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EXHIBIT 10.19
LETTER OF CREDIT FACILITY AGREEMENT
THIS LETTER OF CREDIT FACILITY AGREEMENT, made and entered into as of
the 7th day of March, 1996 (this "Agreement"), by and between SUNTRUST BANK,
CENTRAL FLORIDA, NATIONAL ASSOCIATION, a national banking association at 000 X.
Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, hereinafter referred to as "Bank", and
AIRTRAN AIRWAYS, INC., A DELAWARE CORPORATION, AND AIRWAYS CORPORATION, A
DELAWARE CORPORATION, of 0000 Xxxxxxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000
hereinafter collectively referred to as "Applicant".
W I T N E S S E T H :
WHEREAS, the Applicant has requested the Bank to extend to it a letter
of credit facility under which the Bank will agree, from time to time to issue
on its behalf certain standby letters of credit in the maximum aggregate face
amount of $1,000,000.00; and
WHEREAS, the Bank has agreed to extend said letter of credit facility
and to issue such letters of credit from time to time on the terms and
conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, the parties hereto, intending to be legally bound,
agree as follows:
1. Definitions. As used herein:
"Agreement" shall mean this Letter of Credit Facility Agreement
originally executed by the parties hereto and all permitted supplements,
amendments, modifications and restatements thereof.
"Banking Day" shall mean that part of the day for dealings by and
between banks, excluding Saturday, Sunday or a day in which commercial banks in
Florida are authorized to close.
"Collateral" shall mean interest bearing cash or cash equivalent
collateral pledged to the Bank from time to time as security for the Letters of
Credit.
"Day" shall mean a calendar day, unless the context indicates
otherwise.
"Default Rate" shall mean twenty-five percent (25%) per annum, or the
maximum rate allowed, from time to time, by applicable law, whichever is less.
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"Event of Default" shall have the meaning ascribed to it in paragraph 8
of this Agreement.
"Facility" shall mean the letter of credit facility in the maximum
aggregate principal amount of $1,000,000.00 extended to the Applicant by the
Bank pursuant to this Agreement.
"Facility Documents" shall mean this Agreement, the Letter of Credit
Documents and all other documents, agreements, certificates, schedules, notes,
statements and opinions, however described, referenced herein or executed or
delivered pursuant hereto or in connection with or arising with the Facility or
the Letters of Credit or the transactions contemplated by this Agreement.
"Letter of Credit" and "Letters of Credit" shall mean any one or more
of the standby letters of credit issued for the account of the Applicant
pursuant to paragraph 2 hereof, whether issued by or through the actions of the
Bank, as the same may be transferred, renewed, modified, amended or restated
from time to time in the manner provided therein.
"Letter of Credit Documents" shall mean the Application and Agreement
for Standby Letter of Credit agreements executed and delivered by the Applicant
to the Bank for each standby Letter of Credit issued hereunder.
"Leasehold Mortgage and Security Agreement" shall mean that certain
Leasehold Mortgage and Security Agreement encumbering certain real and personal
property located in Orange County, Florida dated of even date herewith given by
the Applicant to the Bank to secure a Promissory Note executed by the Applicant
of even date herewith in the principal amount of $2,000,000.00.
"Obligations" shall mean, individually and collectively, all payment
and performance duties, obligations and liabilities of the Applicant to the
Bank, however and whenever incurred, acquired or evidenced, whether primary or
secondary, direct or indirect, absolute or contingent, sole or joint and
several, or due or to become due, including without limitation, all such duties,
obligations and liabilities of the Applicant to the Bank under and pursuant to
the Facility Documents and all renewals, modifications, amendments, extensions
or replacements of any thereof.
"Person" shall mean any individual, joint venturer, partnership, firm,
corporation, trust, unincorporated organization or other organization or entity,
or a governmental body or any department or agency thereof, and shall include
both the singular and the plural.
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"Security Agreement" shall mean that certain Security Agreement dated
of even date herewith by and between the Applicant and the Bank.
