EXHIBIT 10.7.6
GUARANTY 32838
GUARANTY 32838, dated as of July 27, 2004 (this "GUARANTY"), of
ATLAS AIR WORLDWIDE HOLDINGS, INC., a Delaware corporation (together with its
successors and assigns, "HOLDINGS") in favor of TUOLUMNE RIVER AIRCRAFT FINANCE,
INC., a Delaware corporation, as Lessor under the Lease (as defined below)
(together with its successors and assigns, the "GUARANTEED PARTY").
WHEREAS, the Guaranteed Party is a party to that certain Lease
Agreement (MSN 32838), dated as of July 16, 2002 (as supplemented by the Lease
Supplement No. 1 dated July 17, 2002, the "LEASE"), between the Guaranteed
Party, as Lessor, and Atlas Air, Inc., as Lessee ("ATLAS");
WHEREAS, the Guaranteed Party is a party to that certain Lease Tax
Indemnity Agreement, dated as of July 16, 2002 (the "LEASE TIA"), between
Guaranteed Party, as Lessor, and Atlas, as Lessee;
WHEREAS, the Guaranteed Party is a party to that certain Amendment
Agreement (MSN 32838) to the Lease, dated as of August 1, 2003 (the "LEASE
AMENDMENT"), between Guaranteed Party and Atlas;
WHEREAS, Guaranteed Party is a party to Amendment No. 1 to the Lease
T1A, dated as of August 1, 2003 (the "TIA AMENDMENT"), between Guaranteed Party
and Atlas;
WHEREAS, Holdings is an Affiliate of Atlas and it is of direct
benefit to Holdings and is in the furtherance of Holdings' business interests
that Guaranteed Party enter into the Lease Amendment and TIA Amendment; and
WHEREAS, as an inducement for the Guaranteed Party's willingness to
enter into the Lease Amendment and TIA Amendment Holdings has agreed to
guarantee the obligations of Atlas arising under (i) the Lease, as amended by
the Lease Amendment, (ii) the Lease TIA, as amended by the TIA Amendment and
(iii) each Other Agreement (as defined in the Lease, as amended by the Lease
Amendment). Capitalized terms not otherwise defined herein shall have the
meaning set forth in the Lease, as amended by the Lease Amendment;
NOW, THEREFORE, in consideration of the premises and covenants
hereinafter contained and for other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, Holdings hereby agrees
for the benefit of the Guaranteed Parts and the Guaranteed Party hereby
acknowledges:
SECTION 1. GUARANTY BY HOLDINGS. (a) Holdings hereby irrevocably and
unconditionally guarantees, as primary obligor and not as a surety, (i) the due
and punctual performance by Atlas of all of its obligations under (1) the Lease,
as amended by the Lease Amendment and (2) the Lease TIA, as amended by the TIA
Amendment, and (3) each Other Agreement (collectively, as amended, supplemented
or otherwise modified from time to time, the "OPERATIVE DOCUMENTS"), (ii) the
due, punctual, prompt and complete payment when due of any and all amounts which
are from time to time due and payable by Atlas pursuant to the provisions of the
Operative Documents after any applicable grace periods or notice requirements,
if any, according to the terms thereof and (iii) all sums for which Atlas is or
at any time becomes liable by reason of any breach of or failure to perform or
observe, or any other noncompliance with, any covenant, condition, agreement or
other obligation to be performed by Atlas under any Operative Document, or the
falsity of any representation or warranty of Atlas in any Operative Document
(each of the foregoing (i), (ii) and (iii), including all interest accruing
thereon after the commencement of any bankruptcy, insolvency, reorganization or
similar proceeding, regardless of whether or not a claim can be made or realized
therefor, collectively, the "OBLIGATIONS"). Holdings agrees that this Guaranty
is a guarantee of performance and payment and not of collection. Holdings hereby
agrees that its obligations hereunder shall be primary, absolute and
unconditional, irrespective of, and unaffected by: (i) any difference between
the law selected as the governing law of the Operative Documents and the law
selected as the governing law of this Guaranty; (ii) the existence, value or
condition of, or failure by the Guaranteed Party to perfect any lien against the
Aircraft or the release of any lien against the Aircraft, including the
Airframe, any Engine or any Part thereof, with respect to the payment and
performance by Atlas of its performance and payment obligations under the
Operative Documents or any action, or the absence of any action, by the
Guaranteed Party in respect thereof (including, without limitation, the release
