LOAN AGREEMENT
Exhibit 10.21
Wachovia Bank, National Association
Xxxxxxxxxxxx, Xxxxxxx 00000
(Hereinafter referred to as the “Bank”)
Xxxxxxxxxxxx, Xxxxxxx 00000
(Hereinafter referred to as the “Bank”)
Gulfstream International Airlines, Inc.
0000 Xxxxxxx Xxxx, 0xx Xxxxx
Xxxxx, Xxxxxxx 00000
(Hereinafter referred to as “Borrower”)
0000 Xxxxxxx Xxxx, 0xx Xxxxx
Xxxxx, Xxxxxxx 00000
(Hereinafter referred to as “Borrower”)
This Loan Agreement (“Agreement”) is entered into August 15, 2006, by and between Bank and
Borrower.
This Agreement applies to the loan or loans (individually and collectively, the “Loan”) evidenced
by one or more promissory notes of even date herewith or other notes subject hereto, as modified
from time to time (whether one or more, the “Note”) and all Loan Documents. The terms “Loan
Documents” and “Obligations,” as used in this Agreement, are defined in the Note.
Relying upon the covenants, agreements, representations and warranties contained in this Agreement,
Bank is willing to extend credit to Borrower upon the terms and subject to the conditions set forth
herein, and Bank and Borrower agree as follows:
REPRESENTATIONS. Borrower represents that from the date of this Agreement and until final payment
in full of the Obligations: Accurate Information. All information now and hereafter furnished to
Bank is and will be true, correct and complete in all material respects. Any such information
relating to Borrower’s financial condition will accurately reflect Borrower’s financial condition
as of the date(s) thereof, (including all contingent liabilities of every type), and Borrower
further represents that its financial condition has not changed materially or adversely since the
date(s) of such documents. Authorization; Non-Contravention. The execution, delivery and
performance by Borrower and any guarantor, as applicable, of this Agreement and other Loan
Documents to which it is a party are within its power, have been duly authorized as may be required
and, if necessary, by making appropriate filings with any governmental agency or unit and are the
legal, binding, valid and enforceable obligations of Borrower and any guarantors; and do not (i)
contravene, or constitute (with or without the giving of notice or lapse of time or both) a
violation of any provision of applicable law, a violation of the organizational documents of
Borrower or any guarantor, or a default under any agreement, judgment, injunction, order, decree or
other instrument binding upon or affecting Borrower or any guarantor, (ii) result in the creation
or imposition of any lien (other than the lien(s) created by the Loan Documents) on any of
Borrower’s or any guarantor’s assets, or (iii) give cause for the acceleration of any obligations
of Borrower or any guarantor to any other creditor. Asset Ownership. Borrower has good and
marketable title to all of the properties and assets reflected on the balance sheets and financial
statements supplied Bank by Borrower, and all such properties and assets are free and clear of
mortgages, security deeds, pledges, liens, charges, and all other encumbrances, except as otherwise
disclosed to Bank by Borrower in writing and
approved by Bank (“Permitted Liens”). To Borrower’s knowledge, no default has occurred under any
Permitted Liens and no claims or interests adverse to Borrower’s present rights in its properties
and assets have arisen. Discharge of Liens and Taxes. Borrower has duly filed, paid and/or
discharged all taxes or other claims that may become a lien on any of its property or assets,
except to the extent that such items are being appropriately contested in good faith and an
adequate reserve for the payment thereof is being maintained. Sufficiency of Capital. Borrower is
not, and after consummation of this Agreement and after giving effect to all indebtedness incurred
and liens created by Borrower in connection with the Note and any other Loan Documents, will not
be, insolvent within the meaning of 11 U.S.C. § 101, as in effect from time to time. Compliance
with Laws. Borrower and any subsidiary and affiliate of Borrower and any guarantor are in
compliance in all material respects with all federal, state and local laws, rules and regulations
applicable to its properties, operations, business, and finances, including, without limitation,
any federal or state laws relating to liquor (including 18 U.S.C. § 3617, et seq.) or narcotics
(including 21 U.S.C. § 801, et seq.) and/or any commercial crimes; all applicable federal, state
and local laws and regulations intended to protect the environment; and the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), if applicable. None of Borrower, or any
subsidiary or affiliate of Borrower or any guarantor is a Sanctioned Person or has any of its
assets in a Sanctioned Country or does business in or with, or derives any of its operating income
from investments in or transactions with, Sanctioned Persons or Sanctioned Countries in violation
of economic sanctions administered by OFAC. The proceeds from the Loan will not be used to fund any
operations in, finance any investments or activities in, or make any payments to, a Sanctioned
Person or a Sanctioned Country. “OFAC” means the U.S. Department of the Treasury’s Office of
Foreign Assets Control. “Sanctioned Country” means a country subject to a sanctions program
identified on the list maintained by OFAC and available at xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxxxxxxxx/, or as otherwise published from time to
time. “Sanctioned Person” means (i) a person named on the list of Specially Designated Nationals or
Blocked Persons maintained by OFAC available at xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxx/,
or as otherwise published from time to time, or (ii) (A) an agency of the government of a
Sanctioned Country, (B) an organization controlled by a Sanctioned Country, or (C) a person
resident in a Sanctioned Country to the extent subject to a sanctions program administered by OFAC.
Organization and Authority. Each corporation, partnership or limited liability company Borrower
and/or guarantor, as applicable, is duly created, validly existing and in good standing under the
laws of the state of its organization, and has all powers, governmental licenses, authorizations,
consents and approvals required to operate its business as now conducted. Each corporation,
partnership or limited liability company Borrower and/or guarantor, as applicable, is duly
qualified, licensed and in good standing in each jurisdiction where qualification or licensing is
required by the nature of its business or the character and location of its property, business or
customers, and in which the failure to so qualify or be licensed, as the case may be, in the
aggregate, could have a material adverse effect on the business, financial position, results of
operations, properties or prospects of Borrower or any such guarantor. No Litigation. There are no
pending or threatened suits, claims or demands against Borrower or any guarantor that have not been
disclosed to Bank by Borrower in writing, and approved by Bank. Indemnity. Borrower will indemnify
Bank and its affiliates from and against any losses, liabilities, claims, damages, penalties or
fines imposed upon, asserted or assessed against or incurred by Bank arising out of the inaccuracy
or breach of any of the representations contained in this Agreement or any other Loan Documents.
AFFIRMATIVE COVENANTS. Borrower agrees that from the date hereof and until final payment in full of
the Obligations, unless Bank shall otherwise consent in writing, Borrower will: Access to Books and
Records. Allow Bank, or its agents, during normal business hours, access to the books, records and
such other documents of Borrower as Bank shall reasonably require, and allow Bank, at Borrower’s
expense, to inspect, audit and examine the same and to make extracts therefrom and to make copies
thereof. Business Continuity. Conduct its business in substantially the same manner and locations
as such business is now and has previously been conducted. Certificate of Full Compliance From
Accountant Deliver to Bank, with the financial statements required herein, a certification by
Borrower’s independent certified public accountant that Borrower is in full compliance with the
Loan Documents. Compliance with Other Agreements. Comply with all terms and conditions contained in
this Agreement, and any other Loan Documents, and swap agreements; if applicable, as defined in the
11 U.S.C. § 101, as in effect from time to time. Estoppel Certificate. Furnish, within 15 days
after request by Bank, a written statement duly acknowledged of the amount due under the Loan and
whether offsets or defenses exist against the Obligations. Insurance. Maintain adequate insurance
coverage with respect to its properties and business against loss or damage of the kinds and in the
amounts customarily insured against by companies of established reputation engaged in the same or
similar businesses including, without limitation, commercial general liability insurance, workers
compensation insurance, and business interruption insurance; all acquired in such amounts and from
such companies as Bank may reasonably require. Maintain Properties. Maintain, preserve and keep its
property in good repair, working order and condition, making all replacements, additions and
improvements thereto necessary for the proper conduct of its business, unless prohibited by the
Loan Documents. Notice of Default and Other Notices. (a) Notice of Default. Furnish to Bank
immediately upon becoming aware of the existence of any condition or event which constitutes a
Default (as defined in the Loan Documents) or any event which, upon the giving of notice or lapse
of time or both, may become a Default, written notice specifying the nature and period of existence
thereof and the action which Borrower is taking or proposes to take with respect thereto. (b) Other
Notices. Promptly notify Bank in writing of (i) any material adverse change in its financial
condition or its business; (ii) any default under any material agreement, contract or other
instrument to which it is a party or by which any or its properties are bound, or any acceleration
of the maturity of any indebtedness owing by Borrower; (iii) any material adverse claim against or
affecting Borrower or any part of its properties; (iv) the commencement of, and any material
determination in, any litigation with any third party or any proceeding before any governmental
agency or unit affecting Borrower; and (v) at least 30 days prior thereto, any change in Borrower’s
name or address as shown above, and/or any change in Borrower’s structure. Other Financial
Information. Deliver promptly such other information regarding the operation, business affairs, and
financial condition of Borrower which Bank may reasonably request. Payment of Debts. Pay and
discharge when due, and before subject to penalty or further charge, and otherwise satisfy before
maturity or delinquency, all obligations, debts, taxes, and liabilities of whatever nature or
amount, except those which Borrower in good faith disputes. Reports and Proxies. Deliver to Bank,
promptly, a copy of all financial statements, reports, notices, and proxy statements, sent by
Borrower to stockholders, and all regular or periodic reports required to be filed by Borrower with
any governmental agency or authority.
NEGATIVE COVENANTS. Borrower agrees that from the date hereof and until final payment in full of
the Obligations, unless Bank shall otherwise consent in writing, Borrower will not:
Change of Control. Make or suffer a change of ownership that effectively changes control of
Borrower from current ownership. Default on Other Contracts or Obligations. Default on any material
contract with or obligation when due to a third party or default in the performance of any
obligation to a third party incurred for money borrowed. Government Intervention. Permit the
assertion or making of any seizure, vesting or intervention by or under authority of any
governmental entity, as a result of which the management of Borrower or any guarantor is displaced
of its authority in the conduct of its respective business or such business is curtailed or
materially impaired. Judgment Entered. Permit the entry of any monetary judgment or the assessment
against, the filing of any tax lien against, or the issuance of any writ of garnishment or
attachment against any property of or debts due. Retire or Repurchase Capital Stock. Retire or
otherwise acquire any of its capital stock.
ANNUAL FINANCIAL STATEMENTS. Borrower shall deliver to Bank, within 120 days after the close of
each fiscal year, audited financial statements reflecting its operations during such fiscal year,
including, without limitation, a balance sheet, profit and loss statement and statement of cash
flows, with supporting schedules and in reasonable detail, prepared in conformity with generally
accepted accounting principles, applied on a basis consistent with that of the preceding
year. If audited statements are required, all such statements shall be examined by an independent
certified public accountant acceptable to Bank. The opinion of such independent certified public
accountant shall not be acceptable to Bank if qualified due to any limitations in scope imposed by
Borrower or any other person or entity. Any other qualification of the opinion by the accountant
shall render the acceptability of the financial statements subject to Bank’s approval.
