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EXHIBIT 10.25
LOAN AGREEMENT
This Loan Agreement (the "Agreement") is made and entered into this 8th day of
September, 1997, by and between AirTran Airways, Inc., a corporation organized
under the laws of the State of Delaware and Airways Corporation, a corporation
organized under the laws of the State of Delaware (jointly and severally, the
"Borrower" and each a "Co-Borrower") and ValuJet, Inc., a corporation organized
under the laws of the State of Nevada (the "Lender").
WHEREAS, Borrower desires to borrow from Lender, subject to the terms and
conditions herein set forth, an aggregate principal amount of Five Million Seven
Hundred Thousand and no/100 Dollars ($5,700,000); and
WHEREAS, Lender is willing to loan to Borrower, subject to the terms and
conditions herein set forth (including, without limitation, subject to granting
to Lender a first priority security interest in the Mortgaged Property) an
aggregate principal amount of Five Million Seven Hundred Thousand and no/100
Dollars ($5,700,000).
NOW THEREFORE, in consideration of the premises and agreements herein contained,
Borrower and Lender hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used herein, the following terms shall have the
following meanings, all other capitalized terms used herein but not
defined shall be as defined in the Leasehold Mortgage:
"Agreement" means this Loan Agreement, as the same may be modified,
amended or supplemented from time to time.
"Closing Date" means the date of the Note.
"Environmental Agreement" means the Environmental Indemnification
Agreement of even date with the Note and Leasehold Mortgage in the form
of Exhibit C attached hereto.
"Loan" has the meaning set forth in Section 2.1 of this Agreement.
"Loan Documents" means this Agreement, the Note, the
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Leasehold Mortgage, the Environmental Agreement, each, as may be
amended or supplemented from time to time and including all exhibits
and attachments thereto, and any other agreement, document, instrument,
or certificate required to be delivered under this Agreement or such
documents.
"Leasehold Mortgage" has the meaning set forth in Section 3 hereof and
any other security agreement covering the Mortgaged Property entered
into by Lender and Borrower in accordance with the Loan Documents and
applicable law.
"Loan Rate" has the meaning set forth in Section 2.2 of this Agreement.
"Maturity Date" means December 3, 1997, unless extended an additional
ninety (90) days pursuant to this Agreement.
"Mortgaged Property" shall have the meaning set forth in the Leasehold
Mortgage.
"month" means a period commencing on one day in a calendar month and
ending on the day in the next succeeding calendar month the date of
which numerically corresponds to the date of such first day, provided
that if there is no numerically corresponding date in the next calendar
month, such period shall end on the last day of the next succeeding
calendar month.
"Note" has the meaning set forth in Section 2.2 of this Agreement.
"SunTrust" means SunTrust Bank, Central Florida, National Association.
SECTION 2. AMOUNT AND TERMS OF LOAN
2.1 The Loan. Subject to and upon the terms and conditions set forth in
this Agreement, Lender agrees to lend to Borrower on the Closing Date,
an aggregate principal amount of Five Million Seven Hundred Thousand
and no/100 Dollars ($5,700,000) (such amount actually loaned to
Borrower being referred to as the "Loan").
2.2 Terms of Note. The Loan shall be evidenced by a promissory note (the
"Note") duly executed and delivered by Borrower on the Closing Date
substantially in the form of Exhibit A hereto. The Note shall, (i) have
a principal amount of $5,700,000; (ii) bear interest from and including
the Closing Date through the Maturity Date on the unpaid principal
amount under the Note at an interest rate per annum of 12% (the
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"Loan Rate") and (iii) mature on the Maturity Date.
The entire principal amount of the Note shall be due and payable on the
Maturity Date;
Accrued interest on the Note shall be due and payable monthly
commencing on the calendar date corresponding to the Closing Date in
the first calendar month succeeding the calendar month of the Closing
Date (the "Payment Commencement Date") and shall be due thereafter on
the same numerical day of each month thereafter as Closing Date.
Interest shall be computed on the basis of a thirty (30) day month. The
first payment of accrued interest to be made on the Payment
Commencement Date shall be the accrued interest from and after the
Closing Date through and including the Payment Commencement Date.
Lender shall record on its books and records or on a schedule to the
Note, the amount of all payments of principal and interest on the Note.
The record of such information, whether shown on Lender's books and
records or on the schedule to the Note, shall be prima facie evidence
as to all such amounts; provided, however, the failure of Lender to
record any of the foregoing shall not limit or otherwise affect the
obligation of Borrower to repay the Loan, together with accrued
interest thereon.
2.3 Prepayment. Borrower shall have the right at any time, without advance
notice to Lender, to prepay all or any portion of the principal balance
of the Note without penalty; provided that any prepayment shall be
accompanied by the payment of interest accrued on the amount being
prepaid on the date of such prepayment.
2.4 Payment. All payments of principal, interest or any premiums or
penalties due thereunder shall be made by payment in immediately
available funds, no later than 12:00 o'clock noon Atlanta, Georgia
time, to Lender at its address set forth in Section 8.8 hereof,
irrespective of, and without deduction for, any set off or
counterclaims. Whenever any payment of principal, interest, premium or
penalty to be made hereunder shall fall due on a Saturday, Sunday or
public holiday under the laws of the State of Georgia, such payment
shall be made on the next succeeding Business Day, but interest shall
continue to accrue on such payment until made. Whenever any payment of
principal, interest, premium or penalty is not paid when due such
amount due shall bear interest at the Default Interest Rate (as defined
in the Note) until paid, notwithstanding whether or not such failure to
pay when due constitutes an Event of Default under this Agreement or
whether there is granted hereunder a grace period for payment.
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2.5 Extension of Maturity Date. In the event that the merger of
Airways Corporation and ValuJet, Inc. has not been
consummated on or before November 30, 1997, the Maturity Date
shall be deemed extended to March 3, 1998.
SECTION 3. SECURITY
3.1 Grant of Security Interest in the Mortgaged Property. On the Closing
Date, Borrower shall execute and deliver to Lender a Leasehold Mortgage
and Security Agreement substantially in the form of Exhibit B hereto
(the "Leasehold Mortgage") pursuant to which Borrower shall assign,
grant and set over unto Lender, a perfected first priority security
interest in the Mortgaged Property, all as further described and
defined in the Leasehold Mortgage. Lender's security interest in the
Mortgaged Property shall be registered, recorded and perfected under
and in accordance with the laws of the United States and the State of
Florida. Promptly upon filing of the Leasehold Mortgage and the release
of the lien of SunTrust with respect to the Mortgaged Property, Lender
shall receive an opinion of counsel to Borrower that the security
interest of Lender is perfected under all applicable law, having first
priority over all other interests or claims of any other party with
respect to the Mortgaged Property. Borrower shall bear all reasonable
costs and expenses of Lender in securing counsel opinions and Lender's
rights and security interest in and to the Mortgaged Property,
including, without limitation, the payment of Lender's counsel fees
associated therewith.
3.2 Further Assurances. Borrower will, and will procure that, at its own
expense, at all times make, execute, acknowledge and deliver, and file
and record in the proper filing and recording offices, all such further
and additional instruments and documents, including, but not limited
to, UCC-1 financing statements, and additional security agreements or
mortgages as may be necessary under the applicable law, as may be
necessary, or as Lender or its counsel may reasonably request from time
to time, in order to preserve and perfect Lender' rights and interests
hereunder and under the Leasehold Mortgage.
SECTION 4. BORROWER REPRESENTATIONS AND WARRANTIES
To induce Lender to enter into this Agreement and to make the Loan as provided
for herein, Borrower makes the following representations and warranties, which
shall survive the execution and delivery of this Agreement, and all Loan
Documents and which shall continue in full force and effect until payment in
full by Borrower of all amounts due hereunder.
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4.1 Corporate Organization and Standing. Borrower is, and will continue to
be, a duly organized and validly existing corporation in good standing
under the laws of the State of Delaware.
4.2 Corporate Power and Authority. Borrower has all requisite corporate
power and authority to execute, deliver, and carry out the terms and
provisions of this Agreement, and all other Loan Documents and has duly
and properly taken all necessary corporate and other action (including,
without limitation, any consent of directors or stockholders required
by law or by its charter or by-laws) to permit and authorize the
execution, delivery and performance of this Agreement and all of the
Loan Documents. This Agreement and all of the Loan Documents have been,
or will be, duly authorized, executed and delivered by Borrower and
each constitutes, or will constitute, a legal,valid and binding
obligation of Borrower, enforceable against it in accordance with their
respective terms.
4.3 Compliance with Other Instruments. The Borrower is not in violation of,
or default under, any term of its charter or by-laws or any agreement
or instrument to which it is a party or by which it is bound or to
which any of its properties or assets are subject or of any judgment,
decree, order, statute, rule or governmental regulation applicable to
it. The execution, delivery and performance by Borrower of this
Agreement and all of the Loan Documents, and any document required to
be delivered hereunder or thereunder, the consummation of the
transactions contemplated herein or therein and the compliance with the
terms and provisions hereof or thereof will not contravene any
provision of law, statute, rule or regulation to which Borrower is
subject or any judgment, decree, franchise, order, governmental
regulation or permit applicable to Borrower and will not violate,
conflict with or result in any breach of any of the terms, covenants,
conditions or provisions of, or constitute of default under any
agreement to which Borrower is a party, or result (except as
contemplated by this Agreement and the Leasehold Mortgage) in the
creation or imposition of any lien, mortgage, pledge or encumbrance
upon any of the property or assets of Borrower pursuant to the terms of
Borrower's charter, management agreement, by-laws or any indenture,
mortgage, deed of trust, agreement or other instrument to which
Borrower is a party or by which it or its properties is bound or may be
subject, and will not violate or be in conflict with any provision of
the charter or by-laws of Borrower.
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4.4 No Liens. On the Closing Date, the Mortgaged Property shall be free and
clear of all liens, charges and encumbrances except for the interests
of Lender under the Leasehold Mortgage.
4.5 Survival of Representations and Warranties. All representations and
warranties made herein and the Leasehold Mortgage shall be true and
correct as of the date of the Closing Date and shall survive the
execution and delivery of this Agreement and all of the Loan Documents.
SECTION 5. COVENANTS OF BORROWER
Borrower covenants and agrees that from the date hereof and until payment in
full of the principal of and interest on the Note and of all other amounts due
hereunder, unless Lender shall otherwise consent in writing, such consent not to
be unreasonably withheld, Borrower shall:
5.1 Business and Existence. Perform all things necessary to preserve and
keep in full force and effect the corporate existence and rights of
Borrower; comply with all laws applicable to it; and conduct and
operate its business substantially as conducted and operated as of the
date hereof.
5.2 Maintenance of Property. Maintain, preserve and protect its trade names
and assets and properties and the Mortgaged Property and keep the same
in good repair, working order and condition and from time to time make,
or cause to be made, all needed and proper repairs, renewals,
replacements and improvements thereto so that its business carried on
in connection therewith may be properly conducted at all times.
5.3 Insurance on Properties. At all times keep and maintain in force: (i)
insurance upon its assets and properties which are of an insurable
nature, real and personal, tangible and intangible, including, but not
limited to, the Mortgaged Property (for and in an amount equal to no
less than Seven Million One Hundred Thousand and no/100 Dollars
($7,100,000), and against loss or damage from such hazards and risks as
are reasonable and proper in accordance with the Leasehold Mortgage and
sound business practice and as is customarily carried by persons owning
similar properties and conducting similar business (including, without
limitation, Borrower shall comply with the insurance requirements of
the Leasehold Mortgage); (ii) liability insurance in such amount and
for such coverage as are reasonable and proper in accordance with sound
business practices and as is customarily carried by persons conducting
similar business, of similar size and
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similarly situated and in the amounts and with the coverages required
by the Leasehold Mortgage; and (iii) such other insurance as may be
required by law or reasonably requested in writing by Lender. All such
insurance shall be with responsible and reputable insurance companies,
shall name Lender as an additional insured on all liability policies
and shall be cancelable or materially changed only after thirty (30)
days' prior written notice thereof to Lender.
5.4 Payment of Obligations and Expenses. Pay and discharge all of its
indebtedness, obligations and expenses promptly in accordance with
normal terms and practices of its business, before the same shall
become in default, as well as all lawful claims for labor, materials
and supplies which otherwise, if unpaid, might become a lien or charge
upon its properties, assets or any part thereof provided, however,
Borrower shall be entitled to contest such indebtedness, obligations
and expenses so long as there is no material risk of the lien or charge
upon its properties, or the Mortgaged Property.
5.5 Notice of Event of Default. At the time of Borrower's first knowledge
of an Event of Default (as hereinafter defined) or any condition which
could mature into an Event of Default, furnish Lender with written
notice of the occurrence of any such event or the existence of any such
condition which constitutes or upon written notice or lapse of time
would constitute an Event of Default.
5.6 Additional Information. Furnish such other information regarding the
operations, business affairs and financial condition of Borrower or its
property or assets as Lender may reasonably request from time to time,
including, but not limited to, true and complete copies of its books of
account and tax returns, current financial statements, maintenance
status of the Mortgaged Property and usage reports, and all information
furnished to shareholders, or any governmental authority.
5.7 Right of Inspection. Permit (and cause to permit) any person designated
by Lender, at Lender's expense, to visit and inspect any of the
properties, corporate books and financial reports of Borrower and to
discuss its respective affairs, finances and accounts with its
principal officers (as applicable), all at such reasonable times and as
often as Lender may reasonably request.
5.8 Assistance in Perfection of Security Interest. Join with Lender in
taking all steps necessary to perfect Lender's security interest in the
Mortgaged Property, including, but not limited to, the filing or
recording of any security
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agreement, assignment, financing statements, notice or other writing.
Costs incurred in performing under this paragraph shall be paid by
Borrower.
5.9 Liens. Not contract, create, incur, assume or permit to exist any Liens
except for the interests of Lender under this Agreement and the Loan
Documents.
5.10 Compliance with Laws. Comply with such laws, rules, and regulations and
maintain such permits and licenses under applicable law with respect to
the business of Borrower and with respect to the operation, ownership
and maintenance of the Mortgaged Property at all times during the term
hereof.
5.11 Indemnification. The Borrower agrees to indemnify, reimburse, and hold
harmless Lender from and against all claims, damages, losses,
liabilities, demands, suits, judgments, causes of action, civil and
criminal legal proceedings, penalties, fines, and other sanctions, and
any attorney fees and other reasonable costs and expenses, arising or
imposed with or without the Lender's fault or negligence or under the
doctrine of strict liability (collectively, "Claims"), relating to or
arising in any manner out of:
(a) This Agreement or any of the Loan Documents, or the breach of any
representation, warranty, or covenant made by the Borrower thereunder;
(b) Manufacture, purchase, lease, delivery, nondelivery, acceptance,
rejection, ownership, possession, use, or disposition of the Mortgaged
Property;
(c) The condition of the Mortgaged Property or any discoverable or
nondiscoverable defect in it arising from its design, or construction;
any article used in the Mortgaged Property; or any maintenance, service
or repair, whether or not the Mortgaged Property is in the Borrower's
possession ; or
(d) Any transaction, approval, or document contemplated by this
Agreement and any of the Loan Documents.
