectively, the "GUARANTORS"), with
respect to each and every obligation of the Lessee under the Amended and
Restated Lease Agreement, dated as of July 27, 2004, and more particularly
described on Schedule I hereto (as amended, modified or supplemented from time
to time, the "Lease Agreement") and the other Loan Documents, and is given to
and for the benefit of the Lessor, 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 Lease Agreement.
W I T N E S S E T H:
WHEREAS, it is a condition precedent to the effectiveness of the
Lease Agreement, that each Guarantor guarantee the obligations of the Lessor
under the Lease Agreement and the other Loan Documents in favor of the
Guaranteed Beneficiaries and that each Guarantor shall have executed and
delivered to the Agent this Guaranty;
WHEREAS, each Guarantor is entering into this Guaranty in order to
induce the Agent and each Lender to enter into the Credit Agreement;
WHEREAS, each Guarantor will obtain benefits from Lessee entering
into the Lease Agreement, and accordingly, desires to execute this Guaranty to
satisfy the conditions described in the preceding paragraph;
NOW, THEREFORE, each Guarantor hereby agrees on behalf of and for
the benefit of the Guaranteed Beneficiaries as follows:
SECTION 1. GUARANTY. Each Guarantor does hereby unconditionally and
irrevocably jointly and severally 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 Lessee
to each such Guaranteed Beneficiary under the Lease Agreement and each
other Loan Document, including, without limitation, Rent; and
(b) to each Guaranteed Beneficiary entitled thereto under the terms
of any Loan Document, the full and timely performance and observance by
the Lessee of each and all other covenants and agreements not described in
clause (a) above required to be performed or observed by the Lessee under
such Loan Document.
Without limiting the generality of the foregoing, each Guarantor's
liability hereunder shall extend to all obligations that constitute part of the
Guaranteed Obligations and would be owed by the Lessee 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 Lessee.
SECTION 2. GENERAL PROVISIONS RELATING TO THE GUARANTY
(a) Each and every default in any payment or performance of any
obligation of the Lessee under any Loan Document to which the Lessee is a party
shall give rise to a separate claim and cause of action hereunder to the extent
that each such default by the Lessee 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 Lessee 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 each 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 Guarantors 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) or any subleasing or
further subleasing of the Aircraft or Spare Engines (or any interest
therein or portion thereof), and shall in no way be affected or impaired
by (and no notice to the Guarantors 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
Lessee 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 Aircraft or Spare Engines (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 Lessee in the
Aircraft or Spare Engines (or any interest therein or portion thereof) in
accordance with the Loan Documents; or
(iii) any absence or defect or failure of title or lack of
recordation or registration with respect to any Guaranteed Beneficiary's
or the Lessee's interest in the Aircraft or Spare Engines (or any interest
therein or portion thereof); or
-2-
(iv) any failure of delivery of, or loss of perfection of any
security interest with respect to, any portion of the Aircraft or Spare
Engines (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 Aircraft or Spare Engines (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 Guarantors notice of the
occurrence of any Default or Lease 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 Lessee, or to provide for any insurance on the
Aircraft or Spare Engines (or any interest therein or portion thereof), or
to establish or maintain a security or other interest in the Aircraft or
Spare Engines (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 Aircraft or Spare Engines (or any interest
therein or any portion thereof) by the Lessee 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 Lessee
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 Lessee or any Guarantor into, with or in respect of, any
other Person or any sale, lease, assignment or transfer of any of the
assets of the Lessee or any Guarantor to any other Person; or
(ix) any disposition by any Guarantor of its interest in the Lessee,
or any change in the ownership of any shares of capital stock of such
Guarantor or the Lessee, or any change, restructuring or termination of
the corporate structure or existence of the Lessee; or
(x) the imposition of any Tax or other charge against the Lessee,
any 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 therefore; or
(xii) any bankruptcy, insolvency, winding up, dissolution,
liquidation, receivership, or reorganization of, or similar proceedings
affecting, the Lessee or any 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
-3-
(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 such Guarantor.
The obligations of each Guarantor set forth herein constitute the
full recourse obligations of each Guarantor enforceable against it to the full
extent of all its assets and properties.
