AGREEMENT OF GUARANTY AND SURETYSHIP
(PAYMENT)
MADE as of the 30th day of November, 1995, by TRANS CONTINENTAL
AIRLINES, INC., a ___________________________ corporation, ("Guarantor"), to
and for the benefit SENSTAR CAPITAL CORPORATION, a Delaware corporation
("Lender").
WITNESSETH:
WHEREAS, as more fully provided in that certain Credit Agreement (the
"Credit Agreement") of even date herewith between Lender and Airship
International, LTD. (the "Borrower"), Lender has agreed to make a term loan in
the original principal amount of $3,500,000 (the "Term Loan");
WHEREAS, the proceeds of the Term Loan are being advanced to the
Borrower to enable the Borrower to, among other things, acquire a certain
Series 500HP Skyship, Registration No. N501LP ("Skyship") from Trans
Continental Leasing, Inc., a wholly owned subsidiary of Guarantor ("Trans
Continental Leasing");
WHEREAS, Guarantor will benefit from Lender making the Term Loan and
Borrower purchasing the Skyship from Trans Continental Leasing.
NOW, THEREFORE, to induce Lender to make the Term Loan and for other
good and valuable consideration, receipt of which is hereby acknowledged, and
intending to be legally bound, Guarantor hereby covenants and agrees as
follows:
1. Defined Terms. Capitalized terms used, but not defined, herein shall
have the meaning ascribed to such terms under the Credit Agreement.
2. Guaranteed Obligations. Guarantor unconditionally guarantees and
becomes surety for the full and timely payment, whether by declaration,
acceleration or otherwise, by Borrower of all the following (hereinafter
collectively referred to as the "Obligations"):
(i) all obligations, now outstanding or hereafter
arising, of Borrower to Lender, including without limitation, those obligations
evidenced by the Term Note and those arising under the Credit Agreement, as the
same may be amended, supplemented, renewed or replaced from time, and
(ii) all sums now or hereafter to be paid by Borrower
under all other agreements, instruments and documents given to Lender to
evidence, secure or otherwise support the Borrower's obligations under the
Credit Agreement (all such agreements, instruments and documents, including the
Credit Agreement, as the same may be amended, supplemented, renewed or replaced
from time to time being hereinafter referred to as the "Loan Documents").
EXHIBIT "B" TO CREDIT AGREEMENT
NOT FOR EXECUTION
3. Unconditional Guaranty and Suretyship. Guarantor agrees to pay the
Obligations immediately when due, irrespective of whether or not any one or
more of the following events have occurred: (i) Lender has made any demand on
Borrower; (ii) Lender has taken any action of any nature against Borrower;
(iii) Lender has pursued any rights which Lender has against any other person
who may be liable for any of the Obligations; (iv) Lender holds or has resorted
to any security for any of the Obligations; or (v) Lender has invoked any other
remedies or rights Lender has available with respect to any of the Obligations.
The liability of Guarantor as surety and Guarantor is unconditional. Guarantor
therefore agrees to pay the Obligations even if any of the Loan Documents, or
any part thereof, are for any reason invalid or unenforceable. Guarantor
further agrees to make full payment to Lender even if circumstances exist which
otherwise constitute a legal or equitable discharge of Guarantor as surety or
guarantor.
4. Subrogation; Marshalling; Subordination. Guarantor waives and agrees
not to enforce any of the rights of Guarantor against Borrower unless and until
Borrower is no longer liable in any respect to Lender, including, but not
limited to: (i) any right of Guarantor to be subrogated in whole or in part to
any right or claim with respect to any of the Obligations or any portion
thereof to Lender which might otherwise arise from partial payment or
performance by Guarantor to Lender on account of the Obligations or any portion
thereof; and (ii) any right of Guarantor to require the marshalling of assets
of Borrower which might otherwise arise from partial payment or performance by
Guarantor to Lender on account of the Obligations or any portion thereof
Guarantor agrees that (i) all of the obligations of Borrower to Guarantor,
whether now existing or hereafter arising, are subordinated to the prior
payment in full of all of the Obligations and (ii) it will not, without the
prior written consent of Lender, enforce any right or remedy it may have to
collect any of the obligations of Borrower to Guarantor.
5. Waiver of Notice. Guarantor waives any and all notice with respect
to: (i) acceptance by Lender of this Agreement or any of the Loan Documents;
and (ii) the provisions of any of the Loan Documents or any other instrument or
agreement relating to the Obligations; and (iii) any default in connection with
the Obligations.