The Borrower waives and releases Lender from any existing or future
Claims in any way connected with injury to or death of the Borrower's personnel,
loss or damage of the Borrower's property, or loss of use of any property, which
may:
(e) Result from or arise in any manner out of this Agreement and any of
the Loan Agreements, condition, or use of the Mortgaged Property; or
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(f) Be caused by any defect in the Mortgaged Property; its design, or
construction; any article used in the Mortgaged Property; or any
maintenance, service, or repair, whether or not the Mortgaged Property
is in the Borrower's possession.
The indemnities described in this Section will continue in full force
and effect notwithstanding the expiration or other termination of this Agreement
or the Leasehold Mortgage and are expressly made for the benefit of and will be
enforceable by the Lender.
5.12 Merger, Consolidation. Except for the merger between Airways
Corporation and ValuJet, Inc. pursuant to agreement dated July 10,
1997, not merge with or into or consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or
in a series of transactions) all or substantially all of its assets
(whether now owned or hereafter acquired) to any entity, without the
prior written consent of Lender, which Lender may provide or withhold
in its sole discretion.
SECTION 6. DEFAULT
6.1 Events of Default. The occurrence of any one or more of the following
events shall constitute an "Event of Default" under this Agreement:
(a) Payment of Principal Balance. Nonpayment of the full principal
balance of the Note (plus accrued interest and unpaid premiums
or penalties) in accordance with the Note and this Agreement
on or prior to the Maturity Date;
(b) Payment of Installments of Interest. Nonpayment when due of
any installment payment of interest on the Note (and any
premium or penalty based thereon) when due;
(c) Representations and Warranties. Any representation or warranty
made by Borrower under this Agreement or any of the Loan
Documents or any report, certificate or statement made to
Lender pursuant hereto or in connection herewith shall prove
to be false, misleading, incomplete or untrue in any material
respect as of the date on which such representation or
warranty is made;
(d) Covenants. Any breach by Borrower of any other covenant, term,
agreement or condition contained herein, (other than payment)
in the Note or in the
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Leasehold Mortgage or in any other Loan Document and the same
shall continue unremedied for a period of fifteen (15) days
after written notice from Lender; or
(e) Bankruptcy or Insolvency. Borrower (i) files a petition in
bankruptcy or for the approval of a plan of reorganization or
arrangement under the Bankruptcy Reform Act of 1978, or an
involuntary petition in bankruptcy or plan of reorganization
is filed against Borrower, or an admission seeking the relief
therein provided and such proceeding shall not be dismissed
within thirty (30) days after the date of filing; (ii) is
unable, or admits in writing its inability, to pay its debts
as they become due; (iii) makes an assignment for the benefit
of creditors; (iv) files a petition or applies to any tribunal
for the appointment of a custodian, receiver or any trustee
for all or a substantial part of its assets; (v) by any act or
omission indicates its consent, approval of, or acquiescence
in the appointment of a receiver, custodian or trustee for all
or a substantial part of its property; (vi) is adjudicated a
bankrupt or insolvent; (vii) becomes insolvent however
otherwise evidenced; or (viii) ceases doing business as a
going concern; or
(f) Default of Other Indebtedness. Any indebtedness of Borrower
for borrowed money (other than the indebtedness owed to Lender
hereunder) shall become due and payable prior to the stated
maturity thereof resulting from a default thereunder, or if
such indebtedness shall not be paid at the maturity thereof or
any guaranty or similar obligation of Borrower is not
discharged at maturity or when due and called or if Borrower
shall otherwise be in material breach or default under any
agreement pursuant to which such indebtedness was incurred,
and Borrower fails to cure such default within (i) thirty (30)
days after written notice thereof, or (ii) any cure period
provided for under the agreement pursuant to which the default
occurred, whichever is less, and the aggregate amount of all
such indebtedness at the time exceeds five hundred thousand
Dollars ($500,000); or
(g) Failure of Effectivity. If this Agreement or any other Loan
Document shall at any time after its respective execution and
delivery and for any reason cease to be in full force and
effect or any certificate, instrument or documents issued and
executed pursuant hereto or thereto shall for any reason cease
to be effective to constitute a valid and perfected first
priority Lien
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and security interest in and to the Mortgaged Property; or
(h) Failure to Maintain Insurance. If there shall occur any lapse
of, or failure to maintain, insurance coverage on the
Mortgaged Property required to be maintained under the
Leasehold Mortgage;
(i) Sale, Transfer or Lease of the Mortgaged Property. If the
Mortgaged Property or any part thereof shall be sold,
transferred, assigned, leased or otherwise disposed of by
Borrower without the Lender's prior written consent; or
(j) Cross Default. There shall occur an event of default under any
other agreement between Borrower and Lender.
6.2 Effect of Event of Default. If any Event of Default described in
Section 6.1 hereof (other than as described in Section 6.1 (e) hereto)
shall occur, Lender may at its option, by written notice to Borrower,
declare the entire unpaid principal balance of the Note, as applicable,
all interest accrued and unpaid thereon and all other amounts payable
under this Agreement and all of the Loan Documents, immediately due and
payable, without presentment, demand, protest or further notice of any
kind, all of which are expressly waived by Borrower. Upon the
occurrence of an Event of Default described in Section 6.1(e) hereof,
the entire unpaid principal balance of the Note, all interest accrued
and unpaid thereon and all other amounts payable under this Agreement
and the Loan Documents shall automatically become immediately due and
payable with all additional interest accrued thereon and without
presentment, demand, protest or other notice of any kind. Lender may
also exercise any or all of the rights and remedies with respect to the
Mortgaged Property as provided to Lender pursuant to the Leasehold
Mortgage and the Note, as applicable and those rights and remedies
permitted by law, whether at law or in equity. In addition, if any
Event of Default shall have occurred, the Loan Rate on the unpaid
principal amount of the Note shall be increased to the lesser of, (i)
fifteen percent (15%) per annum or (ii) the highest lawful rate of
interest per annum permitted under the laws of the State of Florida
after the occurrence of the Event of Default until the Event of Default
is cured or the unpaid principal amount is paid, whether or not the
Lender accelerates payment.
SECTION 7. CONDITIONS PRECEDENT
7.1 Making Loan. The obligation of the Lender to make the Loan to
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Borrower hereunder is subject to the following conditions precedent:
(a) The Note. There shall have been delivered to Lender, the Note,
duly executed by Borrower, in form and substance satisfactory
to Lender and otherwise in accordance with Section 2 hereof.
(b) Security. Borrower shall have delivered to the Lender a duly
executed original copies of the Leasehold Mortgage and such
other documents, including, but not limited to, financing
statements, that Lender shall deem necessary to secure payment
in full of all amounts due hereunder or under the Note.
(c) Environmental Agreement. Borrower shall have executed and
delivered the Environmental Agreement.
(d) Certified Resolutions and Charter. Borrower shall have
delivered to Lender certified copies of (i) the resolutions of
the Board of Directors of Borrower authorizing the execution,
delivery and performance of this Agreement and all of the Loan
Documents and certified copies of all documents evidencing
other corporate action of Borrower, if any, with respect to
this Agreement and the Loan Documents, including a certificate
of the corporate secretary of Borrower attesting to the
incumbency of the officers executing all agreements hereunder,
and (ii) the current charter and by-laws of Borrower.
(e) Insurance. Borrower shall have delivered to Lender a
Certificate of Insurance evidencing compliance with this
Agreement and the Leasehold Mortgage in form and substance
satisfactory to Lender.
(f) No Default. As of the Closing Date, there shall exist no Event
of Default under this Agreement or any Loan Document.
(g) Release of SunTrust Lien and Title Insurance. Borrower shall
have delivered to Lender reasonably satisfactory evidence that
on the Closing Date, all interests of SunTrust in the
Mortgagees Property shall have been released the Mortgaged
Property is free of all liens, charges and encumbrances,
except the lien of the Leasehold Mortgage and Borrower shall
have delivered to Lender a policy of title insurance in form
and substance satisfactory to Lender, in its sole discretion.
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(h) Representations and Warranties. As of the Closing Date, all
representation and warranties of Borrower hereunder shall be
true and correct with the same force and effect as though made
on the Closing Date.
(i) Documents Acceptable. All documents, instruments and
certificates relating to the making of the Loan and all
proceedings in connection with the transactions contemplated
by this Agreement or any Loan Document shall be satisfactory
in form and substance to Lender.
In the event that Lender, in its sole and absolute discretion, waives
satisfaction of any condition set forth in this Section, such waiver shall
constitute a waiver only as to the time for
satisfaction of such condition, and Borrower shall be obligated to comply with
such condition as soon as practicable after the Closing Date, and in any event,
within thirty (30) days thereafter.
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SECTION 8. MISCELLANEOUS
8.1 Fees and Expenses. Borrower shall, on the Closing Date (or at any time
thereafter, at the election of Lender) reimburse Lender for all
reasonable out-of-pocket expenses incurred in connection with this
Agreement and the transactions contemplated hereby and thereby,
including, without limitation, all recordation fees and legal fees and
disbursements of Lender's counsel, and in connection with all
professional services rendered and disbursements incurred by said
counsel with respect to all transactions relevant to the subject matter
hereof. Borrower shall pay to Lender, on demand, any expenses or other
costs (including, without limitation, attorney's fees, disbursements,
expert witness fees, and all travel, hotel telephone, postage,
accounting, appraisal, inspection and consulting expenses) incurred by
Lender in connection with (i) the enforcement and collection against
Borrower or any other party (other than Lender) to any of the Loan
Documents of any provision thereof or indebtedness contemplated hereby,
(ii) any actual or threatened litigation, investigation or proceeding
relating to the Loan Documents, whether or not suit is instituted,
relating to any of the Loan Documents or the indebtedness contemplated
thereby; (iii) any proceeding or enforcement in any state of federal
bankruptcy or reorganization proceeding, and (iv) any actual or
proposed amendment of the Loan Documents or any of them or modification
of the indebtedness contemplated thereby.
8.1 Amendments. The provisions of this Agreement and any of the Loan
Documents may from time to time be amended, modified or waived with the
consent of Borrower and Lender, if such amendment or modification is in
writing and signed by all parties thereto.
8.2 Waivers. Lender shall not be deemed to have waived any of their rights
or remedies hereunder or under the Note, or the Leasehold Mortgage
unless such waiver is in writing and signed jointly by Lender and then
only to the extent specifically recited. No failure to exercise and no
delay or omission in exercising any right, remedy or recourse on the
part of Lender shall operate or be deemed as a waiver of such right,
remedy or recourse or any other right, remedy or recourse, nor shall
any single or partial exercise or any right, remedy or recourse
hereunder or thereunder preclude any other or further exercise thereof.
A waiver or release on any one occasion shall not be construed as
continuing, as a bar to, or as a waiver or release of any subsequent
right, remedy or recourse on any subsequent occasion. All rights and
remedies of Lender, whether pursuant to this Agreement or any of the
Loan Documents, or any other instrument, shall be
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cumulative and concurrent and may be exercised singularly, successively
or concurrently, at the sole discretion of Lender and may be exercised
as often as occasion therefor may exist. The rights of Lender
hereunder, under the Leasehold Mortgage and under the Note, shall be in
addition to all other rights and remedies provided at law or in equity.
8.3 Transferability of Mortgaged Property and Agreement. Borrower may not
transfer or assign any or all of its rights and/or obligations
hereunder or under the Leasehold Mortgage, or the Note without the
prior written consent of Lender. Borrower may not transfer all or part
of any of its interest in, to or under the Mortgaged Property without
the prior written consent of Lender.
8.4 Governing Law. This Agreement and all of the Loan Documents are be
governed by the internal laws of the State of Florida.
8.5 Enforceability of Agreement. Should any one or more of the provisions
of this Agreement or any of the Loan Documents be determined to be
illegal or unenforceable, all other provisions, nevertheless, shall
remain effective and binding on the parties hereto. It is the intention
of Borrower and Lender to contract in strict compliance with applicable
usury laws; and accordingly, in no event and upon no contingency shall
Lender ever be entitled to receive, collect or apply as interest any
interest, fees or other payment equivalent to interest, in excess of
the maximum rate which Lender may lawfully charge; and, in the event
that Lender ever receives, collects or applies as interest any such
excess, such amount which would be excessive interest shall be applied
to the reduction of the principal amount of the indebtedness owed
Lender, and if all principal and interest thereon is paid in full, any
remaining excess shall forthwith be paid to Borrower, or such other
party lawfully entitled thereto. In determining whether or not the
interest paid or payable, under the specific contingency, exceeds the
highest lawful rate, Borrower and Lender shall, to the maximum extent
permitted under applicable law, characterize any non- principal payment
as a reasonable loan charge rather than as interest. Any provision
hereof, or of any other agreement between Borrower and Lender, that
operates to bind, obligate or compel Borrower to pay interest in excess
of such maximum lawful rate, permitted to be charged form time to time,
shall be construed to require the payment of the maximum rate only. The
provisions of this Section 8.5 shall be given precedence over any other
provision contained herein or in any other agreement between Lender and
Borrower hereof that is in conflict with the provisions of this
Section.
8.6 Titles. Titles of the Sections of this Agreement are merely
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for convenience in reading and shall not be construed to alter, modify
or interpret the meaning of the provisions under said titles.
8.7 Definitions. All accounting terms used in this Agreement, if any, shall
have the meanings ascribed to them by generally accepted accounting
principles.
8.8 Notice. Notices shall be sent certified, postage prepaid return receipt
requested, by prepaid telex or telecopier, reputable overnight courier,
freight prepaid, or delivered by hand and shall be addressed to the
party to receive the same as follows or to such other addressee as may
be hereafter designated in writing by the respective parties hereto:
To Lender: ValuJet, Inc.
0000 Xxxxxxx Xxxx. Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, CFO
Telephone: 000 000 0000
Telecopier: 000 000 0000
To Borrower: AirTran Airways, Inc.
0000 Xxxxxxxxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Senior Vice President-Finance
Telephone: 000 000 0000 Ext. 298
Telecopier: 000 000 0000
8.10 Entire Agreement. This Agreement (including all Exhibits hereto), the
Loan Documents and all other documents delivered pursuant hereto shall
constitute the full and entire understanding and agreement of the
parties hereto and there are no further or other agreements or
undertakings, written or oral, in effect between the parties relating
to the subject matter hereof unless expressly referred to herein. All
prior negotiations and agreements concerning the subject matter hereof
between the parties hereto are superseded by this Agreement and the
Loan Documents.