TAX RETURNS. Borrower shall deliver to Bank, within 30 days of filing, complete copies of federal
and state tax returns, as applicable, together with all schedules thereto, each of which shall be
signed and certified by Borrower to be true and complete copies of such returns. In the event an
extension is filed, Borrower shall deliver a copy of the extension within 30 days of filing.
FINANCIAL COVENANTS. Borrower agrees to the following provisions from the date hereof until final
payment in full of the Obligations, unless Bank shall otherwise consent in writing, using the
financial information for Borrower, its subsidiaries, affiliates and its holding or parent company,
as applicable: Funded Debt to EBITDA Ratio. Borrower shall, at all times, maintain a Funded Debt to
EBITDA Ratio of not more than 3.00 to 1.00. “Funded Debt to EBITDA Ratio” shall mean the sum of all
Funded Debt divided by the sum of earnings before interest, taxes, depreciation and amortization.
“Funded Debt” shall mean, as applied to any person or entity, the sum of all indebtedness for
borrowed money, (including, without limitation, capital lease and synthetic lease obligations,
subordinated debt (including debt subordinated to the Bank), and unreimbursed drawings under
letters of credit), or any other monetary obligation evidenced by a note, bond, debenture or other
agreement or similar instrument of that person or entity. Deposit Relationship. Borrower shall
maintain its primary depository account with Bank.
CONDITIONS PRECEDENT. The obligations of Bank to make the loan and any advances pursuant to this
Agreement are subject to the following conditions precedent: Additional Documents. Receipt by Bank
of such additional supporting documents as Bank or its counsel may reasonably request.
IN WITNESS WHEREOF, Borrower and Bank, on the day and year first written above, have caused this
Agreement to be executed under seal.
| Gulfstream International Airlines, Inc. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx, Senior Vice President of | ||||
| Legal Affairs and Corporate Secretary | ||||
| Wachovia Bank, National Association |
||||
| By: | /s/ Xxx Xxxxxxxxx | |||
| Xxx Xxxxxxxxx, Vice President | ||||
UNCONDITIONAL GUARANTY
August 15, 2006
Gulfstream International Airlines, Inc.
0000 Xxxxxxx Xxxx, 0xx Xxxxx
Xxxxx, Xxxxxxx 00000
(Hereinafter referred to as “Borrower”)
0000 Xxxxxxx Xxxx, 0xx Xxxxx
Xxxxx, Xxxxxxx 00000
(Hereinafter referred to as “Borrower”)
G-Air Holdings Corp.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
(Hereinafter referred to as “Guarantor”)
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
(Hereinafter referred to as “Guarantor”)
Wachovia Bank, National Association
Xxxxxxxxxxxx, Xxxxxxx 00000
(Hereinafter referred to as “Bank”)
Xxxxxxxxxxxx, Xxxxxxx 00000
(Hereinafter referred to as “Bank”)
To induce Bank to make, extend or renew loans, advances, credit, or other financial accommodations
to or for the benefit of Borrower, which are and will be to the direct interest and advantage of
the Guarantor, and in consideration of loans, advances, credit, or other financial accommodations
made, extended or renewed to or for the benefit of Borrower, which are and will be to the direct
interest and advantage of the Guarantor, Guarantor hereby absolutely, irrevocably and
unconditionally guarantees to Bank and its successors, assigns and affiliates the timely payment
and performance of all liabilities and obligations of Borrower to Bank and its affiliates,
including, but not limited to, all obligations under any notes, loan agreements, security
agreements, letters of credit, instruments, accounts receivable, contracts, drafts, leases, chattel
paper, indemnities, acceptances, repurchase agreements, overdrafts, and the Loan Documents, as
defined below, and all obligations of Borrower to Bank or any of its affiliates under any swap
agreement (as defined in 11 U.S.C. § 101, as in effect from time to time), however and whenever
incurred or evidenced, whether primary, secondary, direct, indirect, absolute, contingent, due or
to become due, now existing or hereafter contracted or acquired, and all modifications, extensions
and renewals thereof, (collectively, the “Guaranteed Obligations”).
Guarantor further covenants and agrees:
GUARANTOR’S LIABILITY. This Guaranty is a continuing and unconditional guaranty of payment and
performance and not of collection. The parties to this Guaranty are jointly and severally obligated
hereunder. This Guaranty does not impose any obligation on Bank to extend or continue to extend
credit or otherwise deal with Borrower at any subsequent time. This Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time any payment of the Guaranteed
Obligations is rescinded, avoided or for any other reason must be returned by Bank, and the
returned payment shall remain payable as part of the Guaranteed Obligations, all as though such
payment had not been made. Except to the extent the provisions of this Guaranty give Bank
additional rights, this Guaranty shall not be deemed to supersede or replace any other guaranties
given to Bank by Guarantor; and the obligations guaranteed hereby
shall be in addition to any other obligations guaranteed by Guarantor pursuant to any other
agreement of guaranty given to Bank and other guaranties of the Guaranteed Obligations.
TERMINATION OF GUARANTY. Guarantor may terminate this Guaranty only by written notice, delivered
personally to or received by certified or registered United States Mail by an authorized officer of
Bank at the address for notices provided herein. Such termination shall be effective only with
respect to Guaranteed Obligations arising more than 15 days after the date such written notice is
received by said Bank officer. Such termination shall not be effective with respect to Guaranteed
Obligations (including any subsequent extensions, modifications or compromises of the Guaranteed
Obligations) then existing, or Guaranteed Obligations arising subsequent to receipt by Bank of said
notice if such Guaranteed Obligations are a result of Bank’s obligation to make advances pursuant
to a commitment, or are based on Borrower’s obligations to make payments pursuant to any swap
agreement (as defined in 11 U.S.C. § 101, as in effect from time to time), entered into prior to
expiration of the 15 day notice period, or are a result of advances which are necessary for Bank to
protect its collateral or otherwise preserve its interests. Termination of this Guaranty by any
single Guarantor will not affect the existing and continuing obligations of any other Guarantor
hereunder
CONSENT TO MODIFICATIONS. Guarantor consents and agrees that Bank (and, with respect to swap
obligations, its affiliates) may from time to time, in its sole discretion, without affecting,
impairing, lessening or releasing the obligations of Guarantor hereunder: (a) extend or modify the
time, manner, place or terms of payment or performance and/or otherwise change or modify the credit
terms of the Guaranteed Obligations; (b) increase, renew, or enter into a novation of the
Guaranteed Obligations; (c) waive or consent to the departure from terms of the Guaranteed
Obligations; (d) permit any change in the business or other dealings and relations of Borrower or
any other guarantor with Bank; (e) proceed against, exchange, release, realize upon, or otherwise
deal with in any manner any collateral that is or may be held by Bank in connection with the
Guaranteed Obligations or any liabilities or obligations of Guarantor; and (f) proceed against,
settle, release, or compromise with Borrower, any insurance carrier, or any other person or entity
liable as to any part of the Guaranteed Obligations, and/or subordinate the payment of any part of
the Guaranteed Obligations to the payment of any other obligations, which may at any time be due or
owing to Bank; all in such manner and upon such terms as Bank may deem appropriate, and without
notice to or further consent from Guarantor. No invalidity, irregularity, discharge or
unenforceability of, or action or omission by Bank relating to any part of the Guaranteed
Obligations or any security therefor shall affect or impair this Guaranty.
WAIVERS AND ACKNOWLEDGMENTS. Guarantor waives and releases the following rights, demands, and
defenses Guarantor may have with respect to Bank (and, with respect to swap obligations, its
affiliates) and collection of the Guaranteed Obligations: (a) promptness and diligence in
collection of any of the Guaranteed Obligations from Borrower or any other person liable thereon,
and in foreclosure of any security interest and sale of any property serving as collateral for the
Guaranteed Obligations; (b) any law or statute that requires that Bank (and, with respect to swap
obligations, its affiliates) make demand upon, assert claims against, or collect from Borrower or
other persons or entities, foreclose any security interest, sell collateral, exhaust any remedies,
or take any other action against Borrower or other persons or entities prior to making demand upon,
collecting from or taking action against Guarantor with respect to the Guaranteed Obligations,
including any such rights Guarantor might otherwise have had under
Va. Code §§ 49-25 and 49-26, et seq., N.C.G.S. §§ 26-7, et seq., Tenn. Code Xxx. §
00-00-000, O.C.G.A. § 10-7-24, Mississippi Code Xxx. Section 87-5-1, and any successor statute and
any other applicable law; (c) any law or statute that requires that Borrower or any other person be
joined in, notified of or made part of any action against Guarantor; (d) that Bank or its
affiliates preserve, insure or perfect any security interest in collateral or sell or dispose of
collateral in a particular manner or at a particular time, provided that Bank’s obligation to
dispose of Collateral in a commercially reasonable manner is not waived hereby; (e) notice of
extensions, modifications, renewals, or novations of the Guaranteed Obligations, of any new
transactions or other relationships between Bank, Borrower and/or any guarantor, and of changes in
the financial condition of, ownership of, or business structure of Borrower or any other guarantor;
(f) presentment, protest, notice of dishonor, notice of default, demand for payment, notice of
intention to accelerate maturity, notice of acceleration of maturity, notice of sale, and all other
notices of any kind whatsoever to which Guarantor may be entitled; (g) the right to assert against
Bank or its affiliates any defense (legal or equitable), set-off, counterclaim, or claim that
Guarantor may have at any time against Borrower or any other party liable to Bank or its
affiliates; (h) all defenses relating to invalidity, insufficiency, unenforceability, enforcement,
release or impairment of Bank or its affiliates’ lien on any collateral, of the Loan Documents, or
of any other guaranties held by Bank; (i) any right to which Guarantor is or may become entitled to
be subrogated to Bank or its affiliates’ rights against Borrower or to seek contribution,
reimbursement, indemnification, payment or the like, or participation in any claim, right or remedy
of Bank or its affiliates against Borrower or any security which Bank or its affiliates now has or
hereafter acquires, until such time as the Guaranteed Obligations have been fully satisfied beyond
the expiration of any applicable preference period: (j) any claim or defense that acceleration of
maturity of the Guaranteed Obligations is stayed against Guarantor because of the stay of assertion
or of acceleration of claims against any other person or entity for any reason including the
bankruptcy or insolvency of that person or entity; and (k) the right to marshalling of Borrower’s
assets or the benefit of any exemption claimed by Guarantor. Guarantor acknowledges and represents
that Guarantor has relied upon Guarantor’s own due diligence in making an independent appraisal of
Borrower, Borrower’s business affairs and financial condition, and any collateral; Guarantor will
continue to be responsible for making an independent appraisal of such matters; and Guarantor has
not relied upon Bank or its affiliates for information regarding Borrower or any collateral.