of any such security); (iii) the insolvency of Atlas, Holdings or any Affiliate
thereof; (iv) the validity, regularity, legality or enforceability of any
Operative Document, any of the Obligations or any collateral security or other
guaranty therefor at any time or from time to time held by the Guaranteed Party;
(v) any defense, offset or counterclaim which may at any time be available to or
be asserted by Atlas or Holdings against the Guaranteed Party; (vi) any
rejection of the Lease, as amended by the Lease Amendment or any related
document by Atlas in any bankruptcy, reorganization or similar proceedings
related thereto; (vii) any extension, modification (including any increase),
indulgence or renewal with respect to any Obligations; (viii) any limitation of
the liability of Atlas under any Operative Document that may now or hereafter be
imposed by any statute, regulation or rule of law, unless such limitation
applies to Holdings by mandatory provisions of law; (ix) any waiver, compromise,
consent, delay or other action or inaction or any exercise or non-exercise of
any right, remedy or power with respect to Atlas or any Affiliate thereof (x)
any change in the structure, ownership or control of Atlas, Holdings or any
Affiliate thereof; (xi) any bankruptcy, reorganization, arrangement, adjustment,
composition, liquidation, dissolution or similar proceeding with respect to
Atlas, Holdings or any Affiliate thereof; (xii) the appointment of a custodian,
receiver, trustee or other officer with similar powers with respect to Atlas or
Holdings or any substantial part of their respective properties or (xiii) any
other event or circumstance whatsoever which may constitute, or might be
construed to constitute, an equitable or legal discharge of a surety or
Holdings, it being the purpose and intent of Holdings that this Guaranty and
Holdings' obligations hereunder shall remain in full force and effect and be
binding upon Holdings and its successors until the Obligations and the
obligations of Holdings under this Guaranty shall have been satisfied by
indefeasible payment in full. Holdings waives expressly and irrevocably, on
behalf of itself and any successors or permitted assigns (including any surety)
any and all notice of the creation, renewal, extension or accrual of any of the
obligations and notice of or proof of reliance by the Guaranteed Party upon this
Guaranty or acceptance of this Guaranty. Any and all of the Obligations shall
conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived in reliance upon this Guaranty and all dealings
between Atlas or Holdings and the Guaranteed Party shall likewise be
conclusively presumed to have been had or consummated in reliance upon this
Guaranty. Except for the notice provisions specifically set forth in the
applicable Operative Documents with respect to Atlas, Holdings hereby waives
diligence, presentment, protest, demand for payment and notice of default or
nonpayment to or upon Atlas or Holdings with respect to the performance and the
payment obligations arising hereunder or pursuant to the Operative Documents.
Holdings further agrees that its guaranty of the Obligations shall remain in
full force and effect notwithstanding, and it shall not be required to consent
to any amendment or modification (including an increase in the Obligations) of,
or waiver, consent or extension with respect to the Operative Documents that may
be made or given as provided therein. Holdings covenants that this Guaranty will
not be discharged except by complete payment and performance of the Obligations.
(b) Holdings shall be subrogated to all rights of the Guaranteed
Party in respect of any amounts paid by Holdings pursuant to the provisions of
this Guaranty; PROVIDED, HOWEVER, that Holdings shall be entitled to enforce, or
to receive any payments arising out of or based upon, such right of subrogation
only after all performance and amounts owed to the Guaranteed Party under the
Operative Documents have been satisfied and paid in full.
(c) This Guaranty shall continue to be effective or be reinstated,
as the case may be, if at any time any payment or performance of the Obligations
owed to the Guaranteed Party is rescinded or must otherwise be returned by the
Guaranteed Party upon the insolvency, bankruptcy or reorganization of Holdings
or Atlas or otherwise, all as though such payment or performance had not been
made.