"Termination Date" shall mean the earlier to occur of (a) the
occurrence of an Event of Default, or (b) June 30, 1997, or such later date as
the Bank, in its sole and absolute discretion, may agree to in writing, or (c)
thirty (30) days after notice of termination is given by the Applicant to the
Bank, provided that (i) the Applicant shall provide Collateral in the amount of
one hundred percent (100%) of the stated amount of all outstanding Letters of
Credit, and (ii) the Applicant executes, or has executed, the Bank's standard
application and standard documentation for each outstanding Letter of Credit.
1. Amount and Terms of the Facility.
(a) The Facility. The Bank agrees from time to time, upon and subject
to the terms and conditions of this Agreement, upon its prior approval, to issue
on behalf of the Applicant, standby Letters of Credit up to the aggregate face
amount of $1,000,000.00. No standby Letter of Credit issued under the Facility
shall have a stated amount in excess of $1,000,000.00. At no time shall the
aggregate face amount of all Letters of Credit issued under the Facility exceed
$1,000,000.00. The Letters of Credit issued under the Facility shall be secured,
as provided in subparagraph 1(b) hereof.
(b) Collateral. For each standby Letter of Credit issued hereunder, the
Applicant shall provide Collateral acceptable to the Bank in the amount of one
hundred percent (100%) of the stated amount of each such Letter of Credit.
(c) Payment of Facility. The entire unpaid principal balance of the
Facility shall mature and be due and payable in full upon the earlier to occur
of (i) the Termination Date, or (ii) the date of any payment being made under
any Letter of Credit which has not been reimbursed by the Applicant pursuant to
the terms hereof and/or of the Letter of Credit Documents.
2. Letters of Credit.
(a) Issuance of Letters of Credit. Upon the terms and provisions and
subject to the conditions contained in this Agreement, the Bank shall issue or
cause the issuance of one or more standby Letters of Credit upon the request of
the Applicant; provided, however, the Bank's agreement to issue Letters of
Credit shall terminate on the Termination Date, and further provided, however,
that notwithstanding the amount of the Facility, the Bank shall not be required
to consider the issuance of any Letter of Credit if (i) the face amount of the
Letter of
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Credit to be issued plus the aggregate face amounts of all Letters of Credit
outstanding would exceed the amount of the Facility or (ii) the expiration date
thereof could occur after the Termination Date. The issuance of such Letters of
Credit is subject to compliance with the conditions precedent set forth in this
Agreement, to the prior approval of the Bank and to the Bank's standard
procedures for issuance of a Letter of Credit, including, but not limited to,
the submission of an application for any standby Letters of Credit on the Bank's
approved forms. The Letters of Credit will be in such form as is reasonably
acceptable to the Bank and the documentation therefor will include an
unconditional obligation of the Applicant to immediately pay the amount properly
drawn under any Letter of Credit, as set forth in subparagraph 2(c).
(b) Draws Under Letters of Credit. Each of the Letters of Credit may be
drawn upon by presentment to the Bank, at its office at 000 Xxxxx Xxxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx 00000 (or such other office as may be specified therein), of
the original Letter of Credit, together with such supporting documents and
certificates as may be required by the Letter of Credit. The Bank may honor any
draft, certificate or other document reasonably conforming in form and substance
to the requirements described in and/or forms annexed to the Letter of Credit,
and may afford the beneficiary notice of and an opportunity to correct
non-conforming items capable of cure, each in the sole and absolute discretion
of the Bank and without any notice to or consent from the Applicant.