6. Waiver of Presentment, etc. Guarantor waives any presentment, demand,
notice of dishonor or nonpayment, protest, notice of protest and notice of
non-payment in connection with the Obligations.
7. Waiver of Guarantor Defenses. Guarantor agrees that Lender may do any
of the following without notice to Guarantor and without adversely affecting
the validity or enforceability of this Agreement or any other agreement,
document or instrument given by Guarantor to Lender in connection with this
Agreement or the Obligations: (i) release, surrender, exchange, compromise or
settle the Obligations, or any part thereof; (ii) change, renew or waive the
terms of the Obligations, or any part thereof; (iii) change, renew or waive the
terms of any of the Loan Documents or any other note, instrument or agreement
relating to the Obligations, such rights in Lender to include without
limitation the right to change the rate of interest charged to Borrower (in
which event the Obligations shall be deemed also to include all interest at
such changed rate);
2
(iv) grant any extension or indulgence with respect to the payment or
performance of the Obligations or any part thereof; (v) enter into any
agreement of forbearance with respect to the Obligations, or any part thereof;
(vi) release, surrender, exchange or compromise any security held by Lender for
any of the Obligations; (vii) release any person who is a Guarantor or surety
or who has agreed to purchase the Obligations or any part thereof; and (viii)
release, surrender, exchange or compromise any security or lien held by Lender
for the liabilities of any person who is guarantor or surety for the
Obligations or any part thereof agrees that Lender may do any of the above as
Lender deems necessary or advisable, in Lender's sole discretion, without
giving any notice to Guarantor, and that Guarantor will remain liable for full
payment and performance of the Obligations. If at any time all or any part of
any payment theretofore applied by Lender to any of the liabilities is or must
be rescinded or returned by Lender for any reason whatsoever (including,
without limitation, the insolvency, bankruptcy or reorganization of Borrower),
such liability shall, for the purposes of this Agreement, to the extent that
such payment is or must be rescinded or returned, be deemed to have continued
in existence, notwithstanding such application by Lender, and this Agreement
shall continue to be effective or be reinstated, as the case may be, as to such
liabilities, all as though such application by Lender had not been made.
8. Representations and Warranties. The Guarantor represents and warrants
to the Lender that (which representations and warranties shall continue to be
true and correct until the Obligations are paid in full, except for
representations which expressly relate to an earlier date in time):
(a) Organization and Qualification. The Guarantor is a
corporation duly organized, validly existing and in good standing under the
laws of the State of ______________; has the lawful power to own or lease its
properties and to engage in the business it presently conducts and contemplates
conducting; and is duly licensed or qualified and in good standing as a foreign
corporation in each jurisdiction wherein the property owned or leased by it or
the nature of the business transacted by it or both makes such licensing or
qualification necessary.
(b) Power and Authority. The Guarantor has the power to make and
carry out this Guaranty, to execute and deliver this Guaranty, and to perform
its obligations under this Guaranty and all such actions have been duly
authorized by all necessary corporate proceedings.
(c) Validity and Binding Effect. This Guaranty has been duly and
validly executed and delivered by the Guarantor. This Guaranty constitutes a
legal, valid and binding obligation of the Guarantor, enforceable in accordance
with its respective terms, except to the extent that enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforceability of creditors' rights generally or by laws or
judicial decisions limiting the right of specific performance. No
authorization, approval, exemption or consent by any governmental or public
body or authority is required in connection with the authorization, execution,
delivery and carrying out of the terms of this Guaranty by the Guarantor.
3
(d) No Conflict. Neither the execution and delivery of this
Guaranty nor the consummation of the transactions herein contemplated or
compliance with the terms and provisions hereof will conflict with or result in
any breach of the terms and conditions of the articles of incorporation or
bylaws of the Guarantor or of any law or regulation or any order, writ,
injunction or decree of any court or governmental instrumentality or of any
agreement or instrument to which the Guarantor is a party or by which the
Guarantor is bound or to which it is subject, will constitute a default
thereunder or will result in the creation or enforcement of any lien, charge or
encumbrance whatsoever upon any property (now or hereafter acquired) of the
Guarantor.
(e) Litigation. There are no actions, suits, proceedings or
investigations pending or, to the knowledge of the Guarantor or its officers,
against it at law or equity before any court or before any federal, state,
municipal or any governmental department, commission, board, agency or
instrumentality whether or not covered by insurance which individually or in
the aggregate may result in any materially adverse effect on the business,
properties or assets or the condition, financial or otherwise, of the Guarantor
or in any impairment in the Guarantor's ability to perform its obligations
under this Guaranty. Neither the Guarantor nor any of its officers has
knowledge of any default with respect to any order, writ, injunction or any
decree of any court or any federal, state, municipal or other governmental
department, commission or bureau, agency or instrumentality which may result in
any such materially adverse effect or impairment.