8.11 Execution in Counterparts. This Agreement may be executed in any number
of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, Borrower and Lender have each caused this Loan Agreement to
be duly executed as of the date and year first above written.
AIRWAYS CORPORATION
Co-Borrower
By: /s/ M. B. Rinder
-------------------------------
Title: VICE PRESIDENT, FINANCE
-----------------------------
AND CHIEF FINANCIAL OFFICER
-----------------------------
AIRTRAN AIRWAYS, INC.
Co-Borrower
By: /s/ M. B. Rinder
-------------------------------
Title: VICE PRESIDENT, FINANCE
-----------------------------
AND CHIEF FINANCIAL OFFICER
-----------------------------
VALUJET, INC.
Lender
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------
Title: VICE PRESIDENT, FINANCE
-----------------------------
AND CHIEF FINANCIAL OFFICER
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EXHIBIT A
PROMISSORY NOTE
DATE OF NOTE: September 8, 1997
PRINCIPAL AMOUNT: $5,700,000
MATURITY DATE: December 3, 1997, unless accelerated earlier
pursuant to paragraph 2 hereof or extended as
set forth in the Loan Agreement.
INTEREST RATE: Twelve percent (12%) per annum
MAKER: Jointly and severally, AirTran Airways, Inc.
and Airways Corporation
MAKER'S ADDRESS: 0000 Xxxxxxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
PAYEE: ValuJet, Inc.
PAYEE'S ADDRESS: 0000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
FOR VALUE RECEIVED, the undersigned corporations (collectively, the
"Maker") do hereby jointly and severally covenant and promise to pay to the
order of the Payee or to its successors and assigns, at the Payee's Address or
at such other place as the Payee may designate to the Maker in writing from time
to time, in legal tender of the United States, the Principal Amount with
interest from the date hereof computed at the Interest Rate on the unpaid
balance of the Principal Amount at the times and in the amounts set forth
herein.
This Promissory Note is made and delivered pursuant to the terms of the Loan
Agreement between Maker and Payee dated as of 9/8, 1997 (the "Loan Agreement").
1. REQUIRED PAYMENTS. During the term hereof, payments will be
made as follows:
(a) INTEREST PAYMENTS. During the term of this Note,
the Maker shall pay interest monthly in arrears at the
Interest Rate, on the day of each month corresponding to the
date of this Note (the "Due Date")
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commencing on October 8, 1997 until the Maturity Date, at
which time the entire remaining unpaid principal balance and
all accrued but unpaid interest shall be due and payable in
full.
(b) PAYMENTS OF PRINCIPAL, MATURITY DATE. The Maker
shall pay, the Principal Amount (plus accrued interest) on or
before and no later than the Maturity Date, at which time the
entire remaining unpaid principal balance and all accrued but
unpaid interest shall be due and payable in full.
(c) MATURITY DATE. On the Maturity Date, the entire
remaining unpaid principal balance together with accrued but
unpaid interest shall be due and payable in full.
2. DEFAULT. The occurrence of any one or more of the following
conditions shall each and all constitute a condition of default under this Note:
(a) If any payment as set forth herein is not made
on this Note when due (i.e. the Due Date).
(b) If any condition of default whatsoever occurs
under the Leasehold Mortgage (as hereinafter defined) or any
other agreement whatsoever relating to any collateral that may
have been given for the payment of this Note and such default
remains uncured after any applicable cure periods.
(c) A default occurs under the terms and conditions
of any other agreement (including, without limitation, the
Loan Agreement or the Leasehold Mortgage) relating to the
obligation evidenced by this Note and such default remains
uncured after any applicable cure periods.
If any one or more of the foregoing conditions should occur, then the
entire principal balance and accrued and unpaid interest thereon shall become
due and payable at once or thereafter, at the option of the Payee, without
notice to or demand upon the Maker, or the Payee may exercise any and all other
rights available to it under applicable law or any other loan document, each of
which remedy shall be cumulative. Failure to exercise these options shall not
constitute a waiver of the right to exercise the same in the event of any
subsequent default.
3. LATE PAYMENT FEE, ETC. If any payment is not made within two
(2) days after the Due Date, then, in that event, there shall
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also be paid to the Payee, a late charge equal to five percent (5%) of the
payment that is due on the Due Date and not paid. The purpose of such late
charge shall be to reimburse the Payee for its costs and expenses in connection
with servicing a delinquent account. A payment which is not received on the due
date shall be deemed late. Further, if any payment shall not be paid when due,
then the entire principal balance and accrued and unpaid interest thereon shall
become due and payable at once or thereafter, at the option of the holder of
this Note, without notice to or demand upon the Maker. Failure to exercise these
options shall not constitute a waiver of the right to exercise the same in the
event of any subsequent default.
4. COSTS OF COLLECTION.The Maker agrees that they shall, jointly
and severally, pay all costs, expenses and reasonable attorneys' fees, incurred
by the Payee in connection with any aspect of this Note, including any default
as well as any proceedings which may involve this Note or any other loan
document relating hereto including, but not limited to, arbitration, litigation
bankruptcy proceedings, etc. The undersigned specifically agree that the event
of any bankruptcy of the Maker, the Payee shall be entitled to recover all its
expenses and reasonable attorneys, fees incurred by the Payee in regard to any
bankruptcy proceeding.
5. INTEREST/DEFAULT INTEREST, ETC. Interest under this Note is
computed on the basis of a 360 day year period, based on the actual number of
days elapsed. This Note and all sums due hereunder shall bear interest at the
lesser of (a) fifteen percent (15%) per annum or (b) the highest lawful rate of
interest per annum permitted under the laws of the State of Florida from the
date of a default hereunder. Notwithstanding any term, condition, obligation or
provision herein to the contrary, it is the expressed intent of the Payee that
no interest, consideration or charge in excess of that permitted in the State of
Florida may be accrued, charged or taken or become payable hereunder. In the
event it is hereafter determined that the Payee of this Note has taken, charged
or reserved interest in excess of that permitted under Florida law, whether due
to prepayment, acceleration or otherwise, such excess shall be refunded to the
Maker or credited against the sums due the Payee hereunder.
6. COLLATERAL. This Note is secured, inter alia, by a Leasehold
Mortgage and Security Agreement (the "Leasehold Mortgage") dated of even date
herewith from the Maker to the Payee, encumbering the Maker's leasehold interest
in certain real property situated in the State of Florida, and to which
reference is hereby made for a description of said real property, the nature and
extent of the security, the rights of the Payee in respect thereof and the terms
and conditions upon which this Note is
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issued. The Maker agrees that it shall be bound by any agreement extending the
time or modifying the above terms of payment made by the Payee and the owner of
the real property interest affected by the Leasehold Mortgage, whether with or
without notice to the Maker, and the Maker shall continue to be liable to pay
the amount due hereunder, but with interest at a rate no greater than the
Interest Rate according to the terms of any such agreement of extension or
modification. The unpaid balance of the Principal Amount, plus accrued interest,
shall become due and payable at the option of the Payee under the happening of
an event by which said balance shall or may become due and payable under the
terms of the Leasehold Mortgage or any other loan document relating to the Note,
the Leasehold Mortgage and the expiration of any applicable cure periods.
7. AMENDMENTS TO NOTE. This Note may not be changed orally, but
only by an agreement in writing, signed by the party against whom enforcement of
any waiver, change, modification or discharge is sought.
8. WAIVER OF PRESENTMENT, ETC. All parties to this Note, whether
Maker, endorser, surety, or guarantor, hereby waive presentment for payment,
demand, protest, notice of protest and notice of dishonor, and expressly agree
jointly and severally to remain and continue bound for the payment of the
principal and interest provided for by the terms of this Note, notwithstanding
any extension or extensions of the time of, or for the payment of said principal
or interest, or any change or the changes in the amount or amounts agreed to be
paid under or by virtue of the obligation to pay provided for in this Note, or
any changes or changes by way of release or surrender or substitution of any
real property and collateral or either, held as security for this Note, and
waive all and every kind of notice of such extension or extensions, change or
changes, and agree that the same may be made without the joinder of the Maker.
9. NOTICE. Written notices provided herein shall be sent by
registered or certified mail, postage pre-paid, return receipt requested, by
pre-paid telex or telecopier, reputable overnight courier, freight pre-paid, or
delivered by hand.
10. LAW GOVERNING. The provisions of this Note shall be construed
and interpreted in accordance with, and all rights and obligations of the
parties hereunder governed by, the laws of the state of Florida.
11. RESOLUTION OF DISPUTES/VENUE/ETC. The exclusive venue for any
proceeding shall be in the county where the Maker is located and, further, in
regard to any judicial proceeding, each party expressly waives any right to a
jury trial.
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12. PREPAYMENT. This Note may be prepaid in whole or in part at
any time without penalty.
ATTEST: AIRTRAN AIRWAYS, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx By: /s/ M. B. Rinder
------------------------------- --------------------------------
Xxxxxxxx Xxxxxxx Xxxx Xxxxxx
Company Secretary Vice President Finance and
Chief Financial Officer
ATTEST: AIRWAYS CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxxx By: /s/ M. B. Rinder
------------------------------- --------------------------------
Xxxxxxxx Xxxxxxx Xxxx Xxxxxx
Company Secretary Vice President Finance and
Chief Financial Officer
Documentary stamp taxes in the amount of $19,950.00 have been affixed to the
Leasehold Mortgage and Security Agreement securing this Note.
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EXHIBIT B
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
THIS LEASEHOLD MORTGAGE AND SECURITY AGREEMENT (the "Mortgage" or the
"Leasehold Mortgage") executed and delivered as of the 8th day of September,
1997, by:
AIRTRAN AIRWAYS, INC., a Delaware corporation, whose address is 0000
Xxxxxxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000 (hereinafter referred to as the
"Mortgagor"),
to
VALUJET, INC., a corporation organized under the laws of Nevada whose
address is 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000 (hereinafter
referred to as the "Mortgagee");
WITNESSETH:
That in consideration of the premises and in order to secure
(collectively, the "Obligations"):
A. The payment of:
(i) The principal, interest and any other sums
whatsoever payable at any time on that certain Promissory Note
dated of even date herewith from the Mortgagor and Airways
Corporation, a Delaware corporation (hereinafter individually,
the "Borrower" and collectively, the "Borrowers") to the
Mortgagee in the face amount of $5,700,000.00, as said note
may be amended, changed, modified, renewed or substituted for
from time to time (the "Note"),
(ii) All of the other obligations due the
Mortgagee under this Leasehold Mortgage,
(iii) All other obligations due the Mortgagee
under the Loan Agreement, the Note, this Leasehold Mortgage,
the Environmental Agreement, each as may be amended or
supplemented from time to time and including all exhibits and
attachments thereto any other document or agreement executed
in connection with such documents, the Note and
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THIS LEASEHOLD MORTGAGE AND SECURITY AGREEMENT IS EXEMPT FROM THE INCURRENCE OF
INTANGIBLE TAX BECAUSE IT IS A LEASEHOLD MORTGAGE AND NOT A FEE MORTGAGE. the
loan evidenced thereby and secured hereby (the "Loan Documents"); and
B. The performance and observance of:
(i) All the provisions of this Leasehold Mortgage,
(ii) All the provisions of the Note,
(iii) All the provisions of each other Loan Document, and
the Mortgagor hereby grants, sells, warrants, conveys, assigns, transfers,
mortgages and sets over and confirms unto the Mortgagee, all of the Mortgagor's
estate, right, title and interest in and to:
A. The Mortgagor's leasehold estate (the "Leasehold Interest") in
the real property (the "Real Property") situate in Orange County, Florida, and
more particularly described on Exhibit A attached hereto pursuant to and by
virtue of that certain Orlando Tradeport Maintenance Hangar Lease Agreement
dated December 11, 1989 by and between the Greater Orlando Aviation Authority
("GOAA") and Page Avjet Corporation ("PAC") as amended by Amendment No. 1 dated
June 22, 1990 by and between GOAA and PAC and as assigned to Mortgagor by
instrument dated February 29, 1996 by and among Mortgagor, PAC and Page Avjet
Holding Corporation, and as amended by Agreement and Second Amendment dated
January 25, 1996 by and between GOAA and Mortgagor (collectively, the "Lease").
The Lease is referenced in Memorandum of Lease Recorded in OR Book 4194 pg.
2005; Memorandum of Assignment recorded in OR Book 5028 pg. 1146, and Memorandum
of Amendment recorded in OR Book 5028 pg. 1152.
B. Together with the following (collectively, the "Additional
Property")
(i) The Mortgagor's Leasehold Interest in all buildings,
structures and improvements now or hereafter located on said Real
Property and all fixtures, equipment (excluding aircraft), machinery,
electrical and plumbing fixtures and lines, air conditioning and
heating equipment, now or hereafter located and situate therein and
leased to the Mortgagor by virtue of the Lease, and any replacements
thereof; and
(ii) All furnishings, furniture, goods, machinery,
apparatus, equipment, fittings, dies, motors, parts (including spare
parts and repair parts) and tools, together with all fittings,
accessories, accessions, additions,
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modifications, improvements, equipment and special tools now or
hereafter affixed to any or any part of the foregoing or used in
connection with any part of the foregoing and all replacements of any
part thereof, and to the extent owned by Mortgagor, any tangible
personal property (excluding aircraft) of every kind and nature
whatsoever of the Mortgagor now or hereafter located or situate on the
Real Property or in any buildings or improvements located upon the Real
Property, or any part thereof, or used or usable or intended to be used
in connection therewith, or with the operation of the Real Property,
all additions, improvements and betterments thereto or thereof, all
substitutions and replacements therefor and all products and Proceeds
of any of the foregoing, and any and all tenements, hereditaments,
easements, and appurtenances there unto belonging or in any way
appertaining, and all claims and demands, in law or in equity, of the
Mortgagor in and to any of the foregoing; and
(iii) All deposits made with, or other security given to,
utility companies by the Mortgagor or any other person on behalf of the
Mortgagor with respect to the Real Property, all of the Mortgagor's
rights relating to the Real Property or the operation thereof, or used
in connection therewith, including without limitation, all rights to
any permits, licenses, authorizations and approvals granted to or
otherwise held by the Mortgagor in regard to the Real Property, all
rights of the Mortgagor to any contracts relating to the Real Property
and all engineering, architectural and other plans, drawings and
specifications in connection therewith, and all other intangible rights
of the Mortgagor relating to the Real Property or used or usable in
connection therewith, the foregoing Leasehold Interest and Additional
Property hereinafter referred to collectively as the "Mortgaged
Property". To the extent any of the Mortgaged Property is deemed to be
personal property or fixture's under the Florida Uniform Commercial
Code, the Mortgagor does hereby grant to the mortgagee a security
interest in all of said personal property and fixtures.