(d) The obligation and liability of each Guarantor hereunder shall
not be impaired, diminished, abated or otherwise affected (i) by any set-off,
defense or counterclaim that the Lessee, any 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 Lessee, any 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 each Guarantor shall
not be entitled to and does hereby waive, to the fullest extent permitted by
applicable law, any and all defenses available to such Guarantor, sureties and
other secondary parties at law or in equity. Without limiting the generality of
the foregoing, each Guarantor hereby waives notice of acceptance of this
Guaranty and of the nonperformance by the Lessee, diligence, presentment,
protest, dishonor, demand for payment from the Lessee or any other Person and
notice of nonpayment or failure to perform on the part of the Lessee and all
other notices whatsoever. The guaranty hereunder is a guaranty of payment,
performance and compliance and not of collectability only. Each Guarantor
specifically agrees that it shall not be necessary, and such Guarantor shall not
require, before or as a condition of enforcing the liability of such Guarantor
under this Guaranty or requiring payment or performance of the Guaranteed
Obligations by such 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 Lessee 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 therefore; (v) assert or
file any claim against the assets of the Lessee or any other Person liable for
any Guaranteed Obligation; or (vi) join the Lessee 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 Lease Event of Default shall have occurred and
-4-
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. Each
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 such Guarantor, upon demand therefor, the sums that otherwise
would have been due from the Lessee had such remedies been exercised. If any
Guarantor makes any payment or performs any obligation hereunder in respect of
any of the obligations to be performed by the Lessee, such 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 Lessee is a
party against the Lessee 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 subsequent to the end of the Term
as the Lessee or such Guarantor, as the case may be, shall have paid and
performed each and every Guaranteed Obligation to each Guaranteed Beneficiary
and such 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
Lessee, any Guarantor or otherwise, all as though such payment had not been
made.
(g) If any Guarantor fails to pay any amount hereunder when due to
any Guaranteed Beneficiary, such Guarantor shall pay to such Guaranteed
Beneficiary interest, on demand, on such amount at the appropriate rate
described in Section 2.2D of the Credit Agreement.
(h) Each 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.
SECTION 3. COVENANTS OF THE GUARANTORS. Each Guarantor hereby
covenants for the benefit of each Guaranteed Beneficiary as follows:
(a) NO ASSIGNMENT BY GUARANTOR. Except as expressly permitted
herein, each Guarantor agrees that it shall not assign any of its rights or
obligations hereunder without the prior written consent of the Lessor, the
Agent, and the Requisite Lenders. Each Guarantor acknowledges that the Lessor
intends to mortgage, grant, and assign all of the Lessor's right, title, and
interest in and to this Guaranty and such Guarantor's obligations hereunder to
the Agent, as administrative agent for and representative of the Lenders, as
security for the Secured
-5-
Obligations (as defined in the relevant Aircraft Chattel Mortgage), and each
Guarantor hereby consents to such mortgage, grant, and assignment.
(b) DEFAULT UNDER LOAN DOCUMENTS. Each Guarantor agrees that it
shall not take any action or fail to take any action that would cause a Default
or Lease Event of Default under any Lease or a Potential Event of Default or
Event of Default under any of the other Loan Documents.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE GUARANTORS. Each
Guarantor makes, for the benefit of each Guaranteed Beneficiary, each of the
representations and warranties made in the Lease Agreement by each 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 Lease 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
each Guarantor, the Lessor, 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 Guarantors hereunder may be directed
to each Guarantor at its address set forth in Annex A, or to such other address
as each Guarantor may designate by notice given to the other parties hereto.
-6-
(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 each Guarantor, and shall inure to the benefit of each 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. Each 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. EACH 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. Each 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 such 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 such Guarantor or its properties in the courts of
other jurisdictions.
-7-
(j) SAVINGS. Each Guaranteed Beneficiary (by its acceptance of the
benefits hereof) and each 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 each Guarantor hereby irrevocably agrees that the
Guaranteed Obligations guaranteed by each Guarantor under this Guaranty shall be
limited to such amount as will, after giving effect to such maximum amount and
all of such 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 a Guarantor arising under any indebtedness
that is subordinated to the Guaranteed Obligations or any obligations under this
Guaranty), result in the Guaranteed Obligations of such Guarantor in respect of
such maximum amount not constituting a fraudulent transfer or conveyance.
* * * * *
-8-
IN WITNESS WHEREOF, each 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.
POLAR AIR CARGO, INC.
By: /s/ William C. Bradley
-----------------------------
Name: William C. Bradley
Title: Vice President & Treasurer
AIRLINE ACQUISITION CORP. I
By: /s/ William C. Bradley
-----------------------------
Name: William C. Bradley
Title: Vice President & Treasurer
ANNEX A
ADDRESS FOR NOTICES TO THE GUARANTORS
POLAR AIR CARGO, INC.
c/o Atlas Air Worldwide Holdings, Inc.
2000 Westchester Avenue
Purchase, New York 10577-2543
Attention: Treasurer/Corporate Finance
AIRLINE ACQUISITION CORP I
c/o Atlas Air Worldwide Holdings, Inc.
2000 Westchester Avenue
Purchase, New York 10577-2543
Attention: Treasurer/Corporate Finance
SCHEDULE I
Lease Agreement, dated as of April 25, 2000 and amended and restated
as of July 27, 2004, between the Lessor and the Lessee, as supplemented by Lease
Supplement No. 1, dated as of July 27, 2004, which were recorded together as one
instrument by the Federal Aviation Administration (the "FAA") on July 27, 2004,
as Conveyance No. [___________].
(i)