(f) Audited Financial Condition. The Guarantor has heretofore
delivered to the Lender copies of the balance sheet of the Guarantor as of
April 30, 1995 and the statements of income, retained earnings and changes in
financial position of the Guarantor for the fiscal year ended on such date,
which have been certified by Xxxxx & Xxxxxx, independent certified public
accountants. Such financial statements (including the related notes) are
correct and complete and fairly present the financial condition of the
Guarantor as of April 30, 1995 and the results of its operations for the fiscal
year then ended and have been prepared in accordance with generally accepted
accounting principles consistently applied by the Guarantor; there were no
material liabilities as of April 30, 1995, contingent or otherwise, of the
Guarantor not reflected in said balance sheet (including the related notes) as
of said date.
(g) Changes in Financial Condition. Since April 30, 1995, the
date of the last audited balance sheet of the Guarantor delivered to the
Lender, there has been no Material Adverse Change in the business, assets,
liabilities, contingent or otherwise, or financial condition of the Guarantor
from those set forth in said balance sheet (including the related notes) as of
that date.
(h) Tax Returns and Taxes. The Guarantor has filed all federal,
state and local tax returns and other reports it was required by law to file
prior to the date hereof and which were material to the conduct its respective
businesses, has paid or caused to be paid all taxes, assessments and other
governmental charges that were due and payable prior to the date hereof, and
has made adequate provision in its financial statements for the payment of such
taxes,
4
assessments and other charges accruing but not yet payable; the Guarantor has
no knowledge of any deficiency or additional assessment in a materially
important amount in connection with any taxes, assessments or charges which is
not provided for on its books.
(i) Compliance with Laws. The Guarantor has complied with all
applicable laws such that it has not been subject to any fines, penalties,
injunctive relief or similar criminal liabilities which in the aggregate have
materially affected the business operations or financial condition of the
Guarantor or the ability of the Guarantor to perform its obligations under this
Guaranty.
(j) Plans and Benefit Arrangements.
(i) The Guarantor and each member of the ERISA Group are
in compliance in all material respects with any applicable provisions of ERISA
with respect to all Benefit Arrangements, Plans and Multiemployer Plans. There
have been no COBRA Violations by the Guarantor which could result in any
material liability to the Guarantor. There has been no Prohibited Transaction
with respect to any Benefit Arrangement or any Plan or, to the best knowledge
of the Guarantor, with respect to any Multiemployer Plan or Multiple Employer
Plan, which could result in any material liability to the Guarantor or any
other member of the ERISA Group. The Guarantor and all members of the ERISA
Group have made when due any and all payments required to be made under any
agreement relating to a Multiemployer Plan or a Multiple Employer Plan or any
law pertaining thereto. With respect to each Plan, Multiemployer Plan, and
Benefit Arrangement that is a defined contribution plan, the Guarantor and each
member of the ERISA Group (A) have fulfilled in all material respects their
obligations under the minimum funding standards of ERISA, if applicable, or
contractual obligations to contribute to such plans, (B) have not incurred any
liability to the PBGC and (C) have not had asserted against them any penalty
for failure to fulfill the minimum funding requirements of ERISA.
(k) Environmental Matters.
(i) The operations of the Guarantor comply with all of
the Environmental Laws;
(ii) There have been no Regulated Substances disposed of
on any of the properties owned or leased by the Guarantor;
(iii) There are no Environmental Conditions present on
any of the properties owned or leased by the Guarantor;
(iv) The Guarantor has received no notice from a
Governmental Authority that it is, or is considered potentially, liable for
any Environmental Conditions;
5
(v) There are no underground storage tanks, asbestos or
equipment containing polychlorinated biphenyls on the property owned or leased
by the Guarantor other than those present and utilized in compliance with all
of the Environmental Laws; and
(vi) The Guarantor does not manufacture, store, use,
generate, treat, dispose or manage any Regulated Substances except in
compliance with all of the Environmental Laws.
(l) Ownership of Guarantor. All of the issued and outstanding
capital stock of the Guarantor is owned as follows: ________________________.
(m) Participations as General Partner. The Guarantor is
currently the general partner of _________ limited partnerships and all
borrowings under each limited partnership are non-recourse to the assets of
Guarantor; and none of Guarantor's rights under any limited partnership, in
which it is the general partner, has been pledged, assigned or encumbered in
any fashion.