(c) Reimbursement by Applicant. The Applicant hereby agrees as follows:
(i) to pay to the Bank on demand, prior to or immediately upon any payment being
made under any Letter of Credit pursuant to any drawing thereunder, an amount
equal to such amount to be paid under such Letter of Credit; and (b) to pay to
the Bank interest on any and all amounts required to be paid as provided in this
subparagraph 3(c) from and after the due date thereof until payment in full,
payable on demand at the Default Rate. If any payment under any Letter of Credit
with respect to any drawing thereunder shall be paid or reimbursed to the Bank
on or before the date such payment is made by the Bank, no interest shall be
payable on the reimbursed amount. If the Applicant shall fail to make any such
payment, the Bank may deduct such amount from any deposit balance, account,
item, certificate of deposit or money of the Applicant in the possession of the
Bank or any of its affiliates.
(d) Setoff. The Applicant each hereby grant to the Bank a lien on, and
a security interest in, the deposit balances, accounts, items, certificates of
deposit and monies of the Applicant in the possession of or on deposit with the
Bank or any of its affiliates to secure and as Collateral for the payment and
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performance of the Obligations. Upon default, the Bank may at any time and from
time to time, without demand or notice, appropriate and set-off against and
apply the same to the Obligations when and as due and payable.
(e) Increase in Costs. In addition to the payment of the amount of all
requested draws under all Letters of Credit and all interest, if any, as stated
above, if there shall be any increase in the direct or indirect cost to the Bank
of issuing, causing the issuance of or maintaining a Letter of Credit, or any
reduction in any amount received or to be received with respect to a Letter of
Credit by the Bank hereunder due to:
(i) The introduction of any change in any applicable law or the
interpretation or administration thereof, including without
limitation, the imposition, modification or application of (A)
any reserve, special deposit, assessment or similar
requirement respecting Letters of Credit issued by, assets
held by, or deposits in or for the account of, the Bank, (B)
any requirement to withhold or deduct from any amount payable
to the Bank hereunder, or payable directly or indirectly to
the Bank, any taxes, levies, imports, duties, fees,
deductions, withholdings or charges of a similar nature, or to
any interest thereon, or any penalties with respect thereto,
imposed, levied, collected, assessed, withheld or deducted by
any governmental authority, including subdivisions and taxing
authorities thereof, or (C) any other restriction or condition
effecting a Letter of Credit or this Agreement; or
(ii) The compliance of the Bank with any regulation, guideline or
request from any central bank or other authority (whether or
not having the force of law);
the Applicant from time to time, within 10 days upon demand by the Bank, shall
pay to the Bank additional amounts sufficient to indemnify the Bank against such
increased costs and reduced receipts. A certificate setting forth the basis for
the additional amounts in reasonable detail as to the amount and manner of
calculation of such increased costs and reduced receipts submitted to the
Applicant by the Bank shall be conclusive (absent manifest error) as to the
existence and the amount thereof. If the Bank has not received payment for such
amounts by the time it receives from the Applicant the next succeeding payment
for reimbursement of a requested draw under a Letter of Credit or any other
payment which may be due hereunder, whether intended by the Applicant to be
reimbursement of a draw
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or otherwise, the Bank may apply such payment first to the reduction of the
amounts of such costs and receipts.
(f) Termination of Facility. The Facility shall not otherwise be deemed
to have been terminated until each of the outstanding Letters of Credit have
been presented, have expired by their terms without presentment or have been
surrendered to the Bank for cancellation.
3. Letter of Credit Fees. With regard to the issuance of any such
Letters of Credit, the Applicant agrees to pay to the Bank for each standby
Letter of Credit issued by the Bank on behalf of the Applicant hereunder, a fee
equal to one hundred basis points (1.00%) per annum on the face amount of each
such standby Letter of Credit, payable quarterly in advance, based on a 360 day
year, for actual number of days elapsed, in immediately available funds,
beginning on the date of initial issuance of any standby Letter of Credit and on
the first day of each quarterly period thereafter; provided, however, that no
fee for any standby Letter of Credit issued hereunder shall be less than
$500.00.