FINANCIAL CONDITION. Guarantor warrants, represents and covenants to Bank and its affiliates that
on and after the date hereof: (a) the fair saleable value of Guarantor’s assets exceeds its
liabilities, Guarantor is meeting its current liabilities as they mature, and Guarantor is and
shall remain solvent; (b) all financial statements of Guarantor furnished to Bank are correct and
accurately reflect the financial condition of Guarantor as of the respective dates thereof; (c)
since the date of such financial statements, there has not occurred a material adverse change in
the financial condition of Guarantor; (d) there are not now pending any court or administrative
proceedings or undischarged judgments against Guarantor, no federal or state tax liens have been
filed or threatened against Guarantor, and Guarantor is not in default or claimed default under any
agreement; and (e) at such reasonable times as Bank requests, Guarantor will furnish Bank and its
affiliates with such other financial information as Bank and its affiliates may reasonably request.
INTEREST AND APPLICATION OF PAYMENTS. Regardless of any other provision of this Guaranty or other
Loan Documents, if for any reason the effective interest on any of the Guaranteed Obligations
should exceed the maximum lawful interest, the effective interest shall be deemed reduced to and
shall be such maximum lawful interest, and any sums of interest which have been collected in excess
of such maximum lawful interest shall be applied as a credit against the unpaid principal balance
of the Guaranteed Obligations. Monies received from any source by Bank or its affiliates for
application toward payment of the Guaranteed Obligations may be applied to such Guaranteed
Obligations in any manner or order deemed appropriate by Bank and its affiliates.
DEFAULT. If any of the following events occur, a default (“Default”) under this Guaranty shall
exist: (a) failure of timely payment or performance of the Guaranteed Obligations or a default
under any Loan Document; (b) a breach of any agreement or representation contained or referred to
in the Guaranty, or any of the Loan Documents, or contained in any other contract or agreement of
Guarantor with Bank or its affiliates, whether now existing or hereafter arising; (c) the death of,
appointment of a guardian for, dissolution of, termination of existence of, loss of good standing
status by, appointment of a receiver for, assignment for the benefit of creditors of, or the
commencement of any insolvency or bankruptcy proceeding by or against Guarantor or any general
partner of or the holder(s) of the majority ownership interests of Guarantor; and/or (d) Bank
determines in good faith, in its sole discretion, that the prospects for payment or performance of
the Guaranteed Obligations are impaired or a material adverse change has occurred in the business
or prospects of Borrower or Guarantor, financial or otherwise.
If a Default occurs, the Guaranteed Obligations shall be due immediately and payable without
notice, other than Guaranteed Obligations under any swap agreements (as defined in 11 U.S.C. § 101,
as in effect from time to time) with Bank or its affiliates, which shall be due in accordance with
and governed by the provisions of said swap agreements, and, Bank and its affiliates may exercise
any rights and remedies as provided in this Guaranty and other Loan Documents, or as provided at
law or equity. Guarantor shall pay interest on the Guaranteed Obligations from such Default at the
highest rate of interest charged on any of the Guaranteed Obligations.
ATTORNEYS’ FEES AND OTHER COSTS OF COLLECTION. Guarantor shall pay all of Bank’s and its
affiliates’ reasonable expenses incurred to enforce or collect any of the Guaranteed Obligations,
including, without limitation, reasonable arbitration, paralegals’, attorneys’ and experts’ fees
and expenses, whether incurred without the commencement of a suit, in any suit, arbitration, or
administrative proceeding, or in any appellate or bankruptcy proceeding.
SUBORDINATION OF OTHER DEBTS. Guarantor agrees: (a) to subordinate the obligations now or hereafter
owed by Borrower to Guarantor (“Subordinated Debt”) to any and all obligations of Borrower to Bank
or its affiliates now or hereafter existing while this Guaranty is in effect, provided however that
Guarantor may receive regularly scheduled principal and interest payments on the Subordinated Debt
so long as (i) all sums due and payable by Borrower to Bank and its affiliates have been paid in
full on or prior to such date, and (ii) no event or condition which constitutes or which with
notice or the lapse or time would constitute an event of default with respect to the Guaranteed
Obligations shall be continuing on or as of the payment date; (b) Guarantor will either place a
legend indicating such subordination on every note, ledger
page or other document evidencing any part of the Subordinated Debt or deliver such documents to
Bank; and (c) except as permitted by this paragraph, Guarantor will not request or accept payment
of or any security for any part of the Subordinated Debt, and any proceeds of the Subordinated Debt
paid to Guarantor, through error or otherwise, shall immediately be forwarded to Bank by Guarantor,
properly endorsed to the order of Bank, to apply to the Guaranteed Obligations.
MISCELLANEOUS. Assignment. This Guaranty and other Loan Documents shall inure to the benefit of and
be binding upon the parties and their respective heirs, legal representatives, successors and
assigns. Bank’s interests in and rights under this Guaranty and other Loan Documents are freely
assignable, in whole or in part, by Bank. Any assignment shall not release Guarantor from the
Guaranteed Obligations. Organization; Powers. Guarantor (i) is (a) an adult individual and is
sui juris, or (b) a corporation, general partnership, limited partnership, limited
liability company or other legal entity (as indicated below), duly organized, validly existing and
in good standing under the laws of its state of organization, and is authorized to do business in
each other jurisdiction wherein its ownership of property or conduct of business legally requires
such organization, (ii) has the power and authority to own its properties and assets and to carry
on its business as now being conducted and as now contemplated; and (iii) has the power and
authority to execute, deliver and perform, and by all necessary action has authorized the
execution, delivery and performance of, all of its obligations under this Guaranty and any other
Loan Document to which it is a party. Applicable Law; Conflict Between Documents. This Guaranty
shall be governed by and construed under the laws of the state named in Bank’s address shown above
without regard to that state’s conflict of laws principles. If the terms of this Guaranty should
conflict with the terms of any commitment letter that survives closing, the terms of this Guaranty
shall control. Guarantor’s Accounts. Except as prohibited by law, Guarantor grants Bank and its
affiliates a security interest in all of Guarantor’s accounts with Bank and its affiliates.
Jurisdiction. Guarantor irrevocably agrees to non-exclusive personal jurisdiction in the state
named in Bank’s address shown above. Severability. If any provision of this Guaranty or of the
other Loan Documents shall be prohibited or invalid under applicable law, such provision shall be
ineffective but only to the extent of such prohibition or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Guaranty or other Loan Documents.
Notices. Any notices to Guarantor shall be sufficiently given if in writing and mailed or delivered
to Guarantor’s address shown above or such other address as provided hereunder, and to Bank, if in
writing and mailed or delivered to Wachovia Bank, National Association, Mail Code VA7628, X.X. Xxx
00000, Xxxxxxx, XX 00000 or Wachovia Bank, National Association, Mail Code VA7628, 00 Xxxxx
Xxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000 or such other address as Bank may specify in writing from time
to time. Notices to Bank must include the mail code. In the event that Guarantor changes
Guarantor’s address at any time prior to the date the Guaranteed Obligations are paid in full,
Guarantor agrees to promptly give written notice of said change of address to Bank by registered or
certified mail, return receipt requested, all charges prepaid. Plural; Captions. All references in
the Loan Documents to borrower, guarantor, person, document or other nouns of reference mean both
the singular and plural form, as the case may be, and the term “person” shall mean any individual
person or entity. The captions contained in the Loan Documents are inserted for convenience only
and shall not affect the meaning or interpretation of the Loan Documents. Binding Contract.
Guarantor by execution of and Bank by acceptance of this Guaranty agree that each party is bound to
all terms and provisions of this Guaranty. Amendments, Waivers and Remedies. No waivers,
amendments or modifications of this Guaranty and other Loan Documents shall be valid unless in
writing and signed by an officer of Bank. No waiver by Bank or its affiliates of any Default shall
operate as a waiver of any other Default or the same Default on a future occasion. Neither the
failure nor any delay on the part of Bank or its affiliates in exercising any right, power, or
privilege granted pursuant to this Guaranty and other Loan Documents shall operate as a waiver
thereof, nor shall a single or partial exercise thereof preclude any other or further exercise or
the exercise of any other right, power or privilege. All remedies available to Bank or its
affiliates with respect to this Guaranty and other Loan Documents and remedies available at law or
in equity shall be cumulative and may be pursued concurrently or successively. Partnerships. If
Guarantor is a partnership, the obligations, liabilities and agreements on the part of Guarantor
shall remain in full force and effect and fully applicable notwithstanding any changes in the
individuals comprising the partnership. The term “Guarantor” includes any altered or successive
partnerships, and predecessor partnership(s) and the partners shall not be released from any
obligations or liabilities hereunder. Loan Documents. The term “Loan Documents” refers to all
documents executed in connection with or related to the Guaranteed Obligations and may include,
without limitation, commitment letters that survive closing, loan agreements, other guaranty
agreements, security agreements, instruments, financing statements, mortgages, deeds of trust,
deeds to secure debt, letters of credit and any amendments or supplements (excluding swap
agreements as defined in 11 U.S.C. § 101, as in effect from time to time). LIMITATION ON LIABILITY;
WAIVER OF PUNITIVE DAMAGES. EACH OF THE PARTIES HERETO, INCLUDING BANK BY ACCEPTANCE HEREOF, AGREES
THAT IN ANY JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY CLAIM OR CONTROVERSY BETWEEN OR
AMONG THEM THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE LOAN DOCUMENTS
OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR AMONG THEM OR THE OBLIGATIONS EVIDENCED HEREBY OR
RELATED HERETO, IN NO EVENT SHALL ANY PARTY HAVE A REMEDY OF, OR BE LIABLE TO THE OTHER FOR, (1)
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR (2) PUNITIVE OR EXEMPLARY DAMAGES. EACH OF THE
PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO PUNITIVE OR EXEMPLARY DAMAGES THEY MAY HAVE
OR WHICH MAY ARISE IN THE FUTURE IN CONNECTION WITH ANY SUCH PROCEEDING, CLAIM OR CONTROVERSY,
WHETHER THE SAME IS RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY OR OTHERWISE. FINAL AGREEMENT.
This Agreement and the other Loan Documents represent the final agreement between the parties and
may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of the
parties. There are no unwritten oral agreements between the parties.
FINANCIAL AND OTHER INFORMATION. Guarantor shall deliver to Bank such information as Bank may
reasonably request from time to time, including without limitation, financial statements and
information pertaining to Guarantor’s financial condition. Such information shall be true,
complete, and accurate.
NEGATIVE COVENANTS. Guarantor agrees that from the date hereof and until final payment in full of
the Guaranteed Obligations, unless Bank shall otherwise consent in writing, Guarantor will not:
Default on Other Contracts or Obligations. Default on any material contract with or obligation when
due to a third party or default in the performance of any obligation to a third party incurred for
money borrowed. Government Intervention. Permit the assertion or making
of any seizure, vesting or intervention by or under authority of any governmental entity, as a
result of which the management of Guarantor or any guarantor is displaced of its authority in the
conduct of its respective business or such business is curtailed or materially impaired. Judgment
Entered. Permit the entry of any monetary judgment or the assessment against, the filing of any tax
lien against, or the issuance of any writ of garnishment or attachment against any property of or
debts due. Retire or Repurchase Capital Stock. Retire or otherwise acquire any of its capital
stock.
WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF GUARANTOR BY EXECUTION
HEREOF AND BANK BY ACCEPTANCE HEREOF, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT
EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS GUARANTY, THE LOAN DOCUMENTS OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED
IN CONNECTION WITH THIS GUARANTY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT HERETO. THIS PROVISION IS A MATERIAL
INDUCEMENT TO BANK TO ACCEPT THIS GUARANTY. EACH OF THE PARTIES AGREES THAT THE TERMS HEREOF SHALL
SUPERSEDE AND REPLACE ANY PRIOR AGREEMENT RELATED TO ARBITRATION OF DISPUTES BETWEEN THE PARTIES
CONTAINED IN ANY LOAN DOCUMENT OR ANY OTHER DOCUMENT OR AGREEMENT HERETOFORE EXECUTED IN CONNECTION
WITH RELATED TO OR BEING REPLACED, SUPPLEMENTED, EXTENDED OR MODIFIED BY, THIS GUARANTY.
IN WITNESS WHEREOF, Guarantor, on the day and year first written above, has caused this
Unconditional Guaranty to be executed under seal.
| G-Air Holdings Corp. | ||||||||
| By: | [signature] | (SEAL) | ||||||
| Name: | ||||||||
| Title: | Corporate Secretary | |||||||
Tracking #: 120212rke
CAT — Deal # 000000 Xxxxxxxx XX 000000
CAT — Deal # 000000 Xxxxxxxx XX 000000
PROMISSORY NOTE
$750,000.00
August 15, 2006
Gulfstream International Airlines, Inc.
0000 Xxxxxxx Xxxx, 0xx Xxxxx
Xxxxx, Xxxxxxx 00000
(Hereinafter referred to as “Borrower”)
0000 Xxxxxxx Xxxx, 0xx Xxxxx
Xxxxx, Xxxxxxx 00000
(Hereinafter referred to as “Borrower”)
Wachovia Bank, National Association
Xxxxxxxxxxxx, Xxxxxxx 00000
(Hereinafter referred to as “Bank”)
Xxxxxxxxxxxx, Xxxxxxx 00000
(Hereinafter referred to as “Bank”)
Borrower promises to pay to the order of Bank, in lawful money of the United States of America, at
its office indicated above or wherever else Bank may specify, the sum of Seven Hundred Fifty
Thousand and No/100 Dollars ($750,000.00) or such sum as may be advanced and outstanding from time
to time, with interest on the unpaid principal balance at the rate and on the terms provided in
this Promissory Note (including all renewals, extensions or modifications hereof, this “Note”).
LOAN AGREEMENT. This Note is subject to the provisions of that certain Loan Agreement between Bank
and Borrower of even date herewith, as modified from time to time.
LINE OF CREDIT. Borrower may borrow, repay and reborrow, and, upon the request of Borrower, Bank
shall advance and readvance under this Note from time to time (each an “Advance” and together the
“Advances”), so long as the total principal balance outstanding under this Note at any one time
does not exceed the principal amount stated on the face of this Note, subject to the limitations
described in any loan agreement to which this Note is subject. Bank’s obligation to make Advances
under this Note shall terminate if a demand for payment is made under this Note or if a Default (as
defined in the other Loan Documents) under any Loan Document occurs or in any event, on July 31,
2007 unless renewed or extended by Bank in writing upon such terms then satisfactory to Bank. As of
the date of each proposed Advance, Borrower shall be deemed to represent that each representation
made in the Loan Documents is true as of such date. 30-Day Payout. During the term of the Note,
Borrower agrees to pay down the outstanding balance to a maximum of $100.00 for 30 consecutive days
annually.
If Borrower subscribes to Bank’s cash management services and such services are applicable to this
line of credit, the terms of such service shall control the manner in which funds are transferred
between the applicable demand deposit account and the line of credit for credit or debit to the
line of credit.
USE OF PROCEEDS. Borrower shall use the proceeds of the loan(s) evidenced by this Note
for the commercial purposes of Borrower, as follows: for short term and seasonal working capital
needs.
SECURITY. Borrower has granted Bank a security interest in the collateral described in the Loan
Documents, including, but not limited to, personal property collateral described in that certain
Security Agreement of even date herewith.
INTEREST RATE. Interest shall accrue on the unpaid principal balance of this Note from the date
hereof at the LIBOR Market Index Rate plus 2.75%, as that rate may change from day to day in
accordance with changes in the LIBOR Market Index Rate (“Interest Rate”). “LIBOR Market Index
Rate”, for any day, means the rate for 1 month U.S. dollar deposits as reported on Telerate page
3750 as of 11:00 a.m., London time, on such day, or if such day is not a London business day, then
the immediately preceding London business day (or if not so reported, then as determined by Bank
from another recognized source or interbank quotation).
DEFAULT RATE. In addition to all other rights contained in this Note, if a default in the payment
of Obligations occurs, all outstanding Obligations, other than Obligations under any swap
agreements (as defined in 11 U.S.C. § 101, as in effect from time to time) between Borrower and
Bank or its affiliates, shall bear interest at the Interest Rate plus 3% (“Default Rate”). The
Default Rate shall also apply from demand until the Obligations or any judgment thereon is paid in
full.
INTEREST AND FEE(S) COMPUTATION (ACTUAL/360). Interest and fees, if any, shall be computed on the
basis of a 360-day year for the actual number of days in the applicable period (“Actual/360
Computation”). The Actual/360 Computation determines the annual effective interest yield by taking
the stated (nominal) rate for a year’s period and then dividing said rate by 360 to determine the
daily periodic rate to be applied for each day in the applicable period. Application of the
Actual/360 Computation produces an annualized effective rate exceeding the nominal rate.
REPAYMENT TERMS. This Note shall be due and payable in consecutive monthly payments of accrued
interest only, commencing on September 15, 2006, and continuing on the same day of each month
thereafter until fully paid. In any event, this Note shall be due and payable in full, including
all principal and accrued interest, on demand.
AUTOMATIC DEBIT OF CHECKING ACCOUNT FOR LOAN PAYMENT. Borrower authorizes Bank to debit demand
deposit account number 2000025631672 or any other account with Wachovia Bank: National Association
(000000000) designated in writing by Borrower, beginning September 15, 2006 for any payments due
under this Note. Borrower further certifies that Borrower holds legitimate ownership of this
account and preauthorizes this periodic debit as part of its right under said ownership.
APPLICATION OF PAYMENTS. Monies received by Bank from any source for application toward payment of
the Obligations shall be applied to accrued interest and then to principal. Upon the occurrence of
a default in the payment of the Obligations or a Default (as defined in the other Loan Documents)
under any other Loan Document, monies may be applied to the Obligations in any manner or order
deemed appropriate by Bank.
If any payment received by Bank under this Note or other Loan Documents is rescinded, avoided or
for any reason returned by Bank because of any adverse claim or threatened action, the
returned payment shall remain payable as an obligation of all persons liable under this Note or
other Loan Documents as though such payment had not been made.
DEFINITIONS. Loan Documents. The term “Loan Documents”, as used in this Note and the other Loan
Documents, refers to all documents executed in connection with or related to the loan evidenced by
this Note and any prior notes which evidence all or any portion of the loan evidenced by this Note,
and any letters of credit issued pursuant to any loan agreement to which this Note is subject, any
applications for such letters of credit and any other documents executed in connection therewith or
related thereto, and may include, without limitation, a commitment letter that survives closing, a
loan agreement, this Note, guaranty agreements, security agreements, security instruments,
financing statements, mortgage instruments, any renewals or modifications, whenever any of the
foregoing are executed, but does not include swap agreements (as defined in 11 U.S.C. § 101, as in
effect from time to time). Obligations. The term “Obligations”, as used in this Note and the other
Loan Documents, refers to any and all indebtedness and other obligations under this Note, all other
obligations under any other Loan Document(s), and all obligations under any swap agreements (as
defined in 11 U.S.C. § 101, as in effect from time to time) between Borrower and Bank, or its
affiliates, whenever executed. Certain Other Terms. All terms that are used but not otherwise
defined in any of the Loan Documents shall have the definitions provided in the Uniform Commercial
Code.
LATE CHARGE. If any payments are not timely made, Borrower shall also pay to Bank a late charge
equal to 5% of each payment past due for 10 or more days. This late charge shall not apply to
payments due at maturity or by acceleration hereof, unless such late payment is in an amount not
greater than the highest periodic payment due hereunder.
Acceptance by Bank of any late payment without an accompanying late charge shall not be deemed a
waiver of Bank’s right to collect such late charge or to collect a late charge for any subsequent
late payment received.
ATTORNEYS’ FEES AND OTHER COLLECTION COSTS. Borrower shall pay all of Bank’s reasonable expenses
actually incurred to enforce or collect any of the Obligations including, without limitation,
reasonable arbitration, paralegals’, attorneys’ and experts’ fees and expenses, whether incurred
without the commencement of a suit, in any trial, arbitration, or administrative proceeding, or in
any appellate or bankruptcy proceeding.
USURY. If at any time the effective interest rate under this Note would, but for this paragraph,
exceed the maximum lawful rate, the effective interest rate under this Note shall be the maximum
lawful rate, and any amount received by Bank in excess of such rate shall be applied to principal
and then to fees and expenses, or, if no such amounts are owing, returned to Borrower.
DEMAND NOTE. This is a demand Note and all Obligations hereunder shall become immediately due and
payable upon demand. In addition, the Obligations hereunder shall automatically become immediately
due and payable if Borrower or any guarantor or endorser of this Note commences or has commenced
against it a bankruptcy or insolvency proceeding.
REMEDIES. Upon the occurrence of a default in the payment of the Obligations or a Default (as
defined in the other Loan Documents) under any other Loan Document, Bank may at any time
thereafter, take the following actions: Bank Lien. Foreclose its security interest or lien against
Borrower’s accounts without notice. Cumulative. Exercise any rights and remedies as provided under
the Note and the other Loan Documents, or as provided by law or equity.
FINANCIAL AND OTHER INFORMATION. Borrower shall deliver to Bank such information as Bank may
reasonably request from time to time, including without limitation, financial statements and
information pertaining to Borrowers financial condition. Such information shall be true, complete,
and accurate.
WAIVERS AND AMENDMENTS. No waivers, amendments or modifications of this Note and other Loan
Documents shall be valid unless in writing and signed by an officer of Bank. No waiver by Bank of
any Default (as defined in the other Loan Documents) shall operate as a waiver of any other Default
or the same Default on a future occasion. Neither the failure nor any delay on the part of Bank in
exercising any right, power, or remedy under this Note and other Loan Documents shall operate as a
waiver thereof, nor shall a single or partial exercise thereof preclude any other or further
exercise thereof or the exercise of any other right, power or remedy.
Except to the extent otherwise provided by the Loan Documents or prohibited by law, each Borrower
and each other person liable under this Note waives presentment, protest, notice of dishonor,
notice of intention to accelerate maturity, notice of acceleration of maturity, notice of sale and
all other notices of any kind. Further, each agrees that Bank may (i) extend, modify or renew this
Note or make a novation of the loan evidenced by this Note, and/or (ii) grant releases, compromises
or indulgences with respect to any collateral securing this Note, or with respect to any Borrower
or other person liable under this Note or any other Loan Documents, all without notice to or
consent of each Borrower and other such person, and without affecting the liability of each
Borrower and other such person; provided, Bank may not extend, modify or renew this Note or make a
novation of the loan evidenced by this Note without the consent of the Borrower, or if there is
more than one Borrower, without the consent of at least one Borrower; and further provided, if
there is more than one Borrower, Bank may not enter into a modification of this Note which
increases the burdens of a Borrower without the consent of that Borrower.
