Exhibit 10.2
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty Agreement") is entered into as of
March 30, 2006, among by WORLD AIR HOLDINGS, INC., a Delaware corporation, and
WORLD AIRWAYS PARTS COMPANY, LLC, a Delaware limited liability company (each a
"Guarantor", and collectively, the "Guarantors", which terms shall include any
Domestic Subsidiary which becomes a Guarantor pursuant to Section 7.16 of the
Credit Agreement referred to below), in favor of WACHOVIA BANK, NATIONAL
ASSOCIATION, in its capacity as the Agent (in such capacity, the "Agent") for
the financial institutions from time to time party to the Credit Agreement
described below (the "Lenders"). Capitalized terms used herein and not otherwise
defined shall have the meanings ascribed thereto in the Credit Agreement (as
defined below).
RECITALS
WHEREAS, pursuant to that certain Credit Agreement dated as of March 30,
2006 (together with all modifications, renewals, extensions, supplements and
replacements from time to time, the "Credit Agreement") among World Airways,
Inc., a Delaware corporation, North American Airlines, Inc., a Delaware
corporation (the "Borrowers"), the Lenders and the Agent, the Lenders have
agreed to make Loans and to issue or participate in Letters of Credit upon the
terms and subject to the conditions set forth therein; and
WHEREAS, it is a condition precedent to the effectiveness of the Credit
Agreement and the obligations of the Lenders to make their respective Loans and
to issue or participate in Letters of Credit under the Credit Agreement that the
Guarantors shall have executed and delivered this Guaranty Agreement to the
Agent for the ratable benefit of the Lenders; and
WHEREAS, the Borrowers and the Guarantors are engaged in related
businesses, and each Guarantor will derive substantial direct and indirect
benefit from the making of the extensions of credit under the Credit Agreement;
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. The Guaranty.
Each Guarantor hereby guarantees to each Lender and to each Affiliate of a
Lender that enters into a Lender Hedging Agreement with or provides Bank
Products to a Borrower the prompt payment of all Obligations of the Borrowers,
whenever arising (hereinafter, collectively, the "Guaranteed Obligations"), in
full when due (whether at stated maturity, as a mandatory prepayment, by
acceleration, a mandatory cash collateralization or otherwise) strictly in
accordance with the terms thereof. Each Guarantor hereby further agrees that if
any of the Guaranteed Obligations are not paid in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration, as mandatory cash
collateralization or otherwise), such Guarantor will promptly pay the same, upon
demand, and that in the case of any extension of time of payment or renewal of
any of the Guaranteed Obligations, the same will be promptly paid in full when
due (whether at extended maturity, as a mandatory prepayment, by acceleration or
otherwise) in accordance with the terms of such extension or renewal. This
guaranty is a guaranty of payment and not of collection.
Notwithstanding any provision to the contrary contained herein or in any
other of the Credit Documents or any Lender Hedging Agreements or agreement
pertaining to Bank Products, to the extent the obligations of any Guarantor
shall be adjudicated to be invalid or unenforceable for any reason (including,
without limitation, because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of such Guarantor
hereunder shall be limited to the maximum amount that is permissible under
applicable law (whether federal or state and including, without limitation, any
bankruptcy, insolvency or similar law), after taking into account, among other
things, such Guarantor's right of contribution and indemnification from each
other Credit Party under applicable law or the Contribution Agreement.
2. Joint and Several Liability.
(a) Each of the Guarantors is accepting joint and several liability
hereunder in consideration of the financial accommodations to be provided
by the Lenders under the Credit Agreement, for the mutual benefit, directly
and indirectly, of each of the Borrowers and Guarantors and in
consideration of the undertakings of each of the Guarantors to accept joint
and several liability for the obligations of each of the Borrowers.
(b) Each of the Guarantors jointly and severally hereby irrevocably
and unconditionally accepts, not merely as a surety but also as a
co-obligor, joint and several liability with the other Guarantors with
respect to the payment and performance of all of the Guaranteed
Obligations, it being the intention of the parties hereto that all the
Guaranteed Obligations shall be the joint and several obligations of each
of the Guarantors without preferences or distinction among them.
(c) If and to the extent that any of the Borrowers or Guarantors shall
fail to make any payment with respect to any of the Obligations as and when
due or to perform any of the Obligations in accordance with the terms
thereof, then in each such event, the other Guarantors will make such
payment with respect to, or perform, such Obligation.
3. Obligations Unconditional.
The obligations of each of the Guarantors under Section 1 hereof are
absolute and unconditional, irrespective of the value, genuineness, validity,
regularity or enforceability of any of the Credit Documents or any Lender
Hedging Agreement or agreement pertaining to Bank Products (except to the extent
the scope of the Guaranteed Obligations are affected thereby), or any other
agreement or instrument referred to therein, or any substitution, release or
exchange of any other guaranty of or security for any of the Guaranteed
Obligations, and, to the fullest extent permitted by applicable law,
irrespective of any other circumstance whatsoever which might otherwise
constitute a legal or equitable discharge or defense of a surety or guarantor
other than the payment and discharge of the Guaranteed Obligations in full, it
being the intent of this Section 3 that the obligations of each Guarantor
hereunder shall be absolute and unconditional
under any and all circumstances. Each Guarantor agrees that it shall have no
right of subrogation, indemnity, reimbursement or contribution against any
Borrower or any other Guarantor of the Obligations for amounts paid under this
Guaranty Agreement until all of the Credit and Collateral Termination Events
have occurred. Without limiting the generality of the foregoing, it is agreed
that, to the fullest extent permitted by law, the occurrence of any one or more
of the following shall not alter or impair the liability of any Guarantor
hereunder which shall remain absolute and unconditional as described above:
(i) at any time or from time to time, without notice to any
Guarantor, the time for any performance of or compliance with any of
the Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(ii) any of the acts mentioned in any of the provisions of any of
the Credit Agreement, the Credit Documents, any Lender Hedging
Agreement or agreement pertaining to Bank Products or any other
agreement or instrument referred to in the Credit Agreement, the
Credit Documents or any Lender Hedging Agreement or agreement
pertaining to Bank Products shall be done or omitted;
(iii) the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be modified,
supplemented or amended in any respect by the parties thereto in
accordance with the terms thereof, or any right under any of the
Credit Agreement, the Credit Documents, any Lender Hedging Agreement
or agreement pertaining to Bank Products or any other agreement or
instrument referred to in the Credit Agreement, the Credit Documents
or any Lender Hedging Agreement or agreement pertaining to Bank
Products shall be waived or any other guarantee of any of the
Guaranteed Obligations or any security therefor shall be released or
exchanged in whole or in part or otherwise dealt with;
(iv) any Lien granted to, or in favor of, the Agent or any Lender
or Lenders as security for any of the Guaranteed Obligations shall
fail to attach or be perfected; or
(v) any of the Guaranteed Obligations shall be determined to be
void or voidable (including, without limitation, for the benefit of
any creditor of any Guarantor) or shall be subordinated to the claims
of any Person (including, without limitation, any creditor of any
Guarantor).
With respect to its obligations hereunder, each Guarantor hereby expressly
waives diligence, presentment, demand of payment, protest and all notices
whatsoever (except to the extent expressly elsewhere provided for in the Credit
Agreement or the other Credit Documents), to the extent permitted by law, and
any requirement that the Agent or any Lender exhaust any right, power or remedy
or proceed against any Person under any of the Credit Agreement, the Credit
Documents, any Lender Hedging Agreement or agreement pertaining to Bank Products
or any other agreement or instrument referred to in the Credit Agreement, the
Credit Documents or any Lender Hedging Agreement or agreement pertaining to Bank
Products, or against any other Person under any other guarantee of, or security
for, any of the Guaranteed Obligations.
4. Reinstatement.
The obligations of each Guarantor under this Guaranty Agreement shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Guaranteed Obligations is rescinded
or must be otherwise restored by any holder of any of the Guaranteed
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Agent and each Lender on demand for all reasonable costs and expenses
(including, without limitation, fees and expenses of counsel actually incurred,
subject to Section 14.7 of the Credit Agreement) incurred by the Agent or such
Lender in connection with such rescission or restoration, including any such
costs and expenses incurred in defending against any claim alleging that such
payment constituted a preference, fraudulent transfer or similar payment under
any bankruptcy, insolvency or similar law.
5. Certain Additional Waivers.
Each Guarantor further agrees that it shall have no right of recourse to
security for the Guaranteed Obligations, except through the exercise of the
rights of subrogation pursuant to Section 3 hereof or pursuant to the
Contribution Agreement.
6. Remedies.
Each Guarantor agrees that, to the fullest extent permitted by law, as
between such Guarantor, on the one hand, and the Agent and the Lenders, on the
other hand, the Guaranteed Obligations may be declared to be forthwith due and
payable as provided in Section 11.2 of the Credit Agreement (and shall be deemed
to have become automatically due and payable in the circumstances provided in
said Section 11.2) for purposes of Section 1 hereof notwithstanding any stay,
injunction or other prohibition preventing such declaration (or preventing the
Guaranteed Obligations from becoming automatically due and payable) as against
any other Person and that, in the event of such declaration (or the Guaranteed
Obligations being deemed to have become automatically due and payable), the
Guaranteed Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors for purposes of said
Section 1.