TO HAVE AND TO HOLD the Mortgaged Property, together with all and
singular the tenements, hereditaments and appurtenances there unto belonging or
in anywise appertaining, with the reversion and reversions thereof, and all the
estate, right, title, interest, homestead, possession, claim and demand
whatsoever, as well in law as in equity, of the Mortgagor and unto the same, and
every part thereof, with the appurtenances of the Mortgagor in and to the same,
and every part and parcel thereof unto the Mortgagee.
The Mortgagor warrants that the Mortgagor has a good and marketable
title to and indefeasible fee estate in the Mortgaged Property subject to no
lien, mortgage, security interest or any other encumbrance of any nature
whatsoever except for the
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permitted encumbrances (the "Permitted Encumbrances") defined below, and the
Mortgagor covenants that this Mortgage is and will remain a valid and
enforceable mortgage on the Mortgaged Property subject only to the Permitted
Encumbrances. The Mortgagor has full power and lawful authority to mortgage the
Mortgaged Property in the manner and form herein done or intended hereafter to
be done. The Mortgagor will preserve such title and will forever warrant and
defend the same to Mortgagee and will forever warrant and defend the validity
and priority of the lien hereof against the claims of all persons whomsoever.
The Mortgagor will, at the cost of the Mortgagor, and without expense
to the Mortgagee, do, execute, acknowledge and deliver all and every one of such
further acts, deeds, conveyances, mortgages, assignments, notices of assignment,
transfers and assurances as the Mortgagee shall from time to time require in
order to preserve the priority of the lien of this Mortgage or to facilitate the
performance of the terms hereof.
PROVIDED, HOWEVER, that if the Mortgagor shall pay or cause to be paid
to Mortgagee the indebtedness in the principal sum of $5,700,000.00 as evidenced
by the Note, from which the Mortgagor has directly benefitted, executed by the
Mortgagor and payable to the order of the Mortgagee, with interest and upon the
terms as provided therein, together with all other sums advanced by the
Mortgagee to or on behalf of the Mortgagor pursuant to the Note, any other Loan
Documents or this Mortgage, or otherwise due and owing by the Mortgagor to the
Mortgagee at any time, and all of the other obligations as set forth above and
secured hereby, and shall perform all other covenants and conditions of the
Note, all of the terms of which Note are incorporated herein by reference as
though set forth fully herein, and of any renewal, extension or modification
thereof, and of this Mortgage, the other Loan Documents and such other
obligations, then this Mortgage and the estate hereby created shall cease and
terminate.
The Mortgagor further covenants and agrees with the Mortgagee as
follows:
1. PAYMENT OF NOTE. The Mortgagor shall pay all sums,
including interest secured hereby, when due as provided for in the Note and any
renewal, extension or modification thereof and in this Mortgage, all such sums
to be payable in lawful money of the United States of America at the Mortgagee's
aforesaid principal office or at such other place as the Mortgagee may designate
from time to time in writing. As set forth above, the term "Note" means and
includes any and all amendments, changes, modifications, renewals, replacements
and substitutions of or to said Note.
2. PAYMENT OF TAXES AND FEES ON OR RELATED TO MORTGAGED
PROPERTY. The Mortgagor shall pay when due, and before any delinquency or
default shall occur, and without requiring any
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notice from the Mortgagee, all taxes, assessments, dues, charges (including
utility charge), fees, levies, fines, impositions, liabilities, obligations and
encumbrances of any type or nature and other charges levied or assessed against
the Mortgaged Property or any part thereof or this Mortgage or the indebtedness,
or other sums secured hereby, or upon or against the interest of Mortgagee in
the Mortgaged Property and, in each case shall produce receipts therefor upon
demand.
3. PAYMENT OF ENCUMBRANCES. The Mortgagor shall immediately pay
and discharge (or transfer in full to a bond) any lien (except for Permitted
Encumbrances) against the Mortgaged Property which may be or become superior to
this Mortgage including, without limitation, any mechanic's lien arising from or
relating back to the "Commencement Notice" set forth in the title commitment
referenced in Section 32(b) hereof, and shall not permit any default or
delinquency on any other lien, against the Mortgaged Property (including
Permitted Encumbrances). In regard to any Permitted Encumbrances, the Mortgagor
shall at all times keep current and not default under any Permitted Encumbrance.
4. MONTHLY DEPOSITS FOR TAXES AND INSURANCE. If required by the
Mortgagee, the Mortgagor shall make monthly deposits with the Mortgagee, in a
non-interest bearing account, together with and in addition to payments of
interest and Principal due under the Note, of a sum equal to one-twelfth of the
yearly taxes and assessments which may be levied against the Mortgaged Property
and for which the Mortgagor is or may be liable, if any, and (if so required)
one-twelfth of the yearly premiums for insurance thereon. The amount of such
taxes, assessments and premiums, when unknown, shall be estimated by Mortgagee.
Such deposits shall be used by the Mortgagee to pay such taxes, assessments and
premiums when due. Any insufficiency of such account to pay such charges when
due shall be paid by the Mortgagor to the Mortgagee on demand. If, by reason of
any default by the Mortgagor under any provision of this Mortgage, the Mortgagee
declares all sums secured hereby to be due and payable, the Mortgagee may then
apply any funds in said account against the entire indebtedness secured hereby.
The enforceability of the covenants relating to taxes, assessments and insurance
premiums herein otherwise provided shall not be affected except insofar as those
obligations have been met by compliance with this paragraph. The Mortgagee may
from time to time at its option waive, and after any such waiver reinstate, any
or all provisions hereof requiring such deposits, by notice to the Mortgagor in
writing. While any such waiver is in effect, the Mortgagor shall pay taxes,
assessments and insurance premiums as herein elsewhere provided.
5. PAYMENT OF TAXES AND ASSESSMENTS ON MORTGAGE. The Mortgagor
shall promptly pay all taxes and assessments assessed or levied under and by
virtue of any state, federal or municipal law or regulation hereafter passed
against the Mortgagee upon this
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Mortgage or the debt hereby secured, or upon its interest under this Mortgage,
provided however, that in the event of the passage of any such law or regulation
imposing a tax or assessment against the Mortgagee upon this Mortgage or the
debt secured hereby, that the entire indebtedness secured by this Mortgage shall
thereupon become immediately due and payable at the option of the Mortgagee.
6. INSURANCE. The Mortgagor shall keep the Mortgaged Property
insured against loss or damage by fire, and all perils insured against by an
extended coverage endorsement, and such other risks and perils as the Mortgagee
in its discretion may require, and shall comply, at all times, with all
insurance requirements. The policy or policies of such insurance shall be in the
form in general use from time to time in the locality in which the Mortgaged
Property is situated, shall be in such amount as the Mortgagee may reasonably
require, shall be issued by a company or companies licensed in the State of
Florida and rated "A" or better according to the current Best's Key Rating
Guide, shall contain a standard mortgagee clause with loss payable to the
Mortgagee by New York Standard or Union Standard long form endorsements and
shall specifically provide that the same shall not be canceled or modified
adversely to the interest of the Mortgagee without thirty (30) days prior
written notice to the Mortgagee by the insurer. Whenever required by the
Mortgagee, such policies shall be delivered immediately to and held by the
Mortgagee. Any and all amounts received by Mortgagee under any such policies may
be applied by the Mortgagee on the indebtedness secured hereby in such manner as
the Mortgagee may, in its sole discretion, elect or, at the option of the
Mortgagee, the entire amount so received or any part thereof may be released.
Neither the application nor the release of any such amounts shall cure or waive
any default under this Mortgage. Upon exercise of the power of sale given in
this Mortgage or other acquisition of the Mortgaged Property or any part thereof
by the Mortgagee, such policies shall become the absolute property of the
Mortgagee.
7. ZONING. The Mortgagor hereby represents, covenants and
warrants that all applicable zoning laws, ordinances and regulations affecting
the Real Property and the buildings, structures and improvements located thereto
permit the use and occupancy thereof as an aircraft maintenance hangar facility.
8. CONSENT TO CHANGES IN MORTGAGED PROPERTY AND THE LEASE. The
Mortgagor shall first obtain the written consent of the Mortgagee, which consent
shall not be unreasonably withheld before: (a) removing or demolishing any
building now or hereafter erected on the Mortgaged Property; (b) altering the
arrangement, design or structural character thereof; (c) making any repairs
which involve the removal of structural parts or the exposure of the interior of
such building to the elements; (d) removing or exchanging any tangible personal
property which is part of the Mortgaged Property; or (e) entering into any
amendments, modifications, supplements, renewals or replacements of the Lease.
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9. MAINTENANCE OF MORTGAGED PROPERTY. The Mortgagor shall
maintain the Mortgaged Property in good condition and repair, including, but not
limited, to the making of such repairs as the Mortgagee may from time to time
determine to be necessary for the preservation of the Mortgaged Property, and
shall not commit or permit any waste thereof. The Mortgagee shall have the right
to inspect the Mortgaged Property on reasonable notice to the Mortgagor.
10. COMPLIANCE WITH LAWS, THE LEASE, ETC. The Mortgagor shall
comply with all laws, statutes, ordinances, regulations, covenants, conditions
and restrictions affecting the Mortgaged Property, including, without
limitation, to the extent applicable, The Americans With Disabilities Act of
1990 (42 U.S.C. Section 12101 et seq) and the Florida Americans With
Disabilities Accessibility Implementation Act, and all rules and regulations
promulgated thereunder, as such laws, rules and regulations may from time to
time be amended or modified, all Environmental Laws (as defined in the
Environmental Indemnification Agreement (the "Environmental Agreement") by and
between the Mortgagor and the Mortgagee of even date herewith) and all
easements, restrictive covenants and conditions that may be applicable to the
Mortgaged Property and shall not cause or permit any violation thereof. The
Mortgagor shall comply with all of the terms and conditions of the Lease and
timely perform its obligations thereunder, including payment of all lease
payments required thereby and shall promptly provide Mortgagee with notice of
any default or claim of default under the Lease on the part of either party
thereto.
11. FAILURE TO PAY ENCUMBRANCES/MAINTAIN PROPERTY. If the
Mortgagor fails (i) to pay any claim, lien or encumbrance on the Mortgaged
Property, regardless of whether it is superior or junior to this Mortgage,
(provided, however, this clause shall not by itself authorize or permit any
placement of a junior encumbrance on the Mortgaged Property), (ii) to pay when
due, any tax or assessment or insurance premium, (iii) to keep and maintain the
Mortgaged Property in repair, or shall commit or permit waste, then the
Mortgagee, may at its option, may, but is not required to, pay said claim, lien,
encumbrance, tax, assessment or premium, with right of subrogation thereunder,
may make such repairs and take such steps as it deems advisable to prevent or
cure such waste, and take such action therein as the Mortgagee deems advisable,
and for any of such purposes the Mortgagee may advance such sums of money,
including all costs, reasonable attorneys, fees and other items of expense as it
deems necessary and all of such sums of money shall be secured by the lien of
this Mortgage. The Mortgagee shall be the sole judge of the legality, validity
and priority of any such claim, lien, encumbrance, tax, assessment and premium
and of the amount necessary to be paid in satisfaction thereof. The Mortgagee
shall not be held accountable for any
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delay in making any such payment, which delay may result in any additional
interest, costs, charges, expenses or otherwise.
12. PAYMENT OF ADVANCES. The Mortgagor will pay to the Mortgagee,
immediately and without demand, all sums of money advanced by the Mortgagee to
protect the security hereof pursuant to this Mortgage, including without
limitation all costs reasonably incurred by the Mortgagee in evaluating or
correcting dangerous, harmful or unlawful conditions found to exist on or about
the Mortgaged Property, reasonable attorneys' fees and other items of expense,
together with interest on each such advance at the rate of interest otherwise
provided herein, and all such sums and interest thereon shall be secured hereby.
13. AMOUNTS ABSOLUTELY DUE. The Mortgagor shall pay all sums of
money secured hereby without any relief whatever from any valuation or
appraisement laws.
14. SPECIAL CONDITIONS. During the term of this Mortgage and the
obligations secured hereby, the Mortgagor shall comply with the following
additional special conditions:
(a) In the event of default or an Event of Default
hereunder or under any of the obligations secured hereby, the
Mortgagee shall have the option, in its sole discretion, of
requiring the Mortgagor and Airways Corporation to provide
cash collateral in the amount of the outstanding balance from
time to time of the Note. In the event the Mortgagee elects to
require such additional cash collateral, such additional
collateral shall be deposited with the Mortgagee within five
(5) days of the request therefor by the Mortgagee and
Mortgagor and Airways Corporation shall execute any documents
considered necessary by Mortgagee or its counsel in connection
therewith.
15. EVENTS OF DEFAULT. Each and all of the following shall each
constitute an event of default (an "Event of Default") hereunder:
(a) A default occurs under the Note.
(b) A default occurs under paragraphs 6, 12 or 14 of
this Mortgage.
(c) A default occurs under any other term or
condition of this Mortgage and, if capable of being remedied,
such default shall remain unremedied for 30 days after the
earlier of (i) Borrowers obtaining knowledge thereof, and (ii)
written notice thereof shall have been given to Borrowers by
Mortgagee.
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(d) A default occurs under the terms and conditions
of the Leasehold Mortgage or any other Loan Document.
(e) The occurrence of a default under the Lease which
is not cured within any applicable cure period.
(f) The Lease is terminated or not renewed for any
reason whatsoever.
(g) If the Federal Aviation Administration shall at
any time during the term of this Mortgage restrict the ability
of the Mortgagor to fly its regularly scheduled routes on a
regular basis or otherwise restrict the Mortgagor's ability to
operate its business as presently conducted.
16. REMEDIES UPON DEFAULT. Upon the happening and during the
continuance of any Event of Default, the Mortgagor may exercise to any one or
more of the following remedies, each of which shall be cumulative:
(a) All of the indebtedness secured hereby shall
become and be immediately due and payable at the option of the
Mortgagee, without notice or demand which are hereby expressly
waived, in which event the Mortgagee may (but shall be under
no duty or obligation to) avail itself of all rights and
remedies, at law or in equity, including without limitation,
those available to a secured party upon default under the
Florida Uniform Commercial Code;
(b) This Mortgage may be foreclosed with all rights
and remedies afforded by the laws of the State of Florida and
the failure to make any landlords party defendant to any such
foreclosure proceedings and to foreclose their rights will not
be, nor be asserted by Mortgagor to be, a defense to any
proceedings instituted by Mortgagee to collect the sums
secured hereby;
(c) Any other remedies provided by law or under any
other loan document including the Note or any other Loan
Documents.