MISCELLANEOUS PROVISIONS. Assignment. This Note and the other Loan Documents shall inure to the
benefit of and be binding upon the parties and their respective heirs, legal representatives,
successors and assigns. Bank’s interests in and rights under this Note and the other Loan Documents
are freely assignable, in whole or in part, by Bank. In addition, nothing in this Note or any of
the other Loan Documents shall prohibit Bank from pledging or assigning this Note or any of the
other Loan Documents or any interest therein to any Federal Reserve Bank. Borrower shall not assign
its rights and interest hereunder without the prior written consent of Bank, and any attempt by
Borrower to assign without Bank’s prior written consent is null and void. Any assignment shall not
release Borrower from the Obligations. Applicable Law; Conflict Between Documents. This Note and,
unless otherwise provided in any other Loan Document, the other Loan Documents shall be governed by
and construed under the laws of the state named in Bank’s address on the first page hereof without
regard to that state’s conflict of laws principles. If the terms of this Note should conflict with
the terms of any loan agreement or any commitment letter that survives closing, the terms of this
Note shall control.
Borrower’s Accounts. Except as prohibited by law, Borrower grants Bank a security interest in all
of Borrower’s accounts with Bank and any of its affiliates. Swap Agreements. All swap agreements
(as defined in 11 U.S.C. § 101, as in effect from time to time), if any, between Borrower and Bank
or its affiliates are independent agreements governed by the written provisions of said swap
agreements, which will remain in full force and effect, unaffected by any repayment, prepayment,
acceleration, reduction, increase or change in the terms of this Note, except as otherwise
expressly provided in said written swap agreements, and any payoff statement from Bank relating to
this Note shall not apply to said swap agreements except as otherwise expressly provided in such
payoff statement. Jurisdiction. Borrower irrevocably agrees to non-exclusive personal jurisdiction
in the state named in Bank’s address on the first page hereof. Severability. If any provision of
this Note or of the other Loan Documents shall be prohibited or invalid under applicable law, such
provision shall be ineffective but only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this Note or other such
document. Notices. Any notices to Borrower shall be sufficiently given, if in writing and mailed or
delivered to the Borrower’s address shown above or such other address as provided hereunder, and to
Bank, if in writing and mailed or delivered to Wachovia Bank, National Association, Mail Code
VA7628, P. O. Xxx 00000, Xxxxxxx, XX 00000 or Wachovia Bank, National Association, Mail Code
VA7628, 00 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000 or such other address as Bank may specify in
writing from time to time. Notices to Bank must include the mail code. In the event that Borrower
changes Borrower’s address at any time prior to the date the Obligations are paid in full, Borrower
agrees to promptly give written notice of said change of address by registered or certified mail,
return receipt requested, all charges prepaid. Plural; Captions. All references in the Loan
Documents to Borrower, guarantor, person, document or other nouns of reference mean both the
singular and plural form, as the case may be, and the term “person” shall mean any individual,
person or entity. The captions contained in the Loan Documents are inserted for convenience only
and shall not affect the meaning or interpretation of the Loan Documents. Advances. Bank may, in
its sole discretion, make other advances which shall be deemed to be advances under this Note, even
though the stated principal amount of this Note may be exceeded as a result thereof. Posting of
Payments. All payments received during normal banking hours after 2:00 p.m. local time at the
office of Bank first shown above shall be deemed received at the opening of the next banking day.
Joint and Several Obligations. If there is more than one Borrower, each is jointly and severally
obligated. Fees and Taxes. Borrower shall promptly pay all documentary, intangible recordation
and/or similar taxes on this transaction whether assessed at closing or arising from time to time
LIMITATION ON LIABILITY; WAIVER OF PUNITIVE DAMAGES. EACH OF THE PARTIES HERETO, INCLUDING BANK BY
ACCEPTANCE HEREOF, AGREES THAT IN ANY JUDICIAL, MEDIATION OR ARBITRATION PROCEEDING OR ANY CLAIM OR
CONTROVERSY BETWEEN OR AMONG THEM THAT MAY ARISE OUT OF OR BE IN ANY WAY CONNECTED WITH THIS
AGREEMENT, THE LOAN DOCUMENTS OR ANY OTHER AGREEMENT OR DOCUMENT BETWEEN OR AMONG THEM OR THE
OBLIGATIONS EVIDENCED HEREBY OR RELATED HERETO, IN NO EVENT SHALL ANY PARTY HAVE A REMEDY OF, OR BE
LIABLE TO THE OTHER FOR, (1) INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR (2) PUNITIVE OR
EXEMPLARY DAMAGES. EACH OF THE PARTIES HEREBY EXPRESSLY WAIVES ANY RIGHT OR CLAIM TO PUNITIVE OR
EXEMPLARY DAMAGES THEY MAY HAVE OR WHICH MAY ARISE IN
THE FUTURE IN CONNECTION WITH ANY SUCH PROCEEDING, CLAIM OR CONTROVERSY, WHETHER THE SAME IS
RESOLVED BY ARBITRATION, MEDIATION, JUDICIALLY OR OTHERWISE. Patriot Act Notice. To help fight the
funding of terrorism and money laundering activities, Federal law requires all financial
institutions to obtain, verify, and record information that identifies each person who opens an
account. For purposes of this section, account shall be understood to include loan accounts. FINAL
AGREEMENT. This Note and the other Loan Documents represent the final agreement between the parties
and may not be contradicted by evidence of prior, contemporaneous or subsequent oral agreements of
the parties. There are no unwritten oral agreements between the parties.
WAIVER OF JURY TRIAL. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF BORROWER BY EXECUTION
HEREOF AND BANK BY ACCEPTANCE HEREOF, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT
EACH MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS NOTE, THE LOAN DOCUMENTS OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN
CONNECTION WITH THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL
OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT TO
BANK TO ACCEPT THIS NOTE. EACH OF THE PARTIES AGREES THAT THE TERMS HEREOF SHALL SUPERSEDE AND
REPLACE ANY PRIOR AGREEMENT RELATED TO ARBITRATION OF DISPUTES BETWEEN THE PARTIES CONTAINED IN ANY
LOAN DOCUMENT OR ANY OTHER DOCUMENT OR AGREEMENT HERETOFORE EXECUTED IN CONNECTION WITH, RELATED TO
OR BEING REPLACED, SUPPLEMENTED, EXTENDED OR MODIFIED BY, THIS NOTE.
IN WITNESS WHEREOF, Borrower, on the day and year first above written, has caused this Note to be
executed under seal.
| Gulfstream International Airlines, Inc. | ||||||||
| By: | [signature]
|
(SEAL) | ||||||
| Legal Affairs and Corporate Secretary | ||||||||
Tracking #: 120212rke
CAT — Deal # 000000 Xxxxxxxx XX 000000
CAT — Deal # 000000 Xxxxxxxx XX 000000
SECURITY AGREEMENT
August 15, 2006
Gulfstream International Airlines, Inc.
0000 Xxxxxxx Xxxx, 0xx Xxxxx
Xxxxx, Xxxxxxx 00000
(Hereinafter referred to as “Debtor)
0000 Xxxxxxx Xxxx, 0xx Xxxxx
Xxxxx, Xxxxxxx 00000
(Hereinafter referred to as “Debtor)
Wachovia Bank, National Association
Xxxxxxxxxxxx, Xxxxxxx 00000
(Hereinafter referred to as “Bank”)
Xxxxxxxxxxxx, Xxxxxxx 00000
(Hereinafter referred to as “Bank”)
For value received and to secure payment and performance of any and all obligations of Debtor (also
referred to herein as “Borrower”) to Bank however created, arising or evidenced, whether direct or
indirect, absolute or contingent, now existing or hereafter arising or acquired, including swap
agreements (as defined in 11 U.S.C. § 101, as in effect from time to time), future advances, and
all costs and expenses incurred by Bank to obtain, preserve, perfect and enforce the security
interest granted herein and to maintain, preserve and collect the property subject to the security
interest (collectively, “Obligations”), Debtor hereby grants to Bank a continuing security interest
in and lien upon the following described property, whether now owned or hereafter acquired, and any
additions, replacements, accessions, or substitutions thereof and all cash and non-cash proceeds
and products thereof (collectively, “Collateral”):
All of the personal property of Debtor of every kind and nature including, without limitation, all
accounts, equipment, accessions, inventory, chattel paper, instruments, investment property,
documents, letter-of credit rights, deposit accounts, and general intangibles, wherever located.
Debtor hereby represents and agrees that:
OWNERSHIP. Debtor owns the Collateral or Debtor will purchase and acquire rights in the Collateral
within ten days of the date advances are made under the Loan Documents. If Collateral is being
acquired with the proceeds of an advance under the Loan Documents, Debtor authorizes Bank to
disburse proceeds directly to the seller of the Collateral. The Collateral is free and clear of all
liens, security interests, and claims except those previously reported in writing to and approved
by Bank, and Debtor will keep the Collateral free and clear from all liens, security interests and
claims, other than those granted to or approved by Bank.
NAME AND OFFICES; JURISDICTION OF ORGANIZATION. The name and address of Debtor appearing at the
beginning of this Agreement are Debtor’s exact legal name and the address of its chief executive
office. There has been no change in the name of Debtor, or the name under which Debtor conducts
business, within the five years preceding the date hereof except as previously reported in writing
to Bank. Debtor has not moved its chief executive office within the five years preceding the date
hereof except as previously reported in writing to Bank. Debtor is organized under the laws of the
State of Florida and has not changed the jurisdiction of its organization within the five years
preceding the date hereof except as previously reported in writing to Bank.
TITLE/TAXES. Debtor has good and marketable title to Collateral and will warrant and defend same
against all claims. Debtor will not transfer, sell, or lease Collateral (except as permitted
herein). Debtor agrees to pay promptly all taxes and assessments upon or for the use of Collateral
and on this Security Agreement. At its option, Bank may discharge taxes, liens, security interests
or other encumbrances at any time levied or placed on Collateral. Debtor agrees to reimburse Bank,
on demand, for any such payment made by Bank. Any amounts so paid shall be added to the
Obligations.
WAIVERS. Debtor agrees not to assert against Bank as a defense (legal or equitable), as a set-off,
as a counterclaim, or otherwise, any claims Debtor may have against any seller or lessor that
provided personal property or services relating to any part of the Collateral or against any other
party liable to Bank for all or any part of the Obligations. Debtor waives all exemptions and
homestead rights with regard to the Collateral. Debtor waives any and all rights to any bond or
security which might be required by applicable law prior to the exercise of any of Bank’s remedies
against any Collateral. All rights of Bank and security interests hereunder, and all obligations of
Debtor hereunder, shall be absolute and unconditional, not discharged or impaired irrespective of
(and regardless of whether Debtor receives any notice of): (i) any lack of validity or
enforceability of any Loan Document; (ii) any change in the time, manner or place of payment or
performance, or in any term, of all or any of the Obligations or the Loan Documents or any other
amendment or waiver of or any consent to any departure from any Loan Document; or (iii) any
exchange, insufficiency, unenforceability, enforcement, release, impairment or non-perfection of
any collateral, or any release of or modifications to or insufficiency, unenforceability or
enforcement of the obligations of any guarantor or other obligor. To the extent permitted by law,
Debtor hereby waives any rights under any valuation, stay, appraisement, extension or redemption
laws now existing or which may hereafter exist and which, but for this provision, might be
applicable to any sale or disposition of the Collateral by Bank; and any other circumstance which
might otherwise constitute a defense available to, or a discharge of any party with respect to the
Obligations.