(n) Line of Credit. The Guarantor has an available credit line
of $10,000,000 and no borrowings are outstanding under such line of credit at
this time.
(o) Accounting Matters. All of Guarantor's financial books and
records reflect (i) assets, liabilities, revenues and expenses associated with
its interests in limited partnerships in an amount corresponding to the
Guarantor's proportional interest in each limited partnership and (ii) the net
asset value maintained by Guarantor for each limited partnership interest is
restated (i.e. reduced) from time to time to the extent that any annual
appraisal of the equipment owned by such partnership reflects a net asset value
of such equipment 15% or more below the net asset value that such equipment is
maintained on the books and records of the limited partnership.
(p) General Validity. No representation or warranty by the
Guarantor contained herein or in any other Loan Document contains or will
contain any untrue statement of material fact or omits or will omit to state a
material fact necessary to make such representation or warranty not misleading
in light of the circumstances under which it was made.
9. Affirmation Covenants. The Guarantor covenants that, until payment in
full of the Obligations, it will, unless otherwise consented to in writing by
the Lender:
(a) Preservation of Corporate Existence, etc. Maintain its
corporate existence and its license or qualification and good standing in each
jurisdiction in which its ownership or lease of property or the nature of its
business makes such license or qualification necessary, and maintain and keep
all its property in good repair, working order and condition, ordinary wear
and tear alone excepted, and make or cause to be made all necessary or
appropriate repairs, renewals, replacements, substitutions, additions,
betterments and improvements thereto so that the efficiency and suitability
for their use or intended uses within the business of all such properties
shall at all times be properly preserved and maintained;
6
(b) Payment of Liabilities, Including Taxes, etc. Duly pay and
discharge all Indebtedness to which it is subject or which is asserted against
it, promptly as and when the same shall become due and payable, including all
taxes, assessments and governmental charges upon it or any of its properties,
assets, income or profits, prior to the date on which penalties attach thereto,
except to the extent that such Indebtedness, including taxes, assessments or
charges, is being contested in good faith and by appropriate proceedings
diligently conducted and for which such reserve or other appropriate
provisions, if any, as shall be required by generally accepted accounting
principles shall have been made, but only to the extent that failure to
discharge any such Indebtedness would not result in any liability which would
adversely affect to a material extent the financial condition of the Guarantor;
(c) Maintenance of Insurance. Maintain, at its own expense,
insurance in an amount and of a type standard in the industry with insurers and
reinsurers of recognized reputation and responsibility, all of which shall be
satisfactory to Lender;
(d) Visitation Rights. Permit any of the officers or authorized
employees or representatives of the Lender to visit and inspect any of its
properties and to examine and make excerpts from its books and records and
discuss its affairs, finances and accounts with its officers, all at such
reasonable times and as often as the Lender may reasonably request;
(e) Keeping of Records and Books of Account. Maintain and keep
proper books of record and account in accordance with generally accepted
accounting practices applied on a consistent basis and in which full, true and
correct entries shall be made of all its dealings and business and financial
affairs;
(f) Maintenance of Limited Partnership Interests, Trademarks,
etc. Maintain in full force and effect all limited partnership interests held
by Guarantor and all patents, trademarks, trade names, copyrights, licenses,
franchises, permits and other authorizations necessary for the ownership and
operation of its properties and business if the failure so to maintain the same
would substantially interfere with the normal operations of the Guarantor or
adversely affect to a material extent the financial condition, business or
operations of the Guarantor;
(g) Plans and Benefit Arrangements. Comply, and cause each
member of the ERISA Group to comply, with ERISA, the Internal Revenue Code and
other applicable laws applicable to Plans and Benefit Arrangements except where
such failure, alone or in conjunction with any other failure, would not result
in a Material Adverse Change;
(h) Compliance with Laws. Comply with all applicable laws in all
respects provided that the Guarantor shall not be deemed to be in violation of
this subsection (i) as the result of any failure to comply which would not
result in fines, penalties, injunctive relief or other similar criminal
liabilities which in the aggregate materially affect the business operations or
financial condition of the Guarantor or the ability of the Guarantor to perform
its obligations under this Guaranty; and
7
(i) Liquidation, Merger, etc. Neither (i) Liquidate, merge or
consolidate with or into any other person or take any action in furtherance of
any thereof; (ii) permit any other person to consolidate with or merge into it,
nor (iii) sale, assign or dispose of substantially all of its assets in one or
a series transactions.
