EXHIBIT 10.2
GUARANTY AGREEMENT
FOR VALUE RECEIVED, and in consideration of credit given or to be
given, advances made or to be made, or other financial accommodation from time
to time afforded or to be afforded to PINNACLE AIRLINES, INC., a Georgia
corporation (hereinafter called the "Debtor"), by FIRST TENNESSEE BANK NATIONAL
ASSOCIATION, a national banking association organized and existing under the
laws of the United States, and having a place of business in Memphis, Tennessee
(hereinafter called the "Bank"), the undersigned PINNACLE AIRLINES CORP., a
Delaware corporation (hereinafter called the "Guarantor"), hereby jointly and
severally (if more than one), for themselves, their heirs, executors,
administrators and successors absolutely and unconditionally guarantee(s) the
full and prompt payment to the Bank, at maturity (whether by acceleration or
otherwise) and at all times thereafter, of any and all indebtednesses,
obligations and liabilities under that certain Revolving Credit Note dated as of
June 16, 2005, in the original principal amount of Seventeen Million Dollars
($17,000,000.00), executed by the Debtor and payable to the order of the Bank,
and under any other loan documents related thereto (collectively, the "Loan
Documents"), and all amendments, extensions, renewals, and modifications
thereof, together with all expenses, legal and/or otherwise (including court
costs and attorney's fees) incurred by the Bank in collecting or endeavoring to
collect such indebtedness or any part thereof, in protecting any collateral, and
in enforcing this Guaranty (all of which is collectively referred to as the
"Indebtedness"). The right of recovery, however, against the Guarantor (or each
of them, if more than one) is limited to Seventeen Million Dollars
($17,000,000.00) plus interest on all loans and/or advances hereunder and all
expenses hereinbefore mentioned.
THIS GUARANTY SHALL BE A CONTINUING, ABSOLUTE AND UNCONDITIONAL
GUARANTY, and shall remain in full force and effect until the Indebtedness (and
interest thereon and expenses in connection therewith), and all renewals,
modifications, or extensions thereof, in whole or in part, shall have been fully
paid and satisfied and shall remain in full force and effect until written
notice of its discontinuance, addressed to the President of the Bank, shall be
actually received by the Bank (the burden of proof of receipt by the Bank of
such notice being in all cases upon the Guarantor), and also until any and all
said Indebtedness, or any extensions or renewals thereof, existing before
receipt of such notice, and expenses in connection therewith, shall be fully
paid. Regardless of when a renewal or extension of pre-termination debt occurs
(with or without adjustment of interest rate or other terms), the debt is deemed
to have been incurred prior to termination to the extent of the renewal or
extension, and to be fully covered by this Guaranty. The dissolution or
withdrawal of the Guarantor (or any of them, if more than one) shall not
terminate this Guaranty until notice of any such dissolution or withdrawal,
given as above provided, shall have actually been received by the Bank, and
until all of said Indebtedness, or any extensions or renewals thereof, existing
before receipt of such notice shall be fully paid. In the event of any such
dissolution or withdrawal and notice thereof to the Bank, this Guaranty shall,
notwithstanding, continue and remain in force against any surviving Guarantor
until discontinued as hereinabove provided.