NOTIFICATIONS; LOCATION OF COLLATERAL. Debtor will notify Bank in writing at least 30 days prior to
any change in: (i) Debtor’s chief place of business and/or residence; (ii) Debtor’s name or
identity; (iii) Debtor’s corporate/organizational structure; or (iv) the jurisdiction in which
Debtor is organized. In addition, Debtor shall promptly notify Bank of any claims or alleged claims
of any other person or entity to the Collateral or the institution of any litigation, arbitration,
governmental investigation or administrative proceedings against or affecting the Collateral.
Debtor will keep Collateral at the location(s) previously provided to Bank until such time as Bank
provides written advance consent to a change of location. Debtor will bear the cost of preparing
and filing any documents necessary to protect Bank’s liens.
COLLATERAL CONDITION AND LAWFUL USE. Debtor represents that the Collateral is in good repair and
condition and that Debtor shall use reasonable care to prevent Collateral from being damaged or
depreciating, normal wear and tear excepted. Debtor shall immediately notify Bank of any material
loss or damage to Collateral. Debtor shall not permit any item of Collateral to become a fixture to
real estate or an accession to other personal property unless such property is also Collateral
hereunder. Debtor represents it is in compliance in all respects with all laws, rules and
regulations applicable to the Collateral and its properties, operations, business, and finances.
RISK OF LOSS AND INSURANCE. Debtor shall bear all risk of loss with respect to the
Collateral. The injury to or loss of Collateral, either partial or total, shall not release Debtor
from payment or other performance hereof. Debtor agrees to obtain and keep in force property
insurance on the Collateral with a Lender’s Loss Payable Endorsement in favor of Bank and
commercial general liability insurance naming Bank as Additional Insured and such other insurance
as Bank may require from time to time. Such insurance is to be in form and amounts
satisfactory to Bank and issued by reputable insurance carriers satisfactory to Bank with
a Best Insurance Report Key Rating of at least “A-”. All such policies shall provide to
Bank a minimum of 30 days written notice of cancellation. Debtor shall furnish to Bank such
policies, or other evidence of such policies satisfactory to Bank. If Debtor fails to obtain or
maintain in force such insurance or fails to furnish such evidence, Bank is authorized, but not
obligated, to purchase any or all insurance or “Single Interest Insurance” protecting such interest
as Bank deems appropriate against such risks and for such coverage and for such amounts, including
either the loan amount or value of the Collateral, all at its discretion, and at Debtor’s expense.
In such event, Debtor agrees to reimburse Bank for the cost of such insurance and Bank may add such
cost to the Obligations. Debtor shall bear the risk of loss to the extent of any deficiency in the
effective insurance coverage with respect to loss or damage to any of the Collateral. Debtor hereby
assigns to Bank the proceeds of all property insurance covering the Collateral up to the amount of
the Obligations and directs any insurer to make payments directly to Bank. Debtor hereby appoints
Bank its attorney-in-fact, which appointment shall be irrevocable and coupled with an interest for
so long as Obligations are unpaid, to file proof of loss and/or any other forms required to collect
from any insurer any amount due from any damage or destruction of Collateral, to agree to and bind
Debtor as to the amount of said recovery, to designate payee(s) of such recovery, to grant releases
to insurer, to grant subrogation rights to any insurer, and to endorse any settlement check or
draft. Debtor agrees not to exercise any of the foregoing powers granted to Bank without Bank’s
prior written consent.
FINANCING STATEMENTS, CERTIFICATES OF TITLE, POWER OF ATTORNEY. No financing statement (other than
any filed or approved by Bank) covering any Collateral is on file in any public filing office.
Debtor authorizes the filing of one or more financing statements covering the Collateral in form
satisfactory to Bank, and without Debtor’s signature, where authorized by law, agrees to
deliver certificates of title on which Bank’s lien has been indicated covering any Collateral
subject to a certificate of title statute, and will pay all costs and expenses of filing or
applying for the same or of filing this Security Agreement in all public filing offices, where
filing is deemed by Bank to be desirable. Debtor hereby constitutes and appoints Bank the true and
lawful attorney of Debtor with full power of substitution to take any and all appropriate action
and to execute any and all documents, instruments or applications that may be necessary or
desirable to accomplish the purpose and carry out the terms of this Security Agreement, including,
without limitation, to complete, execute, and deliver any Control Agreement(s) by Bank, Debtor and
Third Party(ies) that may be or become required in connection herewith (individually and
collectively the “Control Agreement”), and any instructions to Third Party(ies) regarding, among
other things, control and disposition of any Collateral which is the subject of such Control
Agreement(s). The foregoing power of attorney is coupled with an interest and shall be irrevocable
until all of the Obligations have been paid in full. Neither Bank nor anyone acting on its behalf
shall be liable for acts, omissions, errors in judgment, or mistakes in fact in such capacity as
attorney-in-fact. Debtor ratifies all acts of Bank as attorney-in-fact. Debtor agrees to take such
other actions, at Debtor’s expense, as might be requested for the perfection,
continuation and assignment, in whole or in part, of the security interests granted herein and to
assure and preserve Bank’s intended priority position. If certificates, passbooks, or other
documentation or evidence is/are issued or outstanding as to any of the Collateral, Debtor will
cause the security interests of Bank to be properly protected, including perfection by notation
thereon or delivery thereof to Bank.
LANDLORD/MORTGAGEE WAIVERS. Debtor shall cause each mortgagee of real property owned by Debtor and
each landlord of real property leased by Debtor to execute and deliver instruments satisfactory in
form and substance to Bank by which such mortgagee or landlord subordinates its rights, if any, in
the Collateral.
CONTROL. Debtor will cooperate with Bank in obtaining control with respect to Collateral consisting
of electronic chattel paper. Debtor authorizes and directs Third Party to comply with the terms of
this Security Agreement, to enter into a Control Agreement, to xxxx its records to show the.
security interest of and/or the transfer to Bank of the property pledged hereunder.
CHATTEL PAPER, ACCOUNTS, GENERAL INTANGIBLES. Debtor warrants that Collateral consisting of chattel
paper, accounts, or general intangibles is (i) genuine and enforceable in accordance with its
terms; (ii) not subject to any defense, set-off, claim or counterclaim of a material nature against
Debtor except as to which Debtor has notified Bank in writing; and (iii) not subject to any other
circumstances that would impair the validity, enforceability, value, or amount of such Collateral
except as to which Debtor has notified Bank in writing. Debtor shall not amend, modify or
supplement any lease, contract or agreement contained in Collateral or waive any provision therein,
without prior written consent of Bank. Debtor will not create any tangible chattel paper without
placing a legend on the chattel paper acceptable to Bank indicating that Bank has a security
interest in the chattel paper. Debtor will not create any electronic chattel paper without taking
all steps deemed necessary by Bank to confer control of the electronic chattel paper upon Bank in
accordance with the UGC.
ACCOUNT INFORMATION. From time to time, at Bank’s request, Debtor shall provide Bank with schedules
describing all accounts, including customers’ addresses, created or acquired by Debtor and at
Bank’s request shall execute and deliver written assignments of contracts and other documents
evidencing such accounts to Bank. Together with each schedule, Debtor shall, if requested by Bank,
furnish Bank with copies of Debtor’s sales journals, invoices, customer purchase orders or the
equivalent, and original shipping or delivery receipts for all goods sold, and Debtor warrants the
genuineness thereof.
ACCOUNT DEBTORS. If a Default should occur, Bank shall have the right to notify the account debtors
obligated on any or all of the Collateral to make payment thereof directly to Bank and Bank may
take control of all proceeds of any such Collateral, which rights Bank may exercise at any time.
The cost of such collection and enforcement, including attorneys’ fees and expenses, shall be borne
solely by Debtor whether the same is incurred by Bank or Debtor. If a Default should occur or upon
demand of Bank, Debtor will, upon receipt of all checks, drafts, cash and other remittances in
payment on Collateral, deposit the same in a special bank account maintained with Bank, over which
Bank also has the power of withdrawal.
If a Default should occur, no discount, credit, or allowance shall be granted by Debtor to any
account debtor and no return of merchandise shall be accepted by Debtor without Bank’s consent.
Bank may, after Default, settle or adjust disputes and claims directly with account debtors for
amounts and upon terms that Bank considers advisable, and in such cases Bank will credit the
Obligations with the net amounts received by Bank, after deducting all of the expenses incurred by
Bank. Debtor agrees to indemnify and defend Bank and hold it harmless with respect to any claim or
proceeding arising out of any matter related to collection of Collateral.
GOVERNMENT CONTRACTS. If any Collateral covered hereby arises from obligations due to Debtor from
any governmental unit or organization, Debtor shall immediately notify Bank in writing and execute
all documents and take all actions deemed necessary by Bank to ensure recognition by such
governmental unit or organization of the rights of Bank in the Collateral.
INVENTORY. So long as no Default has occurred, Debtor shall have the right in the regular course of
business, to process and sell Debtors inventory. If a Default should occur or upon demand of Bank,
Debtor will, upon receipt of all checks, drafts, cash and other remittances, in payment of
Collateral sold, deposit the same in a special bank account maintained with Bank, over which Bank
also has the power of withdrawal. Debtor agrees to notify Bank immediately in the event that any
inventory purchased by or delivered to Debtor is evidenced by a xxxx of lading, dock warrant, dock
receipt, warehouse receipt or other document of title and to deliver such document to Bank upon
request.
INSTRUMENTS, CHATTEL PAPER, DOCUMENTS. Any Collateral that is, or is evidenced by, instruments,
chattel paper or negotiable documents will be properly assigned to and the originals of any such
Collateral in tangible form deposited with and held by Bank, unless Bank shall hereafter otherwise
direct or consent in writing. Bank may, without notice, before or after maturity of the
Obligations, exercise any or all rights of collection, conversion, or exchange and other similar
rights, privileges and options pertaining to such Collateral, but shall have no duty to do so.
COLLATERAL DUTIES. Bank shall have no custodial or ministerial duties to perform with respect to
Collateral pledged except as set forth herein; and by way of explanation and not by way of
limitation, Bank shall incur no liability for any of the following: (i) loss or depreciation of
Collateral (unless caused by its willful misconduct or gross negligence), (ii) failure to present
any paper for payment or protest, to protest or give notice of nonpayment, or any other notice with
respect to any paper or Collateral.