4. Negative Covenants. So long as any Obligation is outstanding, the
Applicant will not without the prior written consent of Bank, which consent will
not be unreasonably withheld:
(a) Additional Indebtedness. Except as permitted in the Leasehold
Mortgage and Security Agreement and the Security Agreement, incur, create,
assume or permit or suffer to exist any additional indebtedness or liability for
borrowed money, any indebtedness evidenced by notes, bonds, debentures or
similar obligations or any conditional sales or title retention agreement or
capitalized lease; or
(b) Lien or Security Interest. Except as permitted in the Leasehold
Mortgage and Security Agreement and the Security Agreement, create, suffer or
permit any other lien or security interest against any of its assets now or
hereafter in existence.
5. Affirmative Covenants. The Applicant covenants, for so long as any
Obligation is outstanding and unpaid or unperformed, as follows:
(a) Maintenance of Corporate Existence; Compliance with Laws. Each
Applicant shall at all times preserve and maintain in full force and effect its
corporate existence, powers, rights, licenses, permits and franchises in the
jurisdiction of its incorporation; continue to conduct and operate its business
substantially as conducted and operated during the present and preceding fiscal
year of the Applicant; operate in substantial compliance with all applicable
laws, statutes, regulations, certificates of authority and orders in respect of
the conduct of
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its business; and qualify and remain qualified as a foreign corporation in each
jurisdiction in which qualification is necessary or appropriate in view of its
business and operations.
(b) Inspection. The Applicant will permit the Bank to visit any of the
properties and places of business of the Applicant and to discuss its affairs,
finances and accounts with its officers all at such reasonable times and as
often as may be reasonably be requested.
(c) Leasehold Mortgage and Security Agreement. The Applicant will
comply with all of the covenants of the Leasehold Mortgage and Security
Agreement, which covenants are incorporated herein and made a part of this
Agreement provided, however, in the event said Leasehold Mortgage and Security
Agreement is terminated in accordance with the terms thereof or for any reason,
the covenants in said Leasehold Mortgage and Security Agreement as provided
herein shall continue to be the covenants incorporated herein by reference and
Applicant's obligation to comply with said covenants shall continue in full
force and effect under this Agreement.
(d) Banking Relationship. The Applicant shall maintain their primary
bank accounts and banking relationships with the Bank.
6. Representations. Applicant warrants that:
(a) Organization, Corporate Powers, etc. Each Applicant (i) is a
corporation duly organized, validly existing and in good standing under the laws
of the state of its incorporation, (ii) has all requisite power and authority,
corporate and otherwise, to own their respective properties and assets and to
carry on their respective business as now conducted and proposed to be
conducted, (iii) are duly qualified to do business and are in good standing in
every jurisdiction in which the character of their properties or assets owned or
the nature of its activities conducted makes such qualification necessary
including the State of Florida, and (iv) have the power and authority to execute
and deliver, and to perform its obligations under this Agreement and the other
Facility Documents.
(b) Authorization of Facility, etc. The execution, delivery and
performance of the Facility Documents by the Applicant (a) have been duly
authorized by all requisite corporate action and (b) will not (i) violate (A)
any provision of law, any governmental rule or regulation, any order of any
court or other agency of government or the articles of incorporation or bylaws
of the Applicant or (B) any provision of any indenture, agreement or other
instrument to which the
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Applicant is a party or by which the Applicant or any of their properties or
assets are bound, (ii) be in conflict with, result in a breach of or constitute
(with due notice or lapse of time or both) a default under any such indenture,
agreement or other instrument, or (iii) result in the creation or imposition of
any lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Applicant other than as permitted by the terms
hereof.
(c) Conflicting Agreements and Other Matters. The Applicant is not a
party to any contract or agreement or subject to any corporate restriction which
materially and adversely affects their business, property or assets, or
financial condition. Neither the execution nor delivery of this Agreement or the
other Facility Documents, nor fulfillment of nor compliance with the terms and
provisions hereof or the other Facility Documents will conflict with, or result
in a breach of the terms, conditions or provisions of, or constitute a default
under, or result in any violation of, or result in the creation of any lien upon
any of the properties or assets of the Applicant, any award of any arbitrator or
any agreement (including any agreement with stockholders), instrument, order,
judgment, decree, statute, law, rule or regulation to which the Applicant is
subject. The Applicant is not a party to, or otherwise subject to any provision
contained in, any instrument evidencing indebtedness of the Applicant, any
agreement relating thereto or any other contract or agreement (including its
partnership agreement) which restricts or otherwise limits the incurring of the
debt to be evidenced by this Agreement and the other Facility Documents.