SECTION 2. REPRESENTATIONS AND WARRANTIES. Holdings hereby
represents and warrants, for the benefit of the Guaranteed Party, that:
(a) Holdings is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of
incorporation, is duly qualified as a foreign corporation and
authorized to do business in each jurisdiction
where the failure to be so qualified or in good standing would have
a materially adverse effect on its business or financial condition,
is an Affiliate of Atlas and has the corporate power to own its
properties and carry on its business as now conducted;
(b) Holdings has full power, authority and legal right to
execute, deliver and perform this Guaranty, and Holdings has taken
all necessary corporate action to authorize such execution, delivery
and performance;
(c) this Guaranty has been duly authorized, executed and
delivered by Holdings and constitutes the legal, valid and binding
obligation of Holdings, enforceable in accordance with its terms,
except as such enforceability may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium, fraudulent
transfer and conveyance, and other similar laws affecting the rights
and remedies of creditors or the Guaranteed Party generally, and by
general principles of equity, whether considered in a proceeding at
law or in equity;
(d) no consent of any Person (including stockholders or any
trustee or holder of any obligations of Holdings), and no consent,
license, approval or authorization of, or registration or filing
with, any governmental authority, bureau or agency is required in
connection with the execution, delivery and performance of, and
payment under, this Guaranty, except such consents as have been duly
obtained; and
(e) the execution, delivery, performance and payment of this
Guaranty by Holdings do not and will not contravene any applicable
law, regulation, order or decree, the organizational or governing
documents of Holdings and do not and will not constitute a default
under any provision of any indenture, mortgage, contract or other
agreement to which Holdings is a party or by which any of its assets
may be bound, which default could have a material adverse effect on
Holdings' business or financial condition.
SECTION 3. NOTICES. All notices to Holdings under this Guaranty,
until Holdings furnishes written notice to the contrary, shall be in writing and
mailed, faxed or delivered to Atlas Air Worldwide Holdings, Inc., 2000
Westchester Avenue, Purchase, New York 10577-2543, and directed to the attention
of the General Counsel of Atlas Air Worldwide Holdings, Inc. (facsimile no.
(914) 701-8333).
SECTION 4. MISCELLANEOUS. (a) This Guaranty shall: (i) be binding
upon Holdings, its successors and permitted assigns (including any
debtor-in-possession on behalf of Holdings); (ii) inure to the benefit of, and
be enforceable by, the Guaranteed Party and its respective successors and
assigns and its Affiliates (and shall be transferable without Holdings'
consent by the Guaranteed Party in connection with the transfer of the
Obligations under and in accordance with the terms of the Operative Documents),
but shall not, and is not intended to, create rights in any other third parties;
(iii) not be waived, amended or modified without the written consent of the
Guaranteed Party; (iv) BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH. THE
LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW
YORK GENERAL OBLIGATIONS LAW) and (v) may not be assigned, delegated, pledged,
encumbered, hypothecated or transferred in whole or in part by Holdings
hereunder. Holdings irrevocably waives, to the fullest extent permitted by
applicable law, any and all right to trial by jury in any legal proceeding
arising out of or relating to this Guaranty or the transactions contemplated
hereby.
(b) No failure or delay on the part of the Guaranteed Party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any delay or 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
provided in and contemplated by this Guaranty are cumulative and not exclusive
of any rights or remedies provided by law or at equity.
(c) Holdings irrevocably agrees for the benefit of the Guaranteed
Party, by execution and delivery of this Guaranty, that any legal action or
proceeding brought against Holdings with respect to this Guaranty or the
transactions contemplated hereby or by the Operative Documents may be brought
and determined in the courts of the State of New York, New York County, or in
the United States District Court for the Southern District of New York located
in the Borough of Manhattan and Holdings hereby irrevocably accepts with regard
to any such action or proceeding, for itself and in respect of its properties,
generally and unconditionally, the non-exclusive jurisdiction of the aforesaid
courts. Nothing herein shall affect the right of the Guaranteed Party to serve
process in any manner permitted by law as to commence legal proceedings or
otherwise to proceed against Holdings in any other jurisdiction in which
Holdings may be subject to suit.