TRANSFER OF COLLATERAL. Bank may assign its rights in Collateral or any part thereof to any
assignee who shall thereupon become vested with all the powers and rights herein given to Bank with
respect to the property so transferred and delivered, and Bank shall thereafter be forever relieved
and fully discharged from any liability with respect to such property so transferred, but with
respect to any property not so transferred, Bank shall retain all rights and powers hereby given.
INSPECTION, BOOKS AND RECORDS. Debtor will at all times keep accurate and complete records covering
each item of Collateral, including the proceeds therefrom. Bank, or any of its agents, shall have
the right, at intervals to be determined by Bank and without hindrance or
delay, at Debtor’s expense, to inspect, audit, and examine the Collateral during normal business
hours and to make copies of and extracts from the books, records, journals, orders, receipts,
correspondence and other data relating to Collateral, Debtor’s business or any other transaction
between the parties hereto. Debtor will at its expense furnish Bank copies thereof upon request.
For the further security of Bank, it is agreed that Bank has and is hereby granted a security
interest in all books and records of Debtor pertaining to the Collateral.
COMPLIANCE WITH LAW. Debtor will comply with all federal, state and local laws and regulations,
applicable to it, including without limitation, laws and regulations relating to the environment,
labor or economic sanctions, in the creation, use, operation, manufacture and storage of the
Collateral and the conduct of its business.
REGULATION U. None of the proceeds of the credit secured hereby shall be used directly or
indirectly for the purpose of purchasing or carrying any margin stock in violation of any of the
provisions of Regulation U of the Board of Governors of the Federal Reserve System (“Regulation
U”), or for the purpose of reducing or retiring any indebtedness which was originally incurred to
purchase or carry margin stock or for any other purchase which might render the Loan a “Purpose
Credit” within the meaning of Regulation U.
CROSS COLLATERALIZATION LIMITATION. As to any other existing or future consumer purpose loan made
by Bank to Debtor, within the meaning of the Federal Consumer Credit Protection Act, Bank expressly
waives any security interest granted herein in Collateral that Debtor uses as a principal dwelling
and household goods.
ATTORNEYS’ FEES AND OTHER COSTS OF COLLECTION. Debtor shall pay all of Bank’s reasonable expenses
actually incurred in enforcing this Security Agreement and in preserving and liquidating
Collateral, including but not limited to, reasonable arbitration, paralegals’, attorneys’ and
experts’ fees and expenses, whether incurred with or without the commencement of a suit, trial,
arbitration, or administrative proceeding, or in any appellate or bankruptcy proceeding.
DEFAULT. If any of the following occurs, a default (“Default”) under this Security Agreement shall
exist: Loan Document Default. A default under any Loan Document. Collateral Loss or Destruction.
Any loss, theft, substantial damage, or destruction of Collateral not fully covered by insurance,
or as to which insurance proceeds are not remitted to Bank within 30 days of the loss. Collateral
Sale, Lease or Encumbrance. Any sale, lease, or encumbrance of any Collateral not specifically
permitted herein without prior written consent of Bank. Levy, Seizure or Attachment. The making of
any levy, seizure, or attachment on or of Collateral which is not removed within 10 days.
Unauthorized Collection of Collateral. Any attempt to collect, cash in or otherwise recover
deposits that are Collateral. Third Party Breach. Any default or breach by a Third Party of any
provision contained in any Control Agreement executed in connection with any of the Collateral.
Unauthorized Termination. Any attempt to terminate, revoke, rescind, modify, or violate the terms
of this Security Agreement or any Control Agreement without the prior written consent of Bank.
REMEDIES ON DEFAULT (INCLUDING POWER OF SALE). If a Default occurs Bank shall have all the rights
and remedies of a secured party under the Uniform Commercial Code.
Without limitation thereto, Bank shall have the following rights and remedies: (i) to take
immediate possession of Collateral, without notice or resort to legal process, and for such
purpose, to enter upon any premises on which Collateral or any part thereof may be situated and to
remove the same therefrom, or, at its option, to render Collateral unusable or dispose of said
Collateral on Debtor’s premises; (ii) to require Debtor to assemble the Collateral and make it
available to Bank at a place to be designated by Bank; (iii) to exercise its right of set-off or
bank lien as to any monies of Debtor deposited in accounts of any nature maintained by Debtor with
Bank or affiliates of Bank, without advance notice, regardless of whether such accounts are general
or special; (iv) to dispose of Collateral, as a unit or in parcels, separately or with any real
property interests also securing the Obligations, in any county or place to be selected by Bank, at
either private or public sale (at which public sale Bank may be the purchaser) with or without
having the Collateral physically present at said sale.
Any notice of sale, disposition or other action by Bank required by law and sent to Debtor at
Debtor’s address shown above, or at such other address of Debtor as may from time to time be shown
on the records of Bank, at least 5 days prior to such action, shall constitute reasonable notice to
Debtor. Notice shall be deemed given or sent when mailed postage prepaid to Debtor’s address as
provided herein. Bank shall be entitled to apply the proceeds of any sale or other disposition of
the Collateral, and the payments received by Bank with respect to any of the Collateral, to
Obligations in such order and manner as Bank may determine. Collateral that is subject to rapid
declines in value and is customarily sold in recognized markets may be disposed of by Bank in a
recognized market for such collateral without providing notice of sale. Debtor waives any and all
requirements that the Bank sell or dispose of all or any part of the Collateral at any particular
time, regardless of whether Debtor has requested such sale or disposition.
REMEDIES ARE CUMULATIVE. No failure on the part of Bank to exercise, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise by Bank or any right, power or remedy hereunder preclude any other or further
exercise thereof or the exercise of any right, power or remedy. The remedies herein provided are
cumulative and are not exclusive of any remedies provided by law, in equity, or in other Loan
Documents..
INDEMNIFICATION. Debtor shall protect, indemnify and save harmless Bank from and against all
losses, liabilities, obligations, claims, damages, penalties, fines, causes of action, costs and
expenses (including, without limitation, reasonable attorneys’ fees and expenses) (collectively,
“Damages”) imposed upon, incurred by or asserted or assessed against Bank on account of or in
connection with (i) the Loan Documents or any failure or alleged failure of Debtor to comply with
any of the terms of, or the inaccuracy or breach of any representation in, the Loan Documents, (ii)
the Collateral or any claim of loss or damage to the Collateral or any injury or claim of injury
to, or death of, any person or property that may be occasioned by any cause whatsoever pertaining
to the Collateral or the use, occupancy or operation thereof, (iii) any failure or alleged failure
of Debtor to comply with any law, rule or regulation applicable to it or to the Collateral or the
use, occupancy or operation of the Collateral (including, without limitation, the failure to pay
any taxes, fees or other charges), (iv) any Damages whatsoever by reason of any alleged action,
obligation or undertaking of Bank relating in any way to or any matter contemplated by the Loan
Documents, or (v) any claim for brokerage fees or such other commissions relating to the Collateral
or any other Obligations; provided that such indemnity
shall be effective only to the extent of any Damages that may be sustained by Bank in excess of any
net proceeds received by it from any insurance of Debtor (other than self-insurance) with respect
to such Damages. Nothing contained herein shall require Debtor to indemnify Bank for any Damages
resulting from Bank’s gross negligence or its willful misconduct. The indemnity provided for herein
shall survive payment of the Obligations and shall extend to the officers, directors, employees and
duly authorized agents of Bank. In the event Bank incurs any Damages arising out of or in any way
relating to the transaction contemplated by the Loan Documents (including any of the matters
referred to in this section), the amounts of such Damages shall be added to the Obligations, shall
bear interest, to the extent permitted by law, at the interest rate borne by the Obligations from
the date incurred until paid and shall be payable on demand.
MISCELLANEOUS. (i) Amendments and Waivers. No waiver, amendment or modification of any provision of
this Security Agreement shall be valid unless in writing and signed by Debtor and an officer of
Bank. No waiver by Bank of any Default shall operate as a waiver of any other Default or of the
same Default on a future occasion. (ii) Assignment. All rights of Bank hereunder are freely
assignable, in whole or in part, and shall inure to the benefit of and be enforceable by Bank, its
successors, assigns and affiliates. Debtor shall not assign its rights and interest hereunder
without the prior written consent of Bank, and any attempt by Debtor to assign without Bank’s prior
written consent is null and void. Any assignment shall not release Debtor from the Obligations.
This Security Agreement shall be binding upon Debtor, and the heirs, personal representatives,
successors, and assigns of Debtor. (iii) Applicable Law; Conflict Between Documents. This Security
Agreement shall be governed by and construed under the law of the jurisdiction named in the address
of the Bank shown on the first page hereof (the “Jurisdiction”) without regard to that
Jurisdiction’s conflict of laws principles, except to the extent that the UCC requires the
application of the law of a different jurisdiction. If any terms of this Security Agreement
conflict with the terms of any commitment letter or loan proposal, the terms of this Security
Agreement shall control. (iv) Jurisdiction. Debtor irrevocably agrees to non-exclusive personal
jurisdiction in the state identified as the Jurisdiction above. (v) Severability. If any provision
of this Security Agreement shall be prohibited by or invalid under applicable law, such provision
shall be ineffective but only to the extent of such prohibition or invalidity, without invalidating
the remainder of such provision or the remaining provisions of this Security Agreement. (vi)
Notices. Any notices to Debtor shall be sufficiently given, if in writing and mailed or delivered
to the address of Debtor shown above or such other address as provided hereunder; and to Bank, if
in writing and mailed or delivered to Wachovia Bank, National Association, Mail Code VA7628, P. O.
Xxx 00000, Xxxxxxx, XX 00000 or Wachovia Bank, National Association, Mail Code VA7628, 00 Xxxxx
Xxxxxxxxx Xxxxxx, Xxxxxxx, XX 00000 or such other address as Bank may specify in writing from time
to time. Notices to Bank must include the mail code. In the event that Debtor changes Debtor’s
mailing address at any time prior to the date the Obligations are paid in full, Debtor agrees to
promptly give written notice of said change of address by registered or certified mail, return
receipt requested, all charges prepaid. (vii) Captions. The captions contained herein are inserted
for convenience only and shall not affect the meaning or interpretation of this Security Agreement
or any provision hereof. The use of the plural shall also mean the singular, and vice versa. (viii)
Joint and Several Liability. If more than one party has signed this Security Agreement, such
parties are jointly and severally obligated hereunder. (ix) Binding Contract. Debtor by execution
and Bank by acceptance of this Security Agreement, agree that each party is bound by all terms and
provisions of this Security Agreement. FINAL AGREEMENT. This Agreement and the other Loan
Documents represent the final agreement between the parties and may not be contradicted by evidence
of prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral
agreements between the parties.