In connection with the exercise of any such remedies, the Mortgagor shall pay
all costs and expenses incurred by the Mortgagee in (i) enforcing this Mortgage,
(ii) preserving, securing or protecting the Mortgaged Property, (iii) evaluating
any conditions on or about the Mortgage Property, including environmental
assessments, surveys or studies, (iv) realizing upon the Mortgaged Property or
any part thereof, and (v) collecting any
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of the indebtedness secured hereby, including without limitation reasonable
attorneys' fees whether suit is brought or not and whether incurred in
connection with collection, at trial, on rehearing, retrial or appeal, in
bankruptcy or otherwise.
17. DEFAULT INTEREST/LATE CHARGES/INTEREST ON ADVANCES. The
Mortgagor further agrees to pay as follows:
(a) Upon the occurrence of any default, the
indebtedness secured hereby shall bear interest without notice
or demand at the default rate of interest set forth in the
Note, from and after the date of any such default of the
Mortgagor.
(b) If the Note provides for installment payments,
the Mortgagee may at its option, collect a late charge as may
be provided for in the Note, to reimburse the Mortgagee for
expenses in collecting and servicing such installment
payments.
(c) If the Mortgagee should extend any advances for
or in behalf of the Mortgagor, the Mortgaged Property, or
otherwise as permitted under this Mortgage.
18. RIGHT TO RECEIVER ON DEFAULT. Upon the happening and during
the continuance of any Event of Default:
(a) The Mortgagee is authorized at any time, without
notice, in its sole discretion to enter upon and take
possession of the Mortgaged Property or any part thereof,
subject to the Lease, and to exclude Mortgagor and its agents
and employees wholly therefrom and may have joint access with
Mortgagor to the books, papers, records and accounts of
Mortgagor and to perform any acts the Mortgagee deems
necessary or proper to conserve the security; and
(b) Upon such entering upon or taking of possession,
Mortgagee may hold, store, use, operate, manage and control
the Mortgaged Property and conduct the business thereof, and
from time to time, make all necessary and proper maintenance,
repairs, renewals, replacements, additions, betterments and
improvements thereto and thereon and purchase or otherwise
acquire additional fixtures, personalty and other property,
insure or keep the Mortgaged Property insured, manage and
operate the Mortgaged Property and exercise all rights and
powers of Mortgagor in its name or otherwise with respect to
the same and enter into agreements with others to exercise the
powers herein granted Mortgagee, all as Mortgagee in its
reasonable judgment from time
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to time may determine; and Mortgagee may collect and receive
all the income, revenues, rents, issues and profits of the
same, including those past due as well as those accruing
thereafter; and
(c) The Mortgagee shall be entitled, as a matter of
strict right, without notice and ex parte, and without regard
to the value or occupancy of the security, or the solvency of
the Mortgagor, or the adequacy of the Mortgaged Property as
security for the Note, to have a receiver appointed to enter
upon and take possession of and operate the Mortgaged
Property, collect the income, revenues, rents, issues and
profits therefrom and apply the same as the court may direct,
such receiver to have all the rights and powers permitted
under the laws of Florida.
In either such case, the Mortgagee or the receiver may also take possession of,
and for these purposes use, any and all personal property which is a part of the
Mortgaged Property and used by the Mortgagor in or arising from the sale, rental
or leasing thereof or any part thereof. The expense (including receiver's fees,
counsel fees, costs and agent's compensation) incurred pursuant to the powers
herein contained shall be secured hereby. The Mortgagee shall (after payment of
all costs and expenses incurred) apply such income, revenues, rents, issues,
proceeds and profits received by it on the indebtedness secured hereby in such
order as the Mortgagee determines. The right to enter and take possession of the
Mortgaged Property, to manage and operate the same, and to collect the income,
revenues, rents, issues, proceeds and profits thereof, whether by a receiver or
otherwise, shall be cumulative to any other right or remedy hereunder or
afforded by law, and may be exercised concurrently therewith or independently
thereof. The Mortgagee shall be liable to account only for such income,
revenues, rents, issues, proceeds and profits actually received by the
Mortgagee.
19. CUMULATIVE RIGHTS ON DEFAULT. If the indebtedness secured
hereby is now or hereafter further secured by mortgages, security interests,
financing statements, pledges, contracts of guaranty, assignments of leases or
other securities, or if the Mortgaged Property hereby encumbered consists of
more than one parcel of real property, the Mortgagee may, at its option, exhaust
any one or more of said securities and security hereunder, or such parcels of
the security hereunder, either concurrently or independently, and in such order
as it may determine. All such remedies may be exercised by the Mortgagee without
any marshalling of assets, which marshalling of assets the Mortgagor does hereby
expressly waive.
20. FUTURE ADVANCES. This Mortgage shall secure not only existing
indebtedness, but also such future advances, whether such
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advances are obligatory or to be made at the option of the Mortgagee or
otherwise, as are made within twenty (20) years from the date hereof, to the
same extent as if such future advances were made on the date of the execution of
this Mortgage, but such secured indebtedness shall not exceed at any time the
maximum principal amount of two times the amount of the Note, plus interest
thereon, and any-disbursements made for the payment of taxes, levies or
insurance on the Mortgaged Property with interest on such disbursements. Any
such future advances, whether obligatory or to be made at the option of the
Mortgagee or otherwise, may be made either prior to or after the due date of the
Note or any other obligations secured by this Mortgage. This Mortgage is given
for the specific purpose of securing any and all indebtedness by the Mortgagor
to the Mortgagee (but in no event shall the secured indebtedness exceed at any
time the maximum principal amount set forth in this paragraph) in whatever
manner this indebtedness may be evidenced or represented until this Mortgage-is
satisfied of record. All covenants and agreements contained in this Mortgage
shall be applicable to all further advances made by the Mortgagee to the
Mortgagor under this future advance clause. The Mortgagor agrees that it will
not without the consent of the Mortgagee, execute and record any notice limiting
the right of the Mortgagee to make or the Mortgagor to accept future advances
hereunder.
21. NO WAIVER. No delay by the Mortgagee in exercising any right
or remedy hereunder, or otherwise afforded by law, shall operate as a waiver
thereof or preclude the exercise thereof during the continuance of any Event of
Default hereunder. No waiver by the Mortgagee of any Event of Default shall
constitute a waiver of or consent to subsequent Events of Default. No failure of
the Mortgagee to exercise any option herein given to accelerate maturity of the
debt hereby secured; no forbearance by the Mortgagee before or after the
exercise of such option and no withdrawal or abandonment of foreclosure
proceedings by the Mortgagee shall be taken or construed as a waiver of its
right to exercise such option or to accelerate the maturity of the debt hereby
secured by reason of any past, present or future default on the part of the
Mortgagor; and, in like manner, the procurement of insurance or the payment of
taxes or other Liens or encumbrances by the Mortgagee shall not be taken or
construed as a waiver of its right to accelerate the maturity of the debt hereby
secured.
22. RELEASE RIGHTS OF MORTGAGEE. Without affecting the liability
of the Mortgagor or any other person (except any person expressly released in
writing) for payment of any indebtedness secured hereby or for performance of
any obligation contained herein, and without affecting the rights of the
Mortgagee with respect to any security not expressly released in writing, the
Mortgagee may, at any time and from time to time, either before or after the
maturity of the Note, and without notice or consent:
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(a) Release any person liable for payment of all or
any part of the indebtedness evidenced by the Note or for
performance of any of the other obligations;
(b) Make any agreement extending the time or
otherwise altering the terms of payment of all or any part of
the indebtedness evidenced by the Note, or modifying or
waiving any of the other obligations, or subordinating,
modifying or otherwise dealing with the lien or charge hereof;
(c) Exercise or refrain from exercising or waive
any right the Mortgagee may have;
(d) Accept additional security of any kind; and
(e) Release or otherwise deal with any property, real
or personal, securing the indebtedness, including all or any
part of the Mortgaged Property.
23. NO FURTHER LIENS OR ENCUMBRANCES. The Mortgagor shall not,
without the Mortgagee's consent, grant to any other person whatsoever any lien,
mortgage or any other encumbrance whatsoever on any of the Mortgaged Property.
Any attempt by the Mortgagor to do so shall constitute a default hereunder.
Further, any such mortgage or encumbrance shall be invalid and shall not
constitute any lien on the Mortgaged Property. Included within the term
"Mortgaged Property" is the express right of the Mortgagor to grant to any third
party any further interest or right in the Mortgaged Property, whether by virtue
of any junior encumbrance, easement, etc.
24. PRIORITY OVER FUTURE LIENS OR ENCUMBRANCES. Any amendment or
modification of this Mortgage hereafter made by the Mortgagor and the Mortgagee
pursuant to this Mortgage shall be superior to the rights of the holder of any
Lien on the Mortgaged Property arising subsequent to the date of this Mortgage
(provided, however, that this clause shall not by itself authorize or permit any
subsequent liens or encumbrances on the Mortgaged Property which are otherwise
prohibited under the terms of this Mortgage).
25. CONDEMNATION. In the event of condemnation proceedings of the
Mortgaged Property or any part thereof, the award or compensation payable
thereunder is hereby assigned to and shall be paid to the Mortgagee. The
mortgagee shall be under no obligation to question the amount of any such award
or compensation and may accept the same in the amount in which the same shall be
paid. In any such condemnation proceedings, the Mortgagee may be represented by
counsel selected by the Mortgagee. The proceeds of any award or compensation so
received shall, at the option of the Mortgagee, either be applied to the
prepayment of the Note and at
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the rate of interest provided therein, regardless of the rate of interest
payable on the award by the condemning authority, or at the option of the
Mortgagee, such award shall be paid over to the Mortgagor for restoration of the
Mortgaged Property.
26. DUE ON SALE. The loan evidenced by the Note and secured by
this Mortgage is personal to the Mortgagor and the Mortgagee made the loan to
the Mortgagor based upon the credit of the Mortgagor and the Mortgagee's
judgment of the ability of the Mortgagor to repay all sums due under this
Mortgage, and therefore this Mortgage may not be assumed by any subsequent
holder of an interest in the Mortgaged Property. If all or any part of the
Mortgaged Property or any interest therein, is sold, conveyed, transferred
(including a transfer by agreement for deed or land contract), abandoned or
further encumbered by the Mortgagor or if the Mortgagor shall cease operating an
aircraft maintenance hangar facility on the Real Property, without the
Mortgagee's prior written consent, excluding partial releases of portions of the
Mortgaged Property as provided herein, then in that event the Mortgagee may
declare all sums secured by this Mortgage immediately due and payable.
27. SEVERABILITY. In the event any one or more of the provisions
contained in this Mortgage or in the Note shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall, at the option of the Mortgagee, not affect any other
provisions of this Mortgage, and this Mortgage shall then be construed as if
such invalid, illegal or unenforceable provision had never been contained herein
or therein. The total interest payable pursuant to the Note or this mortgage
shall not in any one year exceed the highest lawful rate of interest allowed by
the law of the State of Florida.
28. SUCCESSORS AND ASSIGNS. The covenants and agreements herein
contained shall bind, and the benefits and advantages shall inure to the
respective heirs, executors, administrators, successors and assigns of the
parties hereto; provided, however, that this paragraph shall not of itself
authorize the Mortgagor to sell or transfer the Mortgaged Property.
29. MISCELLANEOUS. Wherever used, the singular number shall
include the plural, the plural the singular and the use of any gender shall be
applicable to all genders. If more than one Mortgagor executes this Mortgage,
the term "Mortgagor" includes each of the mortgagors, and all covenants,
agreements and ,undertakings hereunder shall be joint and several. Time is of
the essence of this Mortgage. The captions set forth to the paragraphs in this
Mortgage are for convenience only and do not limit, expand or define the terms
and conditions of this Mortgage.
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30. FINANCIAL STATEMENTS OF THE MORTGAGOR. During the term of this
Mortgage, each Borrower shall furnish the Mortgagee (a) annually, (i) within
ninety (90) days of the expiration of its fiscal year, an Audited financial
statement of such Borrower, containing the unqualified opinion of a Certified
Public Accountant acceptable to the Mortgagee, together with (A) a certification
of the Chief Financial officer of the Borrowers that no default exists under the
loan documents or any other obligations of such Borrower to the Mortgagee and
(B) a certificate confirming the Borrowers, compliance with all financial
covenants and ratios, in form and substance acceptable to the Mortgagee and
certified to the Mortgagee by an authorized financial officer of such Borrower,
(ii) promptly upon receipt thereof, a copy of any management letters submitted
to either Borrower by its independent Certified Public Accountant, and (iii)
within thirty (30) days after their filing, copies of such Borrower's Federal
Income Tax Return; (b) on a quarterly basis, an internally prepared Form 10Q
filed with the Securities and Exchange Commission within forty-five (45) days of
the end of each calendar quarter, certified to the Mortgagee by an authorized
financial officer of such Borrower; and (c) with reasonable promptness, such
other financial information as the Mortgagee may request.
31. GOOD STANDING OF THE MORTGAGOR. The Mortgagor represents and
warrants that it is now and will be during the term of this Mortgage a duly
formed and validly existing corporation in the state of its incorporation, and
is fully qualified to do business in the State of Florida, with full power and
authority to consummate the loan secured hereby.
32. PERMITTED ENCUMBRANCES. The Mortgage granted hereby is not
subject to any encumbrance, mortgage, security interest or any other lien of any
nature whatsoever on the Mortgaged Property except for the following Permitted
Encumbrances;
(a) Taxes and assessments occurring subsequent to
December 31, 1996 (provided, however, this shall not relieve
the Mortgagor of its obligation to pay said taxes and
assessments as set forth herein).
(b) Matters as set forth in that certain First
American Title Insurance Company title commitment issued on
September 5, 1997 under Commitment No. FA-CC-95.03899.
33. ADDITIONAL AMOUNTS SECURED BY MORTGAGE. This Mortgage secures,
in addition to amounts due under the Note and as otherwise set forth in this
Mortgage, any and all amounts which may be expended or incurred by the Mortgagee
in connection with the Mortgaged Property including, but not limited to, the
costs for any appraisals, title updates or searches, environmental audits or
reviews including, but not limited to, any matters under
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the Environmental Agreement, all regardless of whether or not any default has
occurred.
34. WAIVER OF JURY TRIAL. THE MORTGAGOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY, AFTER CAREFUL CONSIDERATION AND AN OPPORTUNITY TO
SEEK LEGAL ADVICE, WAIVES ITS RIGHT TO HAVE A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY OF THE PROVISIONS OF
THIS MORTGAGE, THE NOTE, THE LOAN DOCUMENTS, OR ANY OTHER DOCUMENTS EXECUTED IN
CONJUNCTION WITH THE LOAN SECURED BY THIS MORTGAGE.