(d) Any provision of this Guaranty which is determined by competent
authority to be prohibited and 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.
SECTION 5. INTERPRETATION. The headings of the sections and other
subdivisions of this Guaranty are inserted for convenience only and shall not be
deemed to constitute a part hereof.
SECTION 6. ATTORNEY'S COST. Holdings agrees to pay all reasonable
attorney's fees and disbursements and all other actual costs and expenses that
may be incurred by the
Guaranteed Party in the enforcement of this Guaranty, whether or not an action
at law is commenced with respect hereto.
SECTION 7. WAIVER. In addition to the waivers contained in Section 4
hereof, Holdings waives, and agrees that it shall not at any time insist upon,
plead or claim any appraisal, valuation, stay, extension, marshaling of assets
or redemption laws, or exemption (which would not have been available to Atlas),
whether now or at any time hereafter in force, which will delay, prevent or
otherwise affect the performance by Holdings of its performance and payment
obligations under, or materially and adversely affect the enforcement by the
Guaranteed Party of, this Guaranty. Holdings hereby waives the benefit of all
provisions of law which conflict with the terms of this Guaranty. Holdings
represents, warrants and agrees that, as of the date of this Guaranty, its
obligations under this Guaranty are not subject to any offsets or defenses
against the Guaranteed Party.
SECTION 8. REINSTATEMENT. This Guaranty shall remain in full force
and effect and continue to be effective should any petition be filed by or
against Alias or Holdings for liquidation or reorganization, should Atlas or
Holdings become insolvent or make an assignment for the benefit of creditors or
should a receiver or trustee be appointed for all or any significant part of
such Atlas' or Holdings' assets, and shall continue to be effective or be
reinstated, as the case may be, if at any time payment and performance of the
Obligations, or any part thereof, pursuant to applicable law, is rescinded or
reduced in amount, or must otherwise be restored or returned by the Guaranteed
Party, whether as a "voidable preference", "fraudulent conveyance", or
otherwise, all as though such payment or performance had not been made, in the
event that any payment or performance, or any part thereof, is rescinded,
reduced, restored or returned, the related payment or obligation shall be
reinstated and deemed reduced only by such amount paid or performance received
and not so rescinded, reduced, restored or returned.
SECTION 9. CURRENCY OF PAYMENT. Any payment to be made by Holdings
shall be made on an after-tax basis in the same currency as designated for
payment in the Lease and such designation of the currency of payment is of the
essence.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be
executed by its duly authorized officer as of the day, month and year first
above written.
ATLAS AIR WORLDWIDE HOLDINGS, INC.
By: /s/ William C. Bradley
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Name: William C. Bradley
Title: Vice President & Treasurer
ACKNOWLEDGMENT AND ACCEPTANCE
Tuolumne River Aircraft Finance, Inc. hereby acknowledges and accepts the
provisions of the foregoing Guaranty.
TUOLUMNE RIVER AIRCRAFT FINANCE, INC.
By:
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Name:
Title:
[SIGNATURE PAGE FOR GUARANTY 32838]
IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be
executed by its duly authorized officer as of the day, month and year first
above written.
ATLAS AIR WORLDWIDE HOLDINGS, INC.
By:
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Name:
Title:
ACKNOWLEDGMENT AND ACCEPTANCE
Tuolumne River Aircraft Finance, Inc. hereby acknowledges and accepts the
provisions of the foregoing Guaranty.
TUOLUMNE RIVER AIRCRAFT FINANCE, INC.
By: /s/ Keith A. Helming
------------------------------
Name: Keith A. Helming
Title: Vice President
[SIGNATURE PAGE FOR GUARANTY 32838]
Schedule to Exhibit 10.7.6
The agreements listed below are substantially identical to this exhibit and are
not being filed separately as exhibits pursuant to instruction 2 to Regulation
S-K, Item 601.
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REGISTRATION MANUFACTURER'S SERIAL GUARANTOR AGREEMENT
NUMBER NUMBER(S)
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N418MC 32840 Atlas Air Worldwide AAWH Guaranty (N418MC) dated as of July
Holdings, Inc. 27, 2004.
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