DEFINITIONS. Loan Documents. The term “Loan Documents” refers to all documents, including this
Agreement, whether now or hereafter existing, executed in connection with or related to the
Obligations, and may include, without limitation and whether executed by Debtor or others,
commitment letters that survive closing, loan agreements, promissory notes, guaranty agreements,
deposit or other similar agreements, other security agreements, letters of credit and applications
for letters of credit, security instruments, financing statements, mortgage instruments, any
renewals or modifications, whenever any of the foregoing are executed, but does not include swap
agreements (as defined in 11 U.S.C. § 101, as in effect from time to time). Third Party. The term
“Third Party” means any Broker, Collateral Agent, Securities Intermediary and/or bank which from
time to time maintains a securities account, and is acting in such capacity, for Debtor or
maintains a deposit account for Debtor with respect to any part of the Collateral. UCC. “UCC” means
the Uniform Commercial Code as presently and hereafter enacted in the Jurisdiction. Terms defined
in the UCC. Any term used in this Agreement and in any financing statement filed in connection
herewith which is defined in the UCC and not otherwise defined in this Agreement or any other Loan
Document has the meaning given to the term in the UCC.
IN WITNESS WHEREOF, Debtor, on the day and year first written above, has caused this Security
Agreement to be executed under seal.
| Gulfstream International Airlines, Inc. | ||||||||
| By: | [signature]
|
(SEAL) | ||||||
| Legal Affairs and Corporate Secretary | ||||||||
Tracking #: 120212rke
CAT — Deal # 712612 Facility ID 509212
CAT — Deal # 712612 Facility ID 509212
CERTIFICATE OF RESOLUTION TO BORROW
The undersigned, individually and/or through their duly authorized officer(s), hereby certify to
Wachovia Bank, National Association (“Bank”) that the undersigned is the Authorized Signer of G-AIR
HOLDINGS CORP. (“Corporation’’), a Corporation duly organized and existing under the laws of the
State of Florida; that the following is a true copy of the Resolution duly adopted by the Board of
Directors; that such Resolution is in full force and effect and has not been amended or rescinded;
and that there is no provision in the Certificate or Articles of Incorporation, Charter or By-laws
of Corporation, limiting the power of the Board of Directors to pass the following Resolution,
which is in full conformity with the provisions of the Certificate or Articles of Incorporation,
Charter or By-laws of Corporation.
RESOLVED, that EACH of the present holder(s) of the following office(s) and/or position(s)
of Corporation and his (her) successor(s) in office or position:
Title Corporate Secretary
is (are) hereby authorized, on behalf of, in the name of and for the account of Corporation
to:
| a. | borrow money and/or obtain or continue credit (with or without security) from Bank, upon such terms and conditions and in such amounts as such officer(s) or position-holder(s) may deem desirable; | ||
| b. | execute and/or endorse all documents necessary or required by Bank to evidence or consummate any loan to Corporation; | ||
| c. | guarantee the obligations of others to Bank; | ||
| d. | engage in business transactions of any nature and kind and/or enter into any manner of contractural relationships with Bank; | ||
| x. | xxxxx a security interest of any kind in, assign, mortgage, or otherwise encumber property, whether real, personal, tangible, intangible and/or mixed (including securities of all types and in whatever form), of Corporation as collateral securing payment or performance relative to any loan to or guaranteed by Corporation; | ||
| f. | sell, purchase and/or lease real, personal, tangible, intangible, and/or mixed property to/from Bank; | ||
| g. | enter into; execute and deliver, and perform Corporation’s obligations under any swap agreement (as defined in 11 USC §101, as in effect from time to time) with Bank, derivative agreement or foreign exchange agreement, and execute any and all documents relative thereto as may be necessary or required by Bank; |
RESOLVED FURTHER, that the foregoing authority shall not be limited to the above-identified
officer(s) or position-holder(s) of Corporation but shall extend to such additional or
different “ -individuals as are named as being so authorized in any letter,
form or other written or oral notice by any such above-identified officer or position-holder
of Corporation;
RESOLVED FURTHER, that the Authorized Signer of Corporation shall furnish Bank a certified
copy of this Resolution, and Bank is hereby authorized to deal with the present holder(s) of
said office(s) or position(s) under the authority of this Resolution unless and until it
shall be expressly notified in writing to the contrary by Corporation;
RESOLVED FURTHER, that the Authorized Signer of Corporation, shall, from time to time
hereafter, as changes in the personnel of the said office(s) or position(s) of Corporation,
are made, immediately certify such changes to Bank, and that Bank shall be fully protected
in relying upon such certifications of the Authorized Signer of Corporation, and shall be
indemnified and saved harmless from any claims, demands, expenses, losses and/or damages
resulting from, or growing out of, honoring the signature of any officer(s) or
position-holder(s), representative(s), agent(s), or employee(s) so certified, or refusing to
honor any signature not so certified which is not described or stated in this Resolution;
RESOLVED FURTHER, that the Authorized Signer of Corporation is (are) authorized and directed
to certify to Bank that this Resolution was duly adopted, and that the provisions thereof
are in full conformity with the Certificates or Articles of Incorporation, Charter or
By-laws of Corporation;
RESOLVED FURTHER, that all transactions by any officer(s), member(s), position-holder(s),
representative(s), agent(s), or employee(s) of Corporation, on its behalf and in its name,
with Bank prior to delivery of a certified copy of this Resolution are, in all respects,
hereby ratified, confirmed and adopted;
RESOLVED FURTHER, that the holder(s) of the above-identified office(s) or position(s) is
(are) expressly authorized to affix the seal, if any, of Corporation on any instrument and
to adopt any facsimile seal for any occasion and purpose on any instrument as the seal, of
Corporation, and that this Resolution supersedes any By-law or other organizational document
of Corporation to the contrary; and
RESOLVED FURTHER, that any person(s) authorized to act on behalf of Corporation pursuant to
the terms of this Resolution is (are) fully authorized to take any action or exercise any
powers as set out or granted by those terms in relation to any subsidiary, parent or
affiliate of Corporation.
I, finally, certify that the following is (are) the person(s) who now hold(s) the office(s) and/or
position(s) referred to above in this Resolution and that his (her) bona fide signature(s) is (are)
set forth below:
| [signature]
|
||||
| Title: Corporate Secretary |
IN WITNESS WHEREOF, I have hereunto subscribed my name(s) and affixed the seal, if any, of
Corporation on August 9, 2006.
CORPORATE SEAL |
By: | [signature]
|
Authorized Signer | |||||
| [printed name] | ||||||||
| (Printed Name) |
Tracking #: 120212rke
CAT — Deal # 712612 Facility ID 509212
CAT — Deal # 712612 Facility ID 509212
CERTIFICATE OF RESOLUTION TO BORROW
The undersigned, individually and/or through their duly authorized officer(s), hereby certify to
Wachovia Bank, National Association (“Bank”) that the undersigned is the Authorized Signer of
GULFSTREAM INTERNATIONAL AIRLINES, INC. (“Corporation”), a Corporation duly organized and existing
under the laws of the State of Florida; that the following is a true copy of the Resolution duly
adopted by the Board of Directors; that such Resolution is in full force and effect and has not
been amended or rescinded; and that there is no provision in the Certificate or Articles of
Incorporation, Charter or By-laws of Corporation, limiting the power of the Board of Directors to
pass the following Resolution, which is in full conformity with the provisions of the Certificate
or Articles of Incorporation, Charter or By-laws of Corporation.
RESOLVED, that EACH of the present holder(s) of the following office(s) and/or position(s)
of Corporation and his (her) successor(s) in office or position:
Senior Vice President of Legal Affairs and Corporate Secretary
is (are) hereby authorized, on behalf of, in the name of and for the account of Corporation
to:
| a. | borrow money and/or obtain or continue credit (with or without security) from Bank, upon such terms and conditions and in such amounts as such officer(s) or position-holder(s) may deem desirable; | ||
| b. | execute and/or endorse all documents necessary or required by Bank to evidence or consummate any loan to Corporation: | ||
| c. | guarantee the obligations of others to Bank; | ||
| d. | engage in business transactions of any nature and kind and/or enter into any manner of contractual relationships with Bank; | ||
| x. | xxxxx a security interest of any kind in, assign, mortgage, or otherwise encumber property, whether real, personal, tangible, intangible and/or mixed (including securities of all types and in whatever form), of Corporation as collateral securing payment or performance relative to any loan to or guaranteed by Corporation; | ||
| f. | sell, purchase and/or lease, real, personal, tangible, intangible, and/or mixed property to/from Bank; | ||
| g. | enter into, execute and deliver, and perform Corporation’s obligations under any swap agreement (as defined in 11 USC §101, as in effect from time to time) with Bank, derivative agreement or foreign exchange agreement, and execute any and all documents relative thereto as may be necessary or required by Bank; |
RESOLVED FURTHER, that the foregoing authority shall not be limited to the above-identified
officer(s) or position-holder(s) of Corporation but shall extend to such additional or
different individuals as are named as being so authorized in any letter, form
or other written or oral notice by any such above-identified officer or position-holder of
Corporation;
RESOLVED FURTHER, that the Authorized Signer of Corporation shall furnish Bank a certified
copy of this Resolution, and Bank is hereby authorized to deal with the present holder(s) of
said office(s) or position(s) under the authority of this Resolution unless and until it
shall be expressly notified in writing to the contrary by Corporation:
RESOLVED FURTHER, that the Authorized Signer of Corporation, shall, from time to time
hereafter, as changes in the personnel of the said office(s) or position(s) of Corporation,
are made, immediately certify such changes to Bank, and that Bank shall be fully protected
in relying upon such certifications of the Authorized Signer of Corporation, and shall be
indemnified and saved harmless from any claims, demands, expenses, losses and/or damages
resulting from, or growing out of, honoring the signature of any officer(s) or
position-holder(s), representative(s), agent(s), or employee(s) so certified, or refusing to
honor any signature not so certified which is not described or stated in this Resolution;
RESOLVED FURTHER, that the Authorized Signer of Corporation is (are) authorized and directed
to certify to Bank that this Resolution was duly adopted, and that the provisions thereof
are in full conformity with the Certificates or Articles of Incorporation, Charter or
By-laws of Corporation;
RESOLVED FURTHER, that all transactions by any officer(s), member(s), position-holder(s),
representative(s), agent(s), or employee(s) of Corporation, on its behalf and in its name,
with Bank prior to delivery of a certified copy of this Resolution are, in all respects,
hereby ratified, confirmed and adopted;
RESOLVED FURTHER, that the holder(s) of the above-identified office(s) or position(s) is
(are) expressly authorized to affix the seal, if any, of Corporation on any instrument and
to adopt any facsimile seal for any occasion and purpose on any instrument as the seal, of
Corporation, and that this Resolution supersedes any By-law or other organizational document
of Corporation to the contrary; and
RESOLVED FURTHER, that any person(s) authorized to act on behalf of Corporation pursuant to
the terms of this Resolution is (are) fully authorized to take any action or exercise any
powers as set out or granted by those terms in relation to any subsidiary, parent or
affiliate of Corporation.
I, finally, certify that the following is (are) the person(s) who now hold(s) the office(s) and/or
position(s) referred to above in this Resolution and that his (her) bona fide signature(s) is (are)
set forth below:
| [signature]
|
Senior Vice President of Legal Affairs and Corporate Secretary |
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IN WITNESS WHEREOF, I have hereunto subscribed my name(s) and affixed the seal, if any, of
Corporation on August 15, 2006.
CORPORATE SEAL |
By: | [signature]
|
Authorized Signer | |||||
| [printed name] | ||||||||
| (Printed Name) |
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