(d) Financial Statements. The Applicant has furnished, or caused to be
furnished, the Bank with its unaudited consolidated financial statements through
the period ended December 31, 1995, including its audited consolidated financial
statements for the fiscal year ended March 31, 1995. Such financial statements
(including any related schedules and/or notes) are true and fairly presented in
all material respects (subject, as to interim statements, to changes resulting
from audits and year-end adjustments) and have been prepared in accordance with
generally accepted practices and show all liabilities, direct and contingent, of
the Applicant required to be shown in accordance with such practices. There has
been no material adverse change in the business, condition or operations
(financial or otherwise) of the Applicant taken as a whole since December 31,
1995.
(e) Changes in Financial Conditions; Adverse Developments. From the
date of the financial statements referenced in subparagraph 7(d) hereof, to the
date of this Agreement, there has been no change in the properties, assets,
liabilities, financial condition, business, operations, affairs
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or prospects of the Applicant from that set forth or reflected in the fiscal
year-end financial statements referred to in subparagraph 7(d) hereof, other
than changes in the ordinary course of business, including acquisitions, none of
which have been, either in any case or in the aggregate, materially adverse.
(f) Tax Returns and Payments. All federal, state and local tax returns
and reports of the Applicant required to be filed have been filed, and all
taxes, assessments, fees and other governmental charges upon the Applicant, or
upon any of its properties, assets, incomes or franchises, which are due and
payable in accordance with such returns and reports, have been paid, other than
those presently (a) payable without penalty or interest, or (b) contested in
good faith and by appropriate and lawful proceedings prosecuted diligently. The
aggregate amount of the taxes, assessments, charges and levies so contested is
not material to the condition (financial or otherwise) and operations of the
Applicant. The charges, accruals, and reserves on the books of the Applicant in
respect of federal, state and local taxes for all fiscal periods to date are
adequate and the Applicant knows of no other liabilities with regard to unpaid
assessments for additional federal, state or local taxes for any such fiscal
period or of any basis therefor. The Applicant has and will establish all
reserves which it reasonably believes to be necessary and make all payments
required of them to be set aside or made in regard to all F.I.C.A., withholding,
sales or excise, and all other similar federal, state and local taxes.
(g) Agreements.
(i) The Applicant is not a party to any agreement, indenture, lease
or instrument or subject to any partnership restriction or any
judgment, order, writ, injunction, decree, rule or regulation
materially and adversely affecting its business, properties,
assets, operations or condition (financial or otherwise). There are
no material unrealized losses with respect to any such agreement,
indenture, lease or instrument.
(ii) The Applicant is not in default in the performance, observance
or fulfillment of any of the obligations, covenants or conditions
contained in any agreement or instrument to which it is a party
which would have a material impact on its financial condition or
ability to perform its obligations hereunder.
(h) Litigation, Etc. There are no actions, proceedings or
investigations, however described or denominated, pending or, to the knowledge
of the Applicant, threatened, against the Applicant, or affecting the Applicant
(or any basis therefor known to the Applicant) which, either in any case or in
the aggregate, might result in any material adverse change in the
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financial condition, business, prospects, affairs or operations of the Applicant
or in any of its properties or assets, or in any material impairment of the
right or ability of the Applicant to carry on its operations as now conducted or
proposed to be conducted, or in any material liability on the part of the
Applicant, or which questions the validity of this Agreement or any of the other
Facility Documents or of any action taken or to be taken in connection with the
transactions contemplated hereby or thereby.