35. COMPLETE AGREEMENT. This Mortgage constitutes the complete
agreement between the parties hereto and it may not be amended, changed or
modified except by a writing signed by the party to be charged by said
amendment, change or modification.
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the Mortgagor has duly executed this Mortgage as of
the day and year first above written.
Signed and delivered
in the presence of: AIRTRAN AIRWAYS, INC.
/s/ Xxxxx X. Fides, II By: /s/ M. B. Rinder
--------------------------- -------------------------------
(Signature of Witness) Vice President Finance and Chief
Financial Officer
Xxxxx X. Fides, II
---------------------------
(Print Name of Witness)
/s/ Xxxxxxx Xxxxxxxx
---------------------------
(Signature of Witness)
Xxxxxxx Xxxxxxxx
---------------------------
(Print Name of Witness)
As to the "Mortgagor"
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 8th day of
September, 1997 by Xxxx Xxxxxx, as Vice President Finance and Chief Financial
Officer of Airtran Airways, Inc., a Delaware corporation, on behalf of the
corporation.
/s/ Xxxxx X. Fides, II
--------------------------------------
Signature of Notary Public - State of
Florida
Xxxxx X. Fides, II
My commission CC569828 --------------------------------------
Expires July 16, 2000 Print, type or stamp commissioned name
of Notary Personally known X OR
Produced Identification ____
Type of Identification Produced:
----------------
(NOTARIAL SEAL)
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JOINDER BY CO-BORROWER
The undersigned, being the Co-Borrower under the loan made pursuant to
that certain Loan Agreement dated as of _______________, 1997 between and among
AirTran Airways, Inc. and Airways Corporation as Co-Borrowers and ValuJet, Inc.,
as Lender (the "Loan Agreement") and co-Maker of the Note delivered under the
Loan Agreement, does hereby absolutely and unconditionally agree to be bound by
and to comply with the terms, conditions and obligations of the foregoing
Leasehold Mortgage and Security Agreement. The obligation of the undersigned Co-
Borrower shall, as set forth above, survive any repayment of the loan made under
the Loan Agreement, and this obligation may not be canceled in any way
whatsoever by the Co-Borrower.
Dated this 8th day of September, 1997.
Signed and delivered
in the presence of: AIRTRAN AIRWAYS, INC.
/s/ Xxxxx X. Fides, II By: /s/ M. B. Rinder
------------------------------ -------------------------------
(Signature of Witness) Vice President Finance and Chief
Financial Officer
Xxxxx X. Fides, II
------------------------------
(Print Name of Witness)
/s/ Xxxxxxx Xxxxxxxx
------------------------------
(Signature of Witness)
Xxxxxxx Xxxxxxxx
------------------------------
(Print Name of Witness)
As to the "Mortgagor"
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 8th day of
September, 1997, by Xxxx Xxxxxx, as Vice President Finance and Chief Financial
Officer of Airtran Airways, Inc., a Delaware corporation, on behalf of the
corporation.
/s/ Xxxxx X. Fides, II
--------------------------------------
Signature of Notary Public - State of
Florida
Xxxxx X. Fides, II
My commission CC569828 --------------------------------------
Expires July 16, 2000 Print, type or stamp commissioned name of
Notary Personally known X OR
Produced Identification ____
Type of Identification Produced:
----------------
(NOTARIAL SEAL)
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EXHIBIT "A"
LEGAL DESCRIPTION
A part of Xxxxxxx 0, Xxxxxxxx 00 Xxxxx, Xxxxx 30 East, Orange County,
Florida, being more particularly described as follows:
Commence at the Southeast corner of said Xxxxxxx 0, Xxxxxxxx 00 Xxxxx,
Xxxxx 00 Xxxx, (Xxxxxxxx are based on the Florida Coordinate System, East Zone);
thence North 89 (degree) 22'42" West along the South line of said Section 8 for
986.48 feet; thence North 00 (degree) 25'23" West for 1108.89 feet to a line
being 150.00 feet Southeasterly of and parallel with the centerline of Taxiway
No. 2; thence South, 54 (degree) 38'04" West along said line for 121.99 feet to
the Point of Beginning; thence continue South 54 (degree) 38'04" West along
said line for 774.06 feet; thence South 35 (degree) 21'56" East for 660.00
feet; thence North 54 (degree) 38'04" East for 312.91 feet; thence North 00
(degree) 25'23" West for 805.14 feet to the Point of Beginning.
AND that certain parcel more particularly described as follows:
Commence at the Southeast corner of Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx
30 East, Orange County, Florida (bearings are based on the Florida Coordinate
System, East Zone); thence North 89 (degree) 22'42" West along the South line of
said Section 8 for 986.48 feet; thence North 00 (degree) 25'23" West for 1108.89
feet to line being 150.00 feet Southeasterly of and parallel with the centerline
of Taxiway No. 2; thence South 54 (degree) 38'04" West for 121.99 feet; thence
South 00 (degree) 25'23" East along said line for 686.73 feet to the Point of
Beginning, thence continue North 55 (degree) 00'19" East along said line for
91.00 feet; thence North 34 (degree) 59'41" West for 19 feet; thence North 55
(degree) 00'19" East for 85 feet; thence South 34 (degree) 59'41" East for 25
feet; thence' North 55 (degree) 00'19" East for 55 feet; thence South 34
(degree) 59'41" East for 42 feet; thence South 55 (degree) 00'19" West for 55
feet; thence South 34 (degree) 59'41" East for 25 feet; thence South 55 (degree)
00'19" West for 45 feet; thence North 88 (degree) 07'29" West for 50 feet;
thence North 34 (degree) 59'41" West for 23 feet; thence South 55 (degree)
00'19" West for 104.78 feet; thence North 00 (degree) 25'23" West for 24.29 feet
to the Point of Beginning.
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EXHIBIT C
ENVIRONMENTAL INDEMNIFICATION AGREEMENT
This Environmental Indemnification Agreement (the "Agreement") made and entered
into this 8th day of September, 1997 by and between
AirTran Airways, Inc., a Delaware corporation, 0000 Xxxxxxxxx Xxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxx 00000 (the "Mortgagor")
and
ValuJet, Inc., a Nevada corporation, 0000 Xxxxxxx Xxxx., Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000 (the "Mortgagee").
W I T N E S S E T H:
WHEREAS, The Mortgagor has applied to the Mortgagee for a loan (the "Loan") in
the amount of $5,700,000.00, and which Loan is to be secured by a Leasehold
Mortgage on the Mortgagor's leasehold interest in certain real property (the
"Property") situate, lying and being in Orange County, Florida, the legal
description of which Property is attached hereto as Exhibit "A"; and
WHEREAS, the Mortgagee has entered into with Mortgagor that certain Loan
Agreement (the "Loan Agreement") dated September 8, 1997 pursuant to which
the Mortgagee has agreed to extend the Loan (as defined in the Loan Agreement)
to the Mortgagor provided certain conditions as set forth in the Loan Agreement
are met; and
WHEREAS, it is a condition for the Mortgagee to make the Loan that Mortgagor
agrees to:
A. Represent and warrant to the Mortgagee that to the best of the
Mortgagor's knowledge the Property has never contained, does not
presently contain and will not in the future contain any Hazardous
Substances (as hereinafter defined except as permitted by this
Agreement and in accordance with all applicable Environmental Laws; and
B. Subject to the provisions of this Agreement, indemnify and hold the
Mortgagee harmless from and against all claims, damages, expenses
(including reasonable attorneys' fees), liabilities and all other
obligations which may arise as a result of the Property at any time
containing, discharging or otherwise giving rise to any Hazardous
Substances; and
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C. Obtain at the request or the Mortgagee in the event the Mortgagee
has reason to believe that there are environmental concerns with
respect to the Property and Environmental Report (as hereinafter
defined) from an Environmental Professional (as hereinafter defined)
provider reasonably acceptable to the Mortgagee setting forth in
acceptable form a report as to the status of the Property and its
environmental condition; and
D. Clean-up any Hazardous Substances associated with the Property.
WHEREAS, the Mortgagee is unwilling to make the Loan unless the Mortgagor
executes and delivers this Agreement to the Mortgagee.
NOW, THEREFORE, in consideration and mutual premises herein contained, the
parties do hereby agree as follows:
1. DEFINITIONS. For the purposes of this Agreement, the following definitions
shall apply:
TERM DEFINITION
---- ----------
"ENVIRONMENTAL ACTION" shall mean any action, proceeding or
investigation, claim complaint, letter,
document or any other writing whatsoever by
any governmental agency or any other third
person of any nature whatsoever in which
there is raised a claim, inquiry or question
regarding the Property, including, but not
limited to, any alleged or actual violation
of any Environmental Law with respect to the
Property, any business conducted on the
Property, whether or not there are any
Hazardous Substances stored, treated,
disposed or released on the Property, and
whether the Property or actions conducted on
the Property are in compliance with all
Environmental Laws.
"ENVIRONMENTAL REPORT" shall mean an audit, assessment or report
prepared with respect to the Property and
meeting the following conditions or
requirements:
-43-
44
A. The Report shall be prepared by an
Environmental Professional
acceptable to the Mortgagee, which
Professional shall be experienced
in providing environmental audits,
assessments or reports in the area
where the Property is located.
B. The Report shall disclose any and
all Hazardous Substances located
on, impacting or in any other way
affecting the Property as well as
any other environmental matters on
which the Mortgagee may request
that a report be furnished.
C. The Report shall be directed to the
Mortgagee and shall, to the extent
obtainable, contain no limitations
of liability on the part of the
provider in the case of the
Mortgagee.
"ENVIRONMENTAL LAWS" shall mean all environmental laws, rules and
regulations whether Federal, state or local
including, without limitation, the Resource
Conservation and Recovery Act, as amended
(RCRA), 42 USC ss.6901 et -- seq., and the
Comprehensive --- Environmental Response
Compensation and Liability Act of 1980, as
amended (CERCLA), 42 USC ss.6901 et -- seq.,
and all amendments and --- supplements
thereto.
"ENVIRONMENTAL PROFESSIONAL" shall mean a person possessing sufficient
training and experience necessary to conduct
a site reconnaissance, interviews, and other
activities in determining whether the
Property and its use complies with all
Environmental Laws, the existence of any
Hazardous Substances on the Property, and
any required Remedial
-44-
45
Work, and from the information generated by
such activities, having the ability to
develop conclusions regarding recognized
environmental conditions in connection with
the Property. An individual's status as an
environmental professional may be limited to
the type of assessment to be performed or to
specific segments of the assessment for
which the professional is responsible. The
person may be an independent contractor or
an employee of the user.
"EXISTING ENVIRONMENTAL
REPORT" shall mean that certain Phase I/II
Environmental Site Assessment report dated
February 29, 1996 of the Property by Xxxxxxx
Environmental Services, Inc. Project No.
96E-0148.
"HAZARDOUS SUBSTANCES" shall mean all hazardous and toxic
substances, wastes or materials, all
pollutants or contaminants, asbestos, or
other similar substances, and all raw
materials containing such substances which
are regulated under any Environmental Law,
including, but not limited to, all petroleum
based substances such as gasoline and oil
based products. As such, reference to
"Hazardous Substances" is not limited to
substances which necessarily are "hazardous
or toxic" but includes any substances
regulated under any local, state or federal
law whether or not those substances are
"hazardous or toxic".
"LOAN DOCUMENTS" shall mean any and all documents whatsoever
relating to the Loan including, but not
limited to, any promissory or mortgage note
evidencing the Loan and all Mortgage
Documents.
-45-
46
"MORTGAGE DOCUMENTS" shall mean all documents granting to the
Mortgagee any lien, mortgage, security
interest or other encumbrance of any nature
whatsoever on the Property and includes, but
is not limited to, any mortgage.
"PERMITTED USE" shall mean all lawful uses and purposes
incidental to the ownership and operation of
one or more passenger airlines, cargo
airlines, and airline and aircraft
operations, maintenance, refurbishment and
support businesses.
"RELEASE" shall mean any spilling, leaking migrating,
pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching,
dumping, or disposing into the environment
of any Hazardous Substances.
"REMEDIAL WORK" shall mean any work required under any
Environmental Law, by any agreement, by any
final judicial order, or by any final order
of any governmental entity as it relates to
the Property.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS IN REGARD TO THE PROPERTY.
Mortgagor hereby represents and warrants to and covenants with, the Mortgagee as
follows:
(a) That to the best of Mortgagor's knowledge after due inquiry and
investigation, and except as expressly set forth in paragraph 3 below,
and except as set forth in the Existing Environmental Report, none of
the Property has ever been used by the Mortgagor or any of Mortgagor's
predecessors in title, nor by anyone else (including, by way of
illustration and not limitation, any tenants which may occupy any
portion of the Property), to generate, manufacture, refine, transport,
treat, store, handle or dispose of Hazardous Substances, nor have any
Hazardous Substances ever been present on the Property, except in
compliance with all applicable Environmental Laws.
-46-
47
(b) That the Mortgagor has not received any notice, whether oral or
written, of any Environmental Action, nor does the Mortgagor have any
reason to believe that any Environmental Action is pending or
threatened.
(c) That the use and operation of the Property complies, and shall
continue to comply, with all Environmental Laws.
(d) Any Hazardous Substances located, stored, used and generated upon
or at the Property shall be in full compliance with all applicable
Environmental Laws, and shall be consistent with the Permitted Use.
(e) That except as set forth in paragraph 8 below, the Property does
not contain any underground or aboveground tanks storing Hazardous
Substances.
The provisions of this paragraph, and the representations, and warranties and
covenants contained herein, are absolute and unconditional and do not depend in
any way whatsoever on any knowledge or notice which the Mortgagor may have with
respect to the matters set forth in this paragraph. Thus, for example, even if
the Mortgagor after due diligence and investigation is of the knowledge that
there are no Hazardous Substances located on the Property, the provisions of
this paragraph shall nevertheless obligate the Mortgagor hereunder if any
Hazardous Substances are located at any time upon the Property, and the fact
that the Mortgagor had no such knowledge shall not in any way whatsoever relieve
the Mortgagor of any of its duties and obligations under this Agreement.
3. PERMITTED USE OF HAZARDOUS SUBSTANCES. The Property has previously been used,
is currently being used, and will continue to be used for the Permitted Use. In
that regard:
(a) Said Permitted Use shall not be in violation of this Agreement
provided that said Permitted Use is otherwise in full compliance with
this Agreement and all Environmental Laws.
(b) In any event, the provisions of paragraphs 2 above and 5 below
shall continue to apply and, in that regard, the Mortgagor shall
indemnify and hold the Mortgagee harmless in regard to said Permitted
Use and the presence on the Property of any Hazardous Substances
arising out of any Permitted Use.