The Bank is hereby expressly authorized to make from time to time,
without notice to anyone: any renewals, modifications or extensions, whether
such renewals, modifications or extensions be in whole or in part and without
limit as to the number of such extensions or of the renewal periods thereof, and
without notice to or further assent from the undersigned, sales,
pledges, surrenders, compromises, settlements, releases, indulgences,
alterations, substitutions, exchanges, changes in, modifications, or other
dispositions including, without limitation, cancellations, of all or any part of
the collateral pledged to secure the Indebtedness or any part of said
Indebtedness, either express or implied, or of any contracts or instruments
evidencing any thereof, or of any security or collateral therefor, and/or to
take any security for or other guaranties upon any of said Indebtedness; and the
liability of the Guarantor (or any of them, if more than one) shall not be in
any manner affected, diminished or impaired thereby, or by any lack of
diligence, failure, neglect or omission on the part of the Bank to make any
demand or protest, or give any notice of dishonor or default, or to realize upon
or protect any of said Indebtedness, or any collateral or security therefor, or
to exercise any lien upon or right of appropriation or setoff of any moneys,
accounts, credits, or property of said Debtor, possessed by the Bank, towards
the liquidation of said Indebtedness, or by any application of payments or
credits thereon. The Bank shall have the exclusive right to determine how, when
and what application of payments and credits, if any, shall be made on said
Indebtedness, or any part thereof, and shall be under no obligation, at any
time, to first resort to, make demand on, file a claim against, or exhaust its
remedies against the Debtor, or any one or more of the Guarantors, or other
persons or corporations, their properties or estates, or to resort to or exhaust
its remedies against, any collateral, security, property, liens or other rights
whatsoever. It is expressly agreed that the Bank may at any time make demand for
payment on, or bring suit against the Guarantor (or any of them, if more than
one), or any other guarantors, may compound with the Guarantor or any other
guarantor for such sums or on such terms as Bank may see fit and release the
Guarantor (or any of them, if more than one) or any other guarantor from all
further liability to the Bank, without thereby impairing the rights of the Bank
in any respect to demand, sue for and collect the balance of the Indebtedness
from any guarantor not so released; and that any claims against Debtor, against
any other guarantor, or against any collateral, accruing to the Guarantor (or
any of them, if more than one) by reason of payments made hereunder shall be in
all respects junior and subordinate to any obligation then or subsequently owed
by the Debtor or by such other guarantor to the Bank. In addition, the liability
of the Guarantors (or each of them, if more than one) shall not be affected by
any lack of validity or enforceability of the guaranteed debt.
In the event of the dissolution, liquidation, insolvency (however
evidenced) of the Debtor, or institution of bankruptcy or receivership
proceedings by the Debtor, or in the event that any involuntary bankruptcy or
receivership proceedings filed against the Debtor shall not be dismissed within
thirty (30) days following the institution of such proceedings, then and in any
such event all of the Indebtedness shall, for the purposes of this Guaranty, and
at the option of the Bank, immediately become due and payable from the
Guarantor; and, in such event, any and all sums or payments of any nature which
may be or become due and payable by the Debtor to the undersigned are hereby
assigned to the Bank, and shall be collectible by the Bank, without necessity
for other authority than this instrument, until the Indebtedness shall be fully
paid and discharged, but such collection by the Bank shall not in any respect
affect, impair or diminish any other rights of the Bank hereunder.
The granting of credit from time to time by the Bank to the Debtor, in
excess of the amount to which right of recovery under this Guaranty is limited
and without notice to the Guarantor (or any of them, if more than one), is
hereby expressly authorized and shall in no way affect or impair this Guaranty;
and, in the event that the obligations of the Debtor to the Bank shall so exceed
the amount to which this Guaranty is limited, any payment by the Debtor or any
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collections or recovery by the Bank from any sources other than this Guaranty
and collateral securing the Indebtedness may first be applied by the Bank to any
obligations of the Debtor which exceed the limits of this Guaranty.
The Guarantor (or each of them, if more than one) will not exercise any
rights that Guarantor (or any of them, if more than one) may acquire by way of
subrogation under this Guaranty, by any payment made hereunder or otherwise,
until all of the Indebtedness shall have been paid in full. If any amount shall
be paid to the Guarantor (or any of them, if more than one) on account of such
subrogation rights at any time when all the Indebtedness shall not have been
paid in full, such amount shall be held in trust for the benefit of the Bank and
shall forthwith be paid to the Bank to be credited and applied upon the
Indebtedness.
Notwithstanding any other provision of this Guaranty to the contrary,
if the obligations of the Guarantor hereunder would otherwise be held or
determined by a court of competent jurisdiction in any action or proceeding
involving any state corporate law or any state or Federal bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance or other law
affecting the rights of creditors generally, to be void, invalid or
unenforceable to any extent on account of the amount of the Guarantor's (or each
of them, if more than one) liability under this Guaranty, then notwithstanding
any other provision of this Guaranty to the contrary, the amount of such
liability shall, without any further action by the Guarantor (or each of them,
if more than one) or any other person, be automatically limited and reduced to
the highest amount which is valid and enforceable as determined in such action
or proceeding.