(i) Governmental Consent. Neither the nature of the Applicant nor of
its business or properties nor any relationship between the Applicant and any
other Person, nor any circumstance in connection with the Facility or the
issuance and delivery of the Facility Documents is such as to require any
consent, approval or other action by or any notice to or filing with any court
or administrative or governmental body in connection with the execution and
delivery of this Agreement, or the other Facility Documents or the fulfillment
of or compliance with the terms and provisions hereof or of the other Facility
Documents.
(j) Consents and Approvals. No authorization, license, consent,
approval, or undertaking is required under any applicable law in connection with
the execution, delivery and performance by the Applicant of this Agreement or
any of the other Facility Documents.
7. Events of Default. The following each and all are Events of
Default hereunder:
(a) Monetary Default. If the Applicant shall default in any payment of
any Obligations, including any amount due to the Bank hereunder or under any of
the Letter of Credit Documents, when and as the same shall become due and
payable, whether on demand, at maturity, by acceleration or otherwise; or
(b) Non-Monetary Default. If the Applicant shall default in the
performance of or compliance with any term or covenant contained in one or more
of the Facility Documents other than a term or covenant a default in the
performance of which or non-compliance with which is elsewhere specifically
dealt with under this paragraph 7.; or
(c) Third Party Default. If the Applicant shall be declared in default
by a third party in the performance of any agreement with any person other than
the Bank with respect to any material indebtedness of the Applicant if the
effect of such default is to accelerate the maturity of such indebtedness or at
maturity (giving effect to any applicable grace periods) such indebtedness shall
not be paid as and when due and payable unless
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such default is being contested in good faith by the Applicant; or
(d) False Representation. If any representation or warranty made in
writing by or on behalf of the Applicant herein, or in any other Facility
Document shall prove to have been false or incorrect in any material respect on
the date as of which made or reaffirmed; or
(e) Bankruptcy or Insolvency. If the Applicant shall admit in writing
its inability, or be generally unable, to pay its debts as they become due or
shall make an assignment for the benefit of creditors, file a petition in
bankruptcy, petition or apply to any tribunal for the appointment of a
custodian, receiver or trustee for the Applicant or a substantial part of its
assets, or shall commence any proceeding under any bankruptcy, reorganization,
arrangement, readjustment of debt, dissolution or liquidation law or statute of
any jurisdiction, whether now or hereafter in effect, or if there shall have
been filed any such petition or application, or any such proceeding shall have
been commenced against the Applicant, in which an order for relief is entered or
which remains undismissed for a period of sixty (60) Days or more, or the
Applicant by any act or omission shall indicate its consent to, approval of or
acquiescence in any such petition, application, or proceeding or order for
relief or the appointment of a custodian, receiver or any trustee for the
Applicant or any substantial part of any of its properties, or shall suffer any
such custodianship, receivership or trusteeship to continue undischarged for a
period of sixty (60) Days or more; or
(f) Dissolution. If any order, judgment, or decree is entered in any
proceedings against the Applicant decreeing the dissolution or liquidation of
the Applicant and such order, judgment, or decree remains unstayed and in effect
for more than sixty (60) Days; or
(g) Default under Leasehold Mortgage and Security Agreement. If the
Applicant shall default in the performance of or compliance with any term or
covenant contained in the Leasehold Mortgage and Security Agreement; or
(h) Fraudulent Conveyance. If the Applicant shall have concealed,
removed, or permitted to be concealed or removed, any part of its properties,
with intent to hinder, delay or defraud its creditors or any of them, or made or
suffered a transfer of any of its properties which may be fraudulent under any
bankruptcy, fraudulent conveyance or similar law, or shall have made any
transfer of its properties to or for the benefit of a creditor at a time when
other creditors similarly situated have not been paid, or shall have suffered or
permitted, while
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insolvent, any creditor to obtain a lien upon any of its properties through
legal proceedings or distraint which is not vacated within thirty (30) Days from
the date thereof; or
(i) Final Judgment. If a final judgment for the payment of money shall
be rendered against the Applicant, and the same shall remain undischarged for a
period of thirty (30) consecutive Days during which execution shall not be
effectively stayed.