4. ENVIRONMENTAL REPORT IN THE EVENT OF RELEASE OF HAZARDOUS SUBSTANCES. In the
event the Mortgagee shall have reason to believe that there are environmental
concerns with respect to the
-47-
48
Property or any Release has occurred in connection with or upon the Property,
the Mortgagor shall, at the request of the Mortgagee, obtain at his own expense
an Environmental Report under the following conditions:
(a) The cost for the Report shall be paid for by the Mortgagor.
(b) The Report may be required from time to time by the Mortgagee, and
the fact that such a report has not been required from time to time by
the Mortgagee shall not constitute a waiver as to the right of the
Mortgagee hereunder to require that said Reports be furnished from time
to time.
In the event said Report should disclose any Hazardous Substances located,
treated, stored, disposed or released on the Property or if said Report should
otherwise recommend any actions, including any Remedial Work, to be taken in
regard to any Hazardous Substances, the Mortgagor shall promptly, at his
expense, remove and/or respond to said Hazardous Substances and comply with such
recommendations.
Should the Mortgagor fail to obtain such a Report within thirty (30) days after
the Mortgagee's request, the Mortgagee shall have the right to retain an
Environmental Professional to perform such a Report and the Environmental
Professional retained by the Mortgagee shall have a right of access to the
Property to perform such work as deemed necessary by the Environmental
Professional to complete the Environmental Report, including, but not limited
to, the collection of air, groundwater, surface water, sediment, soil and
building material samples.
5. INDEMNIFICATION FOR HAZARDOUS SUBSTANCES. The Mortgagor does hereby indemnify
and agree to hold the Mortgagee harmless from and against all claims, damages,
expenses (including reasonable attorneys' fees), liabilities and all other
obligations (including, without limitation, third party claims for personal
injury or real or personal property damage) which the Mortgagee may incur or be
exposed to as a result of any one or more of the following:
(a) The breach of any representation, warranty, covenant, term or
condition contained in this Agreement.
(b) Any damages arising out of the Permitted Use as set forth above.
(c) The breach by the Mortgagor of any of its obligations to furnish an
Environmental Report as set forth above.
-48-
49
(d) The presence, suspected presence, threat of release, release or
suspected release of any Hazardous Substance in, on or into the air,
soil, surface water, groundwater or soil vapor at, on, about, under,
within or from the Property, or any portion thereof, including, without
limitation, any Hazardous Substance identified by the Mortgagor or
Mortgagee.
(e) In the event the Mortgagor fails to undertake Remedial Work in
accordance with this Agreement, any costs or expenses which may be
incurred by the Mortgagee in performing Remedial Work in connection
with removing any Hazardous Substances from the Property; provided,
however, nothing contained in this Agreement or in any other Loan
Document shall impose any duty or obligation whatsoever upon the
Mortgagee to so clean up the Property.
(f) Any Environmental Action connected in any way with the Property.
(g) Any act of the Mortgagor, tenants, or other users of the Property,
or their respective agents or employees, in arranging for transport,
disposal or treatment, or arranging with a transporter for transport,
disposal or treatment, of Hazardous Substances owned or possessed by
Mortgagor by any other party or entity, at any facility or incineration
vessel owned or operated by another party or entity and containing such
or similar Hazardous Substances.
(h) Any acts of the Mortgagor, tenants or other users of the Property,
or their respective agents or employees, who accept or accepted any
Hazardous Substances for transport to disposal or treatment facilities,
incineration vessels or sites selected by Mortgagor from which there is
a Release, or a threatened Release which causes the incurrence of
remediation costs of a Hazardous Substance.
6. NOTICE OF ENVIRONMENTAL ACTION. If the Mortgagor receives any notice of:
(a) The occurrence of any release on the Property, whether or not the
same occurred in connection with the operations thereon of the
Mortgagor, tenants or other users of the Property; or
(b) Any Environmental Action,
then the Mortgagor immediately shall notify Mortgagee orally and immediately
thereafter in writing of said Release or Action. In
-49-
50
the event it is determined that any Remedial Work must be taken with regard to
the presence, whether past, present or future, of any such Hazardous Substances
on the Property, the Mortgagor covenants and agrees to take all such Remedial
Work necessary to promptly bring the Property into compliance with all
Environmental Laws, regardless of whether or not the Mortgagor caused said
Release or Action.
7. REMEDIAL WORK. In the event any Remedial Work is required under any
applicable federal, state or local law or regulation, including, but not limited
to, any Release, by any final judicial order, or by any final order of
governmental entity, or as required by any Environmental Report, the Mortgagor
shall:
(a) Perform or cause to be performed the Remedial Work all in
compliance with all Environmental Laws.
(b) Agrees that all Remedial Work shall be performed by one or more
qualified consultants or contractors selected by the Mortgagor and
approved in advance in writing by the Mortgagee.
(c) Agrees that all costs and expenses of such Remedial Work shall be
paid by the Mortgagor, including, without limitation, the charges of
such consultants and contractors, the Mortgagee's reasonable attorney's
and paralegal's fees and costs (which may, at the Mortgagee's option,
include consultants and contractors hired by the Mortgagee to monitor
the Remedial Work) incurred in connection with monitoring or review of
such Remedial Work.
(d) Agrees that in the event the Mortgagor shall fail to timely
commence, or cause to be commenced, or fail to diligently prosecute to
completion such Remedial Work, the Mortgagee may, but shall not be
required to, cause such Remedial Work to be performed after providing
written notice to the Mortgagor, and shall have the right to access to
the Property for the Environmental Professional retained by Mortgagee
to conduct such Remedial Work. All costs and expenses thereof, or
incurred in connection therewith. All such costs and expenses shall be
due and payable upon demand therefor by the Mortgagee, and shall be
secured by the Mortgage Documents.
8. STORAGE TANKS. The Mortgagor represents and warrants that the Property
currently does not contain any underground or above- ground tanks storing
Hazardous Substances except:
Four (4) 500-gallon diesel fuel above-ground storage tanks ("AST")
associated with the emergency fire deluge pumps on the property, these
ASTs being in secondary containment.
-50-
51
Two (2) 10,000-gallon ASTs and one (1) 10,000-gallon underground
storage tank associated with the existing floor drain collection
system.
In regard to such tanks and any other tanks which may at any time be located
upon the Property, the Mortgagor represents and warrants that:
(a) The operation, use and maintenance of all such tanks used to store
and disburse Hazardous Substances which are presently or in the future
installed at the Property, shall in all respects comply with all
Environmental Laws;
(b) The Mortgagor will enroll in and will remain enrolled in the
Florida Petroleum Liability Insurance and Restoration Program (if
applicable); and
(c) That said tanks will be operated and maintained in accordance with
all Environmental Laws.
9. MORTGAGEE'S RESERVED RIGHTS. In the event of receipt of notice of
Environmental Action, the Mortgagee shall have the right, but not the obligation
(and without limitation of Mortgagee's rights under this Agreement) to enter
onto the Property or to take such other actions as it shall deem necessary or
advisable to clean up, remove, resolve or minimize the impact of, or otherwise
deal with, any such Hazardous Substances or Environmental Action following
receipt of any notice from xxx person or entity having jurisdiction asserting
the existence of any Hazardous Substances or an Environmental Action pertaining
to the Property or any part thereof which, if true, could result in an order,
suit or other action against the Mortgagor and/or which, in the Mortgagee's sole
opinion, could jeopardize its security under the Mortgagee. All costs and
expenses, including reasonable attorneys' fees, incurred by the Mortgagee in the
exercise of any such rights shall be secured by the Mortgage Documents and shall
be payable to the Mortgagee by the Mortgagor upon demand.
10. DEFAULT UNDER LOAN DOCUMENTS. The (i) breach of any representations,
warranties or covenants contained in this Agreement, or (ii) failure of the
Mortgagor to comply with any of the terms or conditions contained in this
Agreement shall each be and constitute a default under each and all of the Loan
Documents. In such event, the Mortgagee shall be entitled at its option to
immediately accelerate and declare the Loan as being due and owing in full, and
the Mortgagee shall be entitled to exercise any and all rights available to the
Mortgagee under all Loan Documents and applicable law.
-51-
52
11. COSTS TO BE SECURED BY MORTGAGE DOCUMENTS. Any costs or expenses, including
any reasonable fees due any attorneys or any Environmental Professional, which
may be incurred by the Mortgagee under this Agreement, including, but not
limited to, any costs incurred for any Environmental Report or Remedial Work,
shall be secured by all the Mortgage Documents.
12. SURVIVAL OF AGREEMENT. This Agreement is separate and apart from each and
every other Loan Document relating to the Loan, and the provisions of this
Agreement and the obligations of the Mortgagor hereunder, shall survive (i) the
payment of the Loan, (ii) any action which the Mortgagee may take in regard to
the Property such as, but not limited to, the foreclosure action or any
acceptance by Mortgagee of any deed in lieu of foreclosure (provided, however,
nothing contained herein shall obligate the Mortgagee to accept any deed of lieu
of foreclosure), and (iii) any other term or provisions of the Loan.
13. JOINT AND SEVERAL LIABILITY. In the event the Mortgagor is more than one,
the obligations of all such persons under this Agreement shall be joint and
several.
-52-
53
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and
year first above written.
Signed and delivered AirTran Airways, Inc.
in the presence of:
/s/ Xxxxx X. Fides, II By: /s/ M. B. Rinder
--------------------------- ------------------------------
(Signature of Witness) Title: Vice President Finance and
---------------------------
Xxxxx X. Fides, II Chief Financial Officer
---------------------------
(Print Name of Witness)
/s/ Xxxxxxx Xxxxxxxx
---------------------------
(Signature of Witness)
Xxxxxxx Xxxxxxxx
---------------------------
(Print Name of Witness)
As to the "Mortgagor"
ValuJet, Inc.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------- -----------------------------
(Signature of Witness)
Title:
--------------------------- --------------------------
(Print Name of Witness)
---------------------------
(Signature of Witness)
---------------------------
(Print Name of Witness)
As to the "Mortgagee"
-53-
54
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 8th day of September,
1997, by Xxxx Xxxxxx as Vice President Finance and Chief Financial Officer of
AirTran Airways, Inc., a Delaware corporation, on behalf of the corporation.
/s/ Xxxxx X. Fides, II
------------------------------
Signature of Notary Public
State of Florida
Xxxxx X. Fides, II ------------------------------
My commission CC569828 Print, type or stamp
Expires July 16, 2000 commissioned name of Notary
Personally known X or
Produced Identification ___
Type of Identification
Produced: _____________
(Notarial Seal)
STATE OF GA
COUNTY OF XXXXXXX
The foregoing instrument was acknowledged before me this 5th day of September,
1997, by __________________, as ____________ of ValuJet, Inc.,
a Nevada corporation, on behalf of the corporation.
/s/ Xxxxxx X. Head
-------------------------------------
Signature of Notary Public
State of Georgia
Notary Public, Xxxxxx County, Georgia
-------------------------------------
My commission expires June 21, 1999
Print, type or stamp
commissioned name of Notary
Personally known ___ or
Produced Identification ___
Type of Identification
Produced: _____________
(Notarial Seal)
-54-
55
JOINDER BY CO-BORROWER
The undersigned, being the Co-Borrower under the Loan, does hereby absolutely
and unconditionally agree to be bound by the obligations of the Mortgagor under
this Environmental Indemnification Agreement and to guaranty payment and
performance of same. The obligation of the undersigned Co-Borrower shall, as set
forth above, survive any repayment of the Loan, and this obligation may not be
canceled in any way whatsoever by the Co-Borrower.
Dated this 8th day of September, 1997.
Signed and delivered Airways Corporation
in the presence of:
/s/ Xxxxx X. Fides, II By: /s/ M. B. Rinder
--------------------------- ------------------------------
(Signature of Witness)
Title: Vice President, Finance
Xxxxx X. Fides, II ---------------------------
--------------------------- and Chief Financial Officer
(Print Name of Witness)
/s/ Xxxxxxx Xxxxxxxx
---------------------------
(Signature of Witness)
Xxxxxxx Xxxxxxxx
---------------------------
(Print Name of Witness)
As to the "Co-Borrower"
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 8th day of September,
1997, by Xxxx Xxxxxx as VP Finance & CFO Airways Corporation, a Delaware
corporation on behalf of the corporation.
/s/ Xxxxx X. Fides, II
------------------------------
Signature of Notary Public
State of Florida
Xxxxx X. Fides, II ------------------------------
My commission CC569828 Print, type or stamp
Expires July 16, 2000 commissioned name of Notary
Personally known X or
Produced Identification ___
Type of Identification
Produced: _____________
(Notarial Seal)
-55-
56
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
A part of Xxxxxxx 0, Xxxxxxxx 00 Xxxxx, Xxxxx 30 East, Orange County,
Florida, being more particularly described as follows:
Commence at the Southeast corner of said Xxxxxxx 0, Xxxxxxxx 00 Xxxxx,
Xxxxx 00 Xxxx, (Xxxxxxxx are based on the Florida Coordinate System, East Zone);
thence North 89 (degree) 22'42" West along the South line of said Section 8 for
986.48 feet; thence North 00 (degree) 25'23" West for 1108.89 feet to a line
being 150.00 feet Southeasterly of and parallel with the centerline of Taxiway
No. 2; thence South, 54 (degree) 38'04" West along said line for 121.99 feet to
the Point of Beginning; thence continue South 54 (degree) 38'04" West along said
line for 774.06 feet; thence South 35 (degree) 21'56" East foR 660.00 feet;
thence North 54 (degree) 38'04" East for 312.91 feet; thencE North 00 (degree)
25'23" West for 805.14 feet to the Point of Beginning.
AND that certain parcel more particularly described as follows:
Commence at the Southeast corner of Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx
30 East, Orange County, Florida (bearings are based on the Florida Coordinate
System, East Zone); thence North 89 (degree) 22'42" West along the South line of
said Section 8 for 986.48 feet; thence North 00 (degree) 25'23" West for 1108.89
feet to line being 150.00 feet Southeasterly of and parallel with the centerline
of Taxiway No. 2; thence South 54 (degree) 38'04" West for 121.99 feet; thence
South 00 (degree) 25'23" East along said line for 686.73 feet to the Point of
Beginning, thence continue North 55 (degree) 00'19" East along said line for
91.00 feet; thence North 34 (degree) 59'41" West for 19 feet; thence North 55
(degree) 00'19" East for 85 feet; thence South 34 (degree) 59'41" East for 25
feet; thence' North 55 (degree) 00'19" East For 55 feet; thence South 34
(degree) 59'41" East for 42 feet; thence South 55 (degree) 00'19" West for 55
feet; thence South 34 (degree) 59'41" East FOr 25 feet; thence South 55 (degree)
00'19" West for 45 feet; thence North 88 (degree) 07'29" West for 50 feet;
thence North 34 (degree) 59'41" West For 23 feet; thence South 55 (degree)
00'19" West for 104.78 feet; thence North 00 (degree) 25'23" West for 24.29 feet
to the Point of Beginning.
