Exhibit 4.4
REIMBURSEMENT AGREEMENT
THIS REIMBURSEMENT AGREEMENT ("Agreement") is made as of September 12,
1997, by and among WESTERN PACIFIC AIRLINES, INC., a Delaware corporation (the
"Company"), and each of XXXX PETROLEUM CORPORATION, a Delaware corporation
("HPC"), and GFI COMPANY, a Nevada corporation ("GFI").
R E C I T A L S:
WHEREAS, Bank One Texas, N.A. (the "Bank") is prepared to extend a line of
credit to and loan the Company an amount equal to Ten Million Dollars
($10,000,000.00) pursuant to that certain Promissory Note (the "Note");
WHEREAS, as a condition precedent to the Bank's loan to the Company
pursuant to the Note, the Bank requires that HPC enter into an agreement (the
"Guaranty") whereby HPC unconditionally guarantees all of the Company's
obligations under the Note and an Indemnification Agreement under which HPC is
obligated to indemnify the Bank from certain matters relating to the Loan (the
"Indemnification Agreement");
WHEREAS, as a condition precedent to HPC's entering into the Guaranty and
the Indemnification Agreement, GFI has entered into an agreement to contribute
to HPC fifty percent (50%) of all liabilities and obligations that may become
payable under the Guaranty and the Indemnification Agreement (the "Contribution
Agreement"). Each of HPC and GFI are sometimes referred to herein as a
"Guarantor" and collectively as the "Guarantors"; and
WHEREAS, in order to induce the HPC to enter into the Guaranty and GFI to
enter into the Contribution Agreement, the Company has agreed to indemnify and
reimburse the Guarantors for all costs, expenses or other liabilities incurred
by the Guarantors as set forth herein.
NOW THEREFORE, in consideration of the mutual promises contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1. INCORPORATION OF RECITALS. The foregoing Recitals are hereby
incorporated by reference herein.
2. REIMBURSEMENT BY THE COMPANY. The Company hereby acknowledges and
agrees that it is obligated to reimburse and indemnify each of the Guarantors
for any and all costs, expenses or other liabilities incurred and paid by HPC
pursuant to the Guaranty or Indemnification Agreement or GFI pursuant to the
Contribution Agreement, as the case may be (the "Obligation"). The Company shall
promptly and upon demand reimburse and indemnify either Guarantor for any cost,
expense or other liability (including, without limitation, attorneys' fees)
incurred and paid by such Guarantor under the terms of the Guaranty, the
Indemnification Agreement or the Contribution Agreement, as the case may be,
plus interest thereon at a rate per annum equal to the lesser of (i) the "prime
rate" announced weekly in the WALL STREET JOURNAL plus 3.0%, or (ii) the maximum
lawful rate, from the date such Guarantor paid such costs, expense or other
liability until such amount is repaid to the Guarantor hereunder.
3. ACTIONS NOT RELEASES. The Company's obligation hereunder is absolute
and each of the Guarantor's rights under this Agreement shall not be released,
diminished, impaired or adversely affected by the occurrence of any one or more
of the following events: (i) the taking or accepting of any other security or
assurance for any or all of the Obligation; (ii) any release, surrender,
exchange, subordination or loss of any security or assurance at any time
existing in connection with any or all of the Obligation; (iii) the modification
of, amendment to or waiver of compliance with any terms of the Guaranty or the
Note; (iv) any renewal, extension or rearrangement of the payment of any or all
of the Guaranty or the Note; or (v) any neglect, delay, omission, failure or
refusal of either Guarantor to take or prosecute any action in connection with
this Agreement or any other agreement executed in connection herewith.
4. BINDING EFFECT. This Agreement shall be binding upon the Company and
its legal representatives, successors and assigns and shall inure to the benefit
of and be enforceable by each Guarantor and its respective successors,
transferees and assigns; PROVIDED, HOWEVER, that no party may assign any of its
obligations and/or rights hereunder without the prior written consent of the
other parties hereto.
5. NO WAIVER. No failure on the part of either Guarantor to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
6. NOTICE. All notices and demands provided for hereunder shall be in
writing, and shall be given by registered or certified mail, return receipt
requested, telex, telegram, telecopy, courier service of personal delivery, and
addressed to the relevant party or parties at the following address:
(i) if to the Company:
Western Pacific Airlines, Inc.
0000 Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Chief Executive Officer
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with a copy to:
X'Xxxxxx & Xxxxxx
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
(ii) if to HPC:
Xxxx Petroleum Corporation
0000 Xxx, 00xx Xxxxx
Xxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xx. Xxxxx Xxxxxx
with a copy to:
Xxxxxx & Xxxxxx
3700 Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000-0000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxx XxXxxxx, Esq.
(iii) if to GFI:
GFI Company
Xxxxxx Center
0000 Xxxxxx Xxxxxx Xxxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xx. Xxxxx X. Story
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with a copy to:
Xxxxxx & Xxxxx
000 Xxxx Xxxxxx
0000 Xxxxxxx Xxxx Xxxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxxxx Xxx, Esq.
or to such other address as a Guarantor or the Company, as the case may be, may
designate in writing to the other parties hereto, which notice shall be deemed
given when received.
7. EXECUTION IN COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute one and the same agreement.
8. GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER THE LAWS OF THE STATE OF DELAWARE, AND FOR ALL PURPOSES SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF SAID STATE, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
9. EXPENSES. The Company shall pay all costs and expenses incurred by
GFI and HPC in connection with the negotiation, execution and performance of
this Agreement, and all other documents executed in connection herewith,
including, without limitation, the Security Agreement, Lockbox Agreement and
Registration Rights Agreement, as well as all attorneys fees and expenses
incurred by the Bank in connection with the foregoing.
10. SEVERABILITY OF PROVISIONS. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction. All rights granted
to Guarantors hereunder are in addition to any other rights Guarantors may have
under contract, at law or in equity.
11. HEADINGS. The Section headings used or contained in this Agreement
are for convenience of reference only and shall not affect the construction of
this Agreement.
12. AMENDMENT. No amendment or modification of this Agreement shall be
binding upon the parties unless made in writing and signed by all of the
parties.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed by its duly authorized officer as of the date first written above.
WESTERN PACIFIC AIRLINES, INC.
By: /s/Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Vice President/CFO
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XXXX PETROLEUM CORPORATION
By: /s/Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: Executive Vice President
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GFI COMPANY
By: /s/Xxxxxx Xxxxxxx XX
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Name: Xxxxxx Xxxxxxx XX
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Title:
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