8. Rights Upon Default. Upon the occurrence and its continuing of any
Event of Default, the Bank shall have and may exercise any or all of the rights
set forth herein provided, however, the Bank shall be under no duty or
obligation to do so:
(a) Acceleration. To declare the Obligations to be forthwith due and
payable, whereupon all such Obligations shall become forthwith due and payable,
both as to principal and interest, if applicable, without presentment, demand,
protest or any other notice or grace period of any kind, all of which are hereby
expressly waived, anything contained herein or in the documents evidencing such
Obligations to the contrary notwithstanding and, upon such acceleration, the
unpaid principal balance and accrued interest, if any, upon the Obligations
shall from and after such date of acceleration bear interest at the Default
Rate; provided, however, that the foregoing shall in no way abrogate or limit
the Bank's right to accelerate and declare the Facility immediately due and
payable upon demand at any time.
(b) Setoff. To exercise its right of setoff as set forth in
subparagraph 2(d) hereof.
(c) Other Rights. To exercise such other rights as may be permitted
under any of the Facility Documents.
9. Miscellaneous.
(a) No Waiver, Cumulative Remedies. No failure or delay on the part of
the Bank in exercising any right, power or remedy hereunder, or under the other
Facility Documents shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy
hereunder or thereunder. The remedies herein and therein provided are cumulative
and not exclusive of any remedies provided by law or in equity.
(b) Amendments, Etc. No amendment, modification, termination or waiver
of any provision of this Agreement or the other Facility Documents, nor consent
to any departure by the Applicant therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Bank, and then such
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waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given.
(c) Addresses for Notices, Etc. All notices, requests, demands and
other communications provided for hereunder shall be in writing (including
telex, telecopy or telegraphic communications) and shall be deemed to have been
duly and sufficiently given by the next Banking Day in the place to which sent
if sent by telex, telecopy or telegraphic communications, or after three (3)
Banking Days after being mailed (postage prepaid) to the Applicant or the Bank
at the address given in the preamble to this Agreement, or, as to each party, at
such other address as shall be designated by such party in a written notice to
the other party complying as to the delivery with the terms of this
subparagraph.
(d) Applicable Law. This Agreement, and each of the Facility Documents
and transactions contemplated herein (unless specifically stipulated to the
contrary in such document) shall be governed by and interpreted in accordance
with the laws of the State of Florida.
(e) Survival of Representations and Warranties. All representations,
warranties, covenants and agreements contained herein or made in writing by the
Applicant in connection herewith shall survive the execution and delivery of
this Agreement and the other Facility Documents and be true and correct during
the term of the Facility.
(f) Time of the Essence. Time is of the essence of this Agreement and
the other Facility Documents.
(g) Headings. The headings in this Agreement are intended to be for
convenience of reference only, and shall not define or limit the scope, extent
or intent or otherwise affect the meaning of any portion hereof.
(h) Severability. In case any one or more of the provisions contained
in this Agreement or the other Facility Documents shall for any reason be held
to be invalid, illegal or unenforceable in any respect, the same shall not
affect any other provision of this Agreement or the other Facility Documents,
but this Agreement and the other Facility Documents shall be construed as if
such invalid or illegal or unenforceable provision had never been contained
therein. Provided, however, in the event said matter would adversely affect the
rights of the Bank under any or all of the Facility Documents, the same shall be
an Event of Default.
(i) Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall
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constitute one and the same instrument and any of the parties hereto may execute
this Agreement by signing any such counterpart.
(j) Conflict. In the event any conflict or inconsistency arises between
the terms of this Agreement and the terms of any other Facility Document, the
terms of this Agreement shall govern in all instances of such conflict or
inconsistency, EXCEPT WITH RESPECT TO ANY LETTER OF CREDIT DOCUMENT, WHICH SHALL
GOVERN AS TO THE TERMS OF THE LETTER OF CREDIT TO WHICH IT APPLIES.
(k) Term. The term of this Agreement shall be for such period of time
until the Obligations have been repaid in full and/or performed, all Letters of
Credit have been terminated and all of the other obligations hereunder have been
paid to the Bank in full.
(l) Expenses. The Applicant agrees, whether or not the transactions
hereby contemplated shall be consummated, to pay, and save the Bank harmless
against liability for the payment of, all reasonable out-of-pocket expenses
arising in connection with this transaction, all taxes, together in each case
with interest and penalties, if any, which may be payable in respect of the
execution, delivery and performance of this Agreement or the execution,
delivery, and performance of the other Facility Documents issued under or
pursuant to this Agreement (excepting only any tax on or measured by net income
of the Bank determined substantially in the same manner, other than the rate of
tax, as net income is presently determined under the IRS Code), the reasonable
legal fees and expenses (whether incurred at trial, in any bankruptcy or
appellate proceeding or otherwise) of counsel to the Bank in connection with
negotiation, preparation and enforcement of this Agreement or any of the other
Facility Documents.
(m) Successors. All covenants and agreements in this Agreement
contained by or on behalf of either of the parties hereto shall bind and inure
to the benefit of the respective successors of the parties hereto whether so
expressed or not provided, however, this clause shall not by itself authorize
any delegation of duties by the Applicant.
(n) No Third Party Beneficiaries. The parties intend that this
Agreement is solely for their benefit and no person not a party hereto shall
have any rights or privileges under this Agreement whatsoever either as the
third party beneficiary or otherwise.
(o) WAIVER OF JURY TRIAL. BANK, THE APPLICANT HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY
IN RESPECT TO ANY LITIGATION BASED
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ON, ARISING OUT OF, UNDER OR IN CONJUNCTION WITH THIS AGREEMENT AND ANY FACILITY
DOCUMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION HEREWITH OR THEREWITH, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN)
OR ACTIONS OF EITHER PARTY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE BANK
MAKING THE FACILITY EVIDENCED HEREBY AVAILABLE TO THE APPLICANT.
(p) Entire Agreement. Except as otherwise expressly provided, this
Agreement and the other Facility Documents embody the entire agreement and
understanding between the parties hereto and supersede all prior agreements and
understandings relating to the subject matter hereof.
IN WITNESS WHEREOF, the Applicant and the Bank have caused these
presents to be executed by their proper officers under due corporate authority,
and their corporate seals to be affixed, this the day and year first above
written.
"APPLICANT":
Signed, sealed and delivered
in the presence of: AIRTRAN AIRWAYS, INC.
/s/ Xxxxx X. Fides, II By: /s/ Xxxx X. Xxxx
----------------------- --------------------
(Signature of Witness) Xxxx X. Xxxx
President and Chief Executive
Xxxxx X. Fides, II Officer
----------------------
(Print Name of Witness)
(CORPORATE SEAL)
/s/ Xxxxx X. Xxxxx
----------------------
(Signature of Witness)
Xxxxx X. Xxxxx
---------------------
Print Name of Witness)
As to "Applicant"
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AIRWAYS CORPORATION
/s/ Xxxxx X. Fides, II By: /s/ Xxxx X. Xxxx
---------------------- --------------------
(Signature of Witness) Xxxx X. Xxxx
President
Xxxxx X. Fides, II
-----------------------
(Print Name of Witness)
(CORPORATE SEAL)
/s/ Xxxxx X. Xxxxx
-----------------------
(Signature of Witness)
Xxxxx X. Xxxxx
-----------------------
(Print Name of Witness)
As to Applicant
"BANK":
SUNTRUST BANK, CENTRAL FLORIDA,
NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxx, III
----------------------------
Xxxxxxx X. Xxxx, III
First Vice President
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