The Bank may without any notice whatsoever to anyone, sell, assign or
transfer all or any part of said Indebtedness; and in that event each and every
immediate and successive assignee, transferee or holder of all or any part of
said Indebtedness shall have the right to enforce this Guaranty, by suit or
otherwise, for the benefit of such assignee, transferee or holder, as fully as
though such assignee, transferee or holder were herein by name given such
rights, powers and benefits; but the Bank shall have an unimpaired right, prior
and superior to that of any said assignee, transferee or holder, to enforce this
Guaranty for the benefit of the Bank, as to so much of said Indebtedness that
has not been sold, assigned or transferred.
No act of commission or omission of any kind, or at any time, on the
part of the Bank in respect of any matter whatsoever shall in any way affect or
impair this Guaranty. This Guaranty is in addition to and not in substitution
for or discharge of any other Guaranty held by the Bank. The Guarantor (or each
of them, if more than one) waives any rights of action Guarantor (or any of
them, if more than one) might have against the Bank because of the exercise by
the Bank in any manner howsoever of any rights granted to the Bank herein.
This Guaranty contains the entire agreement between the parties and
every part thereof shall be binding upon the Guarantor (or each of them, if more
than one), Guarantor's heirs, executors, administrators, personal
representatives, successors and assigns, as fully as though everywhere
specifically mentioned, and shall inure to the benefit of the Bank, and its
successors and assigns, and shall be construed according to the laws of the
State of Tennessee, in which state it is accepted by the Bank.
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The Guarantor agrees to furnish a current financial statement upon the
request of the Bank from time to time. Further, Guarantor shall supply or cause
to be supplied to Bank such other information relating to the financial
condition and business affairs of the Guarantor (including updated financial
statement of the Guarantor) as may from time to time be requested by the Bank.
If any provision hereof is invalid or unenforceable, the remaining
provisions hereof shall not be affected by such invalidity or unenforceability.
Each term and provision contained herein shall, however, be valid and
enforceable to the fullest extent permitted by applicable law.
The Guarantor (or each of them, if more than one) acknowledges that
this Guaranty Agreement is and shall be effective against such Guarantor upon
execution by such Guarantor (regardless of whether any other person named herein
as Guarantor shall sign), and delivery hereof to the Bank, or its agent; and
that it shall not be necessary for the Bank to execute any acceptance hereof or
otherwise to signify or express its acceptance hereof.
ALL OF THE PARTIES HERETO WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM BROUGHT BY ANY OF THE PARTIES AGAINST THE OTHER ON ANY MATTER
WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT OR UNDER
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED (OR WHICH MAY BE
DELIVERED IN THE FUTURE) IN CONNECTION HEREWITH OR ARISING FROM ANY BANKING
RELATIONSHIP BETWEEN THE PARTIES TO THIS AGREEMENT.
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IN WITNESS WHEREOF, the Guarantor (or each of them, if more than one)
has caused this Guaranty Agreement to be executed by its duly authorized
officers on this the 16th day of June, 2005.
PINNACLE AIRLINES CORP.,
a Delaware corporation
By:
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Name:
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Title:
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STATE OF TENNESSEE
COUNTY OF SHELBY
Before me, ___________________, a Notary Public in and for the State
and County aforesaid, personally appeared ___________________, with whom I am
personally acquainted (or proved to me on the basis of satisfactory evidence),
and who, upon oath, acknowledged himself (or herself) to be the
___________________ of PINNACLE AIRLINES CORP., the within-named bargainor, a
corporation, and that _he as such ___________________, being duly authorized so
to do, executed the foregoing instrument for the purposes therein contained, by
signing the name of the corporation by ___self as such ___________________.
WITNESS my hand and seal at office, on this the ____ day of
__________________, 2005.
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Notary Public
My Commission Expires:
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