-56-
57
[XXXXXXXXX XXXXXXX LETTERHEAD]
Xxxxx X. Xxxxxx, Paralegal
Direct Line: (000) 000-0000
September 24, 1997
VIA CERTIFIED MAIL -
RETURN RECEIPT REQUESTED
------------------------
Xx. Xxxx X. Xxxxxx
Vice President, Finance & Chief Financial Officer
AIRTRAN AIRWAYS, INC.
0000 Xxxxxxxxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Re: AIRTRAN AIRWAYS, INC. AND AIRWAYS CORPORATION LOAN FROM VALUJET, INC.
Dear Xx. Xxxxxx:
Enclosed for your safekeeping are the following documents and/or items in
connection with the captioned transaction:
1. Original Satisfaction of Mortgage and Release of Other Documents
recorded on September 9, 1997, in Official Records Book 5323, Page
4615, Public Records of Orange County, Florida;
2. Original acknowledgment copy of the UCC-3 Termination filed with the
Florida Secretary of State on September 11, 1997, under File
No. 970000205255--9;
3. Original Loan Agreement;
4. Original Payoff Letter from SunTrust Bank, Central Florida, N.A.,
acknowledging payment in full of Loan No. 0000000000-18 in the amount
of $1,553,272.23;
5. Original Environmental Indemnification Agreement; and
6. Closing Binder containing photocopies of all closing documents.
Please call if you should have any questions.
Sincerely,
XXXXXXXXX TRAURIG
/s/ Xxxxx X. Xxxxxx
----------------------
Xxxxx X. Xxxxxx
Paralegal
enclosures
cc: Xx. Xxxxxxx Xxxxxxx (w/o encls. via U.S. Mail)
58
XXXXXXXXX TRAURIG Orange Co. FL 1997-0326873
000 Xxxxx Xxxxxx Xxxxxx 000000 03:13:53pm
20th Floor OR Bk 5323 Pg 4613
Xxxxxxx, XX 00000 Rec 10.50
THIS DOCUMENT PREPARED BY:
Xxxxx X. Fides, II, Esquire
XXXXXXXXX TRAURIG XXXXXXX
XXXXXX XXXXX & XXXXXXX, P.A.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
SATISFACTION OF MORTGAGE AND RELEASE OF OTHER DOCUMENTS
KNOW ALL MEN BY THESE PRESENTS, that SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION, the owner and holder of those certain loan documents
recorded in the Official Records of Orange County, Florida, more particularly
described as follows:
1. Leasehold Mortgage and Security Agreement executed by AIRTRAN
AIRWAYS, INC., a Delaware corporation, in favor of SUNTRUST BANK, CENTRAL
FLORIDA, NATIONAL ASSOCIATION, recorded March 18, 1996, in Official Records
Book 5028, Page 1158; modified by Mortgage Modification recorded June 27, 1997
in Official Records Book 5281, Page 4665, of the Public Records of Orange
County, Florida.
2. Financing Statement (Form UCC-1) reflecting AIRTRAN AIRWAYS, INC.,
a Delaware corporation, as DEBTOR, and SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL
ASSOCIATION, as SECURED PARTY, recorded March 18, 1996, in Official Records
Book 5028, Page 1179, of the Public Records of Orange County, Florida.
3. Unrecorded Letter of Credit Facility Agreement dated March 7, 1996,
executed by AirTran Airways, Inc. and Airways Corporation in favor of SunTrust
Bank, Central Florida, National Association.
4. Unrecorded Security Agreement dated March 7, 1996, executed by
AirTran Airways, Inc. and Airways Corporation in favor of SunTrust Bank,
Central Florida, National Association.
which loan documents encumber the property as described therein, does hereby
acknowledge full payment and satisfaction of said Mortgage, and all
indebtedness secured thereby, including, but not limited to, that certain
Promissory Note in the original principal amount of $2,000,000.00, and
surrender the same as canceled, and does hereby authorize and direct the Clerk
of the Circuit Court of Orange County, Florida to cancel said Mortgage and
UCC-1 Financing Statement of record.
IN WITNESS WHEREOF, the undersigned has caused these presents to be
executed in its corporate name by its officers thereunto duly authorized and
its corporate seal to be hereunto affixed this 5th day of September, 1997.
Signed, sealed and delivered SUNTRUST BANK, CENTRAL FLORIDA,
in the presence of: NATIONAL ASSOCIATION
/s/ Xxxxx Vendegerghe By:/s/ W. Xxxx Xxxxxxx
--------------------------------- -----------------------------
Print Name: Xxxxx Vandegerghe Name: W. Xxxx Xxxxxxx
---------------------- ---------------------------
/s/ Xxxx X. Xxxxxx-Xxxxx Title: First Vice President
--------------------------------- --------------------------
Print Name: Xxxx X. Xxxxxx-Xxxxx 000 Xxxxx Xxxxxx Xxxxxx
---------------------- Xxxxxxx, Xxxxxxx 00000
59
OR Bk 5323 Pg 4616
Orange Co FL 1997-????
Recorded-Xxxxxx X. Xxxxxx
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 5th day of
September, 1997, by W. Xxxx Xxxxxxx, as Vice President of SUNTRUST BANK,
CENTRAL FLORIDA, NATIONAL ASSOCIATION, a national banking association, on
behalf of said association. He/she is personally known to me (X) or has
produced ___________________________ as identification.
/s/ M.E. Xxxxxx
------------------------------------
NOTARY PUBLIC
Print Name: Xxxx X. Xxxxxx
-------------------------
My Commission Expires:
[SEAL]
XXXX X. XXXXXX
My Commission CC383030
Expires Apr. 01, 1998
Bonded by ANB
000-000-0000
60
STATE OF FLORIDA
UNIFORM COMMERCIAL CODE STATEMENT OF CHANGE FORM UCC-3 (REV. 1993)
This Statement of Change is presented to a filing officer pursuant to the Uniform Commercial Code:
1. DEBTOR (LAST NAME FIRST IF AN INDIVIDUAL) 1a. DATE OF BIRTH OR FEI#
AirTran Airways, Inc.
___________________________________________________________________________________________________________________________________
1b. XXXXXXX XXXXXXX 0x. XXXX, XXXXX 0x. XXX CODE
0000 Xxxxxxxxx Xxxxxxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
___________________________________________________________________________________________________________________________________
2. ADDITIONAL DEBTOR OR TRADE NAME (LAST NAME FIRST IF AN INDIVIDUAL) 2a. DATE OF BIRTH OR FEI#
Airways Corporation
___________________________________________________________________________________________________________________________________
2b. XXXXXXX XXXXXXX 0x. XXXX, XXXXX 0x. XXX CODE
0000 Xxxxxxxxx Xxxxxxxx Xxxxx Xxxxxxx, Xxxxxxx 00000
___________________________________________________________________________________________________________________________________
3. SECURED PARTY (LAST NAME FIRST IF AN INDIVIDUAL)
SunTrust Bank, Central Florida, National Association
___________________________________________________________________________________________________________________________________
3a. XXXXXXX XXXXXXX 0x. XXXX, XXXXX 0x. ZIP CODE
Xxxx Xxxxxx Xxx 0000 Xxxxxxx, Xxxxxxx 00000-0000
___________________________________________________________________________________________________________________________________
4. ADDITIONAL SECURED PARTY (LAST NAME FIRST IF AN INDIVIDUAL)
___________________________________________________________________________________________________________________________________
4a. XXXXXXX XXXXXXX 0x. XXXX, XXXXX 0x. ZIP CODE
___________________________________________________________________________________________________________________________________
5. THIS STATEMENT REFERS TO ORIGINAL FINANCING STATEMENT BEARING FILE NUMBER: 960000049779 filed on 3/12/96
6.
A. [ ] Continuation - The original Financing Statement between the Debtor and Secured Party bearing the file number shown
above is continued.
B. [ ] Release - The Secured Party releases the collateral described in Block 7 below from the Financing Statement
bearing the file number shown above. RELEASE DOES NOT TERMINATE LIEN AGAINST DEBTOR.
C. [ ] Full Assignment - All of the Secured Party's rights under the Financing Statement have been assigned to the assignee
whose name and address is shown in Block 7 below.
D. [ ] Partial Assignment - Some of Secured Party's rights under the Financing Statement have been assigned to the assignee whose
name and address is shown in Block 7. A description of the collateral subject to the assignment is
also shown in Block 7.
E. [ ] Amendment - The Financing Statement bearing the file number shown above is amended as set forth in Block 7. (See
instructions for signature requirements.)
F. [ ] Termination - The Secured Party no longer claims an interest under the Financing Statement bearing the file number
shown above.
G. [ ] Other - ______________________________________________________________________________________________________
___________________________________________________________________________________________________________________________________
7. DESCRIPTION OF COLLATERAL RELEASED OR ASSIGNED, ASSIGNEE NAME AND ADDRESS, OR AMENDMENT. USE ADDITIONAL SHEET(S) IF NECESSARY.
______________________________________________________________
THIS SPACE FOR USE OF FILING OFFICER
8. SIGNATURE(S) OF DEBTOR(S): (ONLY IF AMENDMENT - SEE INSTRUCTIONS)
____________________________________________________________________
____________________________________________________________________
9. SIGNATURE(S) OF SECURED PARTY(IES):
SunTrust Bank, Central Florida, National Association
____________________________________________________________________
By: /s/ W. Xxxx Xxxxxxx
____________________________________________________________________
Print Name: W. Xxxx Xxxxxxx Title: FVP
____________________________________________________________________
10. NUMBER OF ADDITIONAL SHEETS PRESENTED _______________
____________________________________________________________________
11. RETURN COPY TO:
Name Xxxxx X. Fides, Esq.
Address Xxxxxxxxx Traurig
000 X. Xxxxxx Xxx.
Address Suite 2050
City, State, Zip Xxxxxxx, XX 00000
___________________________________________________________________________________________________________________________________
ACKNOWLEDGEMENT COPY STANDARD FORM - FORM UCC-3 Approved by Secretary of State, State of Florida
61
INSTRUCTIONS
1. Please type this form using black typewriter ribbon.
2. If the space provided for any item is inadequate, please use
additional 8 1/2" x 11" sheets. Be sure to indicate the total number of
attached pages in Block 10. There is an additional fee for attached
pages.
3. Processing fees are set by the Florida Legislature, are non-refundable
and are subject to change. To verify processing fees contact the
Department of State, UCC Filing Section at (000) 000-0000. Make checks
payable to the Department of State.
4. Send the two-part form to the Department of State at the following
address:
1ST CLASS MAIL: OVERNIGHT COURIER SERVICE:
--------------- --------------------------
Florida Department of State Florida Department of State
UCC Filing Section UCC Filing Section
P.O. Box 5588 000 X. Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000 Xxxxxxxxxxx, XX 00000
5. All fees submitted for filing UCC documents are processing fees and are
non-refundable in accordance with s.15.091, F.S.
6. The acknowledgment copy will be stamped with the date, time and place
of filing and show the filing number assigned to the UCC-3 document.
It will be returned to the address indicated in Block 11. A self
addressed envelope may be sent for the return of the acknowledgment
copy.
BLOCKS 1-2: Enter the Debtor business or personal name (as it was
originally filed or subsequently amended), mailing address, city,
state, and zip code in Blocks 1-2. Include date of birth of FEI
number in the appropriate space. Disclosure of date of birth or
FEI number is optional for filing of this statement. It will be
used to correctly identify individuals with same or similar
names.
BLOCKS 3-4: Enter the Secured Party business or personal name (as it was
originally filed or subsequently amended), mailing address,
city, state, and zip code in Blocks 3-4. If Secured Party has
previously assigned its interest in the collateral to an assignee,
enter the assignee's name and address in Block 3.
BLOCK 5: Enter the filing information relating to the original UCC-1
Financing Statement in the space provided. Please be sure the
original file number and date are entered correctly.
BLOCK 6.: Xxxx the appropriate Block A through G to indicate the change to be
made to the original Financing Statement.
(A) CONTINUATION - A continuation statement may be filed by the Secured
Party or assignee of the Secured Party within six months prior to
expiration. The effectiveness of the original financing statement is
continued for 5 years from the original date filed and in 5 year
increments thereof. The Secured Party of record must sign at
Block 9.
(B) RELEASE - When a release of collateral is filed, whether full or
partial, a statement of the collateral being released must be shown in
Block 7. A full release of collateral does not terminate the filing.
The Secured Party of record must sign at Block 9.
(C) FULL ASSIGNMENT - Indicate in Block 7 the full name and address of the
party the assignment is made to. It is not necessary to list the
collateral to be assigned. The Secured Party of record must sign at
Block 9.
(D) PARTIAL ASSIGNMENT - Indicate in Block 7 the full name and address of
the party the partial assignment is made to A statement listing the
specific collateral being assigned must be entered in Block 7. The
Secured Party of record must sign at Block 9.
(E) AMENDMENT - List in Block 7 the statement of amendment. If the
amendment changes only the name of the Secured Party or the required
address of either the Secured Party or the Debtor, the UCC-3 need only
be signed by the Secured Party of record. All other amendments
must be signed by both the Debtor and Secured Party in Blocks 8 and 9.
(F) TERMINATION - A statement of termination ends the total security
interest claims on the UCC-1. The fee for a termination of a UCC-1
filed on or after October 1, 1992, was paid for when the UCC-1 was
filed. Current fees apply to termination statements filed on UCC-1's
which were filed prior to October 1, 1992. If Financing Statement has
been partially assigned, do not terminate lien until all Secured
Parties no longer claim an interest in any of the collateral. All
Secured Parties must sign in Block 9.
(G) Use this space for filing types not covered in A through F.
BLOCK 7: Use this space to indicate collateral being assigned or
released, for the name of the assignee, or any amendment
information. If additional sheets are needed, use 8 1/2" x 11"
sheets of paper. There is an additional charge for attached pages.
BLOCK 8: Debtor must sign if Block 6(E) was checked off unless amendment
changes only the name of the Secured Party or the address of either
the Secured Party or Debtor.
BLOCK 9: Secured Party of record must sign at Block 9.
BLOCK 10: Enter the number of additional pages attached to the UCC-3 form. If
Secured Party wants a copy of the attached pages returned with the
acknowledgment copy, a duplicate set of attachments must be
submitted and marked "copy."
BLOCK 11: Enter the name and complete address of the party to whom the filed
acknowledgement copy is to be returned.
NOTE: IF USING THIS FORM TO FILE WITH A FLORIDA CLERK'S OFFICE,
CHECK WITH THE APPROPRIATE OFFICE FOR FEE AND FILING INFORMATION.