10. Financial Reporting Covenants. The Guarantor covenants that, until
payment in full of the Obligations, it will furnish to the Lender:
(a) Quarter-Fiscal Year Financial Statements. Within 60 days
after the close of each of the first three quarter-fiscal year periods of each
fiscal year of the Guarantor, unaudited statements of income, retained earnings
and changes in financial position of the Guarantor for such quarter-fiscal year
period, and an unaudited balance sheet of the Guarantor as of the close of such
quarter-fiscal year period, all in reasonable detail and certified by the chief
accounting officer the Guarantor, subject to year-end audit adjustments, as
having been prepared in accordance with generally accepted accounting
principles consistent with those applied in the preparation of the annual
financial statements last furnished under Lender.
(b) Annual Financial Statements. Within 120 days after the close
of each fiscal year of the Guarantor, statements of income, retained earnings
and changes in financial position of the Guarantor for such fiscal year and a
balance sheet of the Guarantor as of the close of such fiscal year, all in
reasonable detail, such financial statements to be certified by independent
certified public accountants of recognized standing selected by the Guarantor
and satisfactory to the Lender, whose certificate or opinion accompanying such
financial statements shall not contain any material qualification or exception
not satisfactory to the Lender.
(c) Other Information. Such other information respecting the
business, properties or condition of operations, financial or otherwise, of the
Guarantor as the Lender may from time to time reasonably request.[qp]
11. Set-Off. Guarantor, as security for the Obligations and for the
obligations of the Guarantor hereunder, pledges to Lender, and grants to Lender
a security interest in and a right of act-off against, all moneys, deposits and
other property of any kind owned by Guarantor or in which Guarantor has an
interest and which are or shall be in the possession or control of Lender at
any time for any reason whatsoever.
12. Waivers by Lender. Guarantor agrees that no failure on the part of
Lender to exercise any of its rights under this Agreement shall be a waiver of
such rights or a waiver of any default by Guarantor. Guarantor further agrees
that no waiver or modification of any rights of Lender under this Agreement
shall be effective unless in writing and signed by an authorized officer of
Lender. Guarantor further agrees that each written waiver shall extend only to
the specific instance actually recited in such written waiver and shall not
impair the rights of Lender in any other respect.
8
13. Costs and Expenses. Guarantor agrees to pay all costs and expenses,
including reasonable attorney's fees, incurred by Lender in enforcing this
Agreement against Guarantor. Guarantor further agrees to pay all costs and
expenses, including attorney's fees, incurred by Lender in collecting or
enforcing or attempting to collect or enforce the Obligations.
14. Successors and Assigns. Guarantor agrees that this Agreement shall
be binding upon Guarantor, and Guarantor's respective successors or assigns.
Guarantor further agrees that this Agreement shall inure to the benefit of
Lender, its successors and assigns.
15. Governing Law. Guarantor agrees that this Agreement shall be
governed by and construed in accordance with the laws of the Commonwealth of
Pennsylvania, without regard to its principles of conflict of laws.
16. Sealed Instrument. Guarantor recognizes that this Agreement when
executed constitutes a sealed instrument and as a result the instrument will be
enforceable as such without regard to any statute of limitations which might
otherwise be applicable and without any consideration.
17. Counterpart. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which together
shall constitute but one and the same instrument.
18. Jurisdiction. The Guarantor agrees that any action or proceeding
arising out of or relating to this Guaranty may be commenced in-any state or
Federal court of competent jurisdiction in the Commonwealth of Pennsylvania and
the Guarantor submits to the personal jurisdiction of such court and agrees
that a confession of judgment, summons or complaint commencing in action or
proceeding in any such court shall be properly served and shall confer personal
jurisdiction if personally served or by certified mail to it at its address
designated beneath its signature hereto, or as otherwise provided under the
laws of the Commonwealth of Pennsylvania.
19. Section Headings. The underlined section headings are for
convenience of reference only and shall not in any way affect the
interpretation or construction hereof.
20. Confession of Judgment. GUARANTOR HEREBY EMPOWERS ANY ATTORNEY OF
ANY COURT OF RECORD WITHIN THE COMMONWEALTH OF PENNSYLVANIA, TO APPEAR FOR
GUARANTOR AND, WITH OR WITHOUT A COMPLAINT OR DECLARATION FILED, CONFESS A
JUDGMENT OR JUDGMENTS AGAINST GUARANTOR IN ANY COURT OF RECORD WITHIN THE
COMMONWEALTH OF PENNSYLVANIA, AT ANY TIME AFTER THE OCCURRENCE OF AN EVENT OF
DEFAULT UNