Exhibit 10.7
E XECUTION V ERSION
GUARANTY
This Guaranty (this “
Guaranty ”) is entered into as of May 8, 2009, by
Air Transport Services Group, Inc., a Delaware corporation (“
Guarantor ”), in favor of DHL Express (USA), Inc., an
Ohio corporation (as successor in interest to Airborne, Inc.)
(“ DHL ”).
RECITALS
WHEREAS, ABX Air, Inc., a Delaware
corporation (“ ABX ”) and DHL, have agreed,
concurrently herewith, to amend and restate that certain First
Non-Negotiable Promissory Note, dated as of August 15, 2003,
made by ABX in favor of Airborne, Inc. in the original principal
amount of $92,948,714 (the “ Prior Note ”)
pursuant to that certain Amended and Restated First Non-Negotiable
Promissory Note, dated as of the date hereof, to be issued by ABX
to DHL in the original principal amount of $31,000,000 (the “
DHL Note ”); and
WHEREAS, ABX is a wholly-owned
subsidiary of Guarantor; and
WHEREAS, as an inducement for DHL to
agree to the amendment and restatement of the Prior Note and to
accept the DHL Note, Guarantor desires to guarantee the Guaranteed
Obligations (as hereinafter defined) of ABX under the DHL Note, as
set forth below;
NOW, THEREFORE, based upon the
foregoing and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, and in order to
induce DHL to agree to the amendment and restatement of the Prior
Note and to accept the DHL Note, Guarantor hereby agrees as
follows:
Section 1. Guaranty .
Guarantor, as a primary obligor and not as surety, hereby
guarantees, without any setoff or other deduction, to DHL
(i) the due, punctual and full payment by ABX of any and all
sums to be paid by ABX pursuant to the DHL Note, whether such
obligations now exist or arise hereafter, when and as the same
shall become due and payable by ABX in accordance with the terms
thereof, and (ii) the due, prompt and faithful performance and
discharge by, and compliance with, all other obligations,
covenants, terms, conditions, undertakings and liabilities of, ABX
under the DHL Note in accordance with the terms thereof (all of the
obligations, covenants, terms, conditions, undertakings and
liabilities described in this Section 1 are herein
collectively referred to as the “ Guaranteed
Obligations ”).
This Guaranty is continuing,
absolute and unconditional and a guaranty of payment, performance
and compliance and not of collectibility, and is in no way
conditioned or contingent upon any attempt to collect from or
enforce performance or compliance by ABX or the exercise or
assertion of any other right or remedy to which DHL is or may be
entitled under or in connection with the DHL Note. If for any
reason whatsoever ABX shall fail or be unable duly, punctually and
fully to pay such amounts as and when the same shall become due and
payable in accordance with the terms of. or to perform or comply
with any such obligation, covenant, term, condition or undertaking
contained in, the DHL Note, Guarantor will promptly pay or cause to
be paid such amounts under the terms of, or perform or comply with
any such obligation, covenant, term, condition or undertaking
contained in (or cause to be performed or complied with) the DHL
Note.
Section 2. Character of
Obligations of Guarantor . The obligations of Guarantor set
forth in this Guaranty shall remain in full force and effect until
payment of the Guaranteed Obligations in full, and shall not be
released, discharged or in any way affected by any of the
following:
(a) any amendment, modification,
addition, deletion or supplement to or of or other change in the
Guaranteed Obligations or DHL Note;
(b) any failure, omission or delay
on the part of ABX to conform or comply with any term of the DHL
Note;
(c) any voluntary or involuntary
bankruptcy, insolvency, reorganization, arrangement, readjustment,
composition, liquidation, dissolution, winding up or similar
proceeding with respect to ABX; or
(d) any merger or consolidation of
ABX or Guarantor into or with any other corporation, or any other
corporate change in ABX or Guarantor, or any sale, lease or
transfer of any of the assets of ABX or Guarantor to any other
person, or any change in the ownership of any shares of capital
stock of ABX or Guarantor.
Section 3. Waiver and
Agreement . Guarantor waives any and all notice of the
creation, modification, extension or accrual of any of the
Guaranteed Obligations and notice of or proof of reliance by DHL
upon this Guaranty or acceptance of this Guaranty, and the
Guaranteed Obligations, and any of them, shall conclusively be
deemed to have been created, contracted or incurred in reliance
upon this Guaranty. Guarantor unconditionally waives, to the extent
permitted by applicable law:
(a) acceptance of this Guaranty and
proof of reliance by DHL hereon;
(b) notice of any of the matters
referred to in Section 2 hereof, or any right to
consent or assent to any thereof;
(c) any right to the enforcement,
assertion or exercise by DHL against ABX of any right, power,
privilege or remedy conferred upon DHL in the DHL Note or
otherwise;
(d) any requirement of diligence on
the part of any person; and
(e) any requirement that ABX or any
other person be joined as a party to any proceeding for the
enforcement of any term of the DHL Note.
Section 4. Subrogation .
Guarantor shall be subrogated to any rights of DHL against ABX in
respect of which a payment shall be made by Guarantor hereunder;
provided , however , that Guarantor shall not enforce
or attempt to enforce such rights unti