7. Limitation on Guaranteed Obligations.
Notwithstanding any provision to the contrary contained herein or in any
other of the Credit Documents or Lender Hedging Agreements or agreement
pertaining to Bank Products, the obligations of each Guarantor hereunder shall
be limited to an aggregate amount equal to the largest amount that would not
render its obligations hereunder subject to avoidance under applicable law
(whether federal or state and including, without limitation, Section 548 of the
Bankruptcy Code), after taking into account, among other things, such Borrower's
right of contribution and indemnification from each other Credit Party under
applicable law or the Contribution Agreement.
8. Representations, etc.
(a) The guaranty in this Guaranty Agreement is a continuing guaranty,
and shall apply to all Guaranteed Obligations whenever arising;
(b) Each Guarantor hereby represents and warrants that it is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation or organization, as the case may be, and
in each other jurisdiction in which the failure to be so qualified could be
reasonably be expected to have a Material Adverse Effect;
(c) Each Guarantor further represents and warrants that it has the
power and authority to enter into this Guaranty Agreement and to perform
its obligations and to consummate the transactions contemplated hereby and
has by proper action duly authorized the execution and delivery of this
Guaranty Agreement; and
(d) Each Guarantor further represents and warrants that this Guaranty
Agreement constitutes the legal, valid and binding obligation of such
Guarantor enforceable in accordance with its terms, subject to the effects
of bankruptcy, insolvency, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally and general
equitable principles (whether considered in a proceeding in equity or at
law).
(e) Each Guarantor incorporates herein by reference as fully as if set
forth herein all of the representations and warranties pertaining to it as
a Guarantor or Subsidiary, as the case may be, contained in the Credit
Agreement, subject to all limitations and qualifications as therein
provided, including, without limitation, Article VI of the Credit Agreement
(which representations and warranties shall be deemed to have been renewed
by the Guarantors upon each extension of credit under the Credit
Agreement).
9. Incorporated Covenants and Waivers.
Each Guarantor incorporates herein by reference as fully as if set forth
herein all of the covenants, waivers and other provisions pertaining to it as a
Guarantor or Subsidiary, as the case may be, contained in the Credit Agreement
subject to all limitations and qualifications as therein provided, including,
without limitation, such covenants, waivers and other provisions contained in
Articles VII, VIII, IX and X of the Credit Agreement.
10. Amendments; Waivers; Modifications.
This Guaranty Agreement and the provisions hereof may not be amended,
waived, modified, changed, discharged or terminated except as set forth in
Section 14.9 of the Credit Agreement.
11. Counterparts.
This Guaranty Agreement may be executed in any number of counterparts, each
of which where so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. It shall not be necessary in
making proof of this Guaranty Agreement to produce or account for more than one
such counterpart as executed by each Guarantor.
12. Headings.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning, construction or
interpretation of any provision of this Guaranty Agreement.
13. Governing Law; Submission to Jurisdiction and Service of Process;
Arbitration; Waiver of Jury Trial.
THIS GUARANTY AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF GEORGIA, WITHOUT GIVING EFFECT TO THE CHOICE OF LAW
PROVISIONS THEREOF. The terms of Sections 14.2 and 14.3 of the Credit Agreement
are incorporated herein by reference, mutatis mutandis, and the parties hereto
agree to such terms.
14. Entirety.
This Guaranty Agreement, the Credit Agreement and the other Credit
Documents represent the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or written, if any,
including any commitment letters or correspondence relating to the Credit
Agreement, the other Credit Documents or the transactions contemplated herein
and therein.
15. Taxes, etc.
All payments required to be made by the Guarantors hereunder shall be made
without setoff or counterclaim and free and clear of and without deduction or
withholding for or on account of, any present or future taxes, levies, imposts,
duties or other charges of whatsoever nature imposed by any government or any
political or taxing authority as required pursuant to Section 2.6 of the Credit
Agreement.
16. Additional Guarantors.
Section 7.16 of the Credit Agreement provides that certain Domestic
Subsidiaries may become Guarantors by, among other things, executing and
delivering to the Agent a joinder agreement. Any Domestic Subsidiary which
executes and delivers to the Agent a joinder agreement joining such Domestic
Subsidiary to this Guaranty Agreement shall be a Guarantor for all purposes
hereunder and under the other Credit Documents.
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Guaranty Agreement to be duly executed and delivered as of the date first
above written.
GUARANTORS:
WORLD AIR HOLDINGS, INC.
By:
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Name:
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Title:
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WORLD AIRWAYS PARTS COMPANY, LLC
By:
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Name:
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Title:
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Accepted and agreed to as of the date first above written.
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS AGENT
By:
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Name:
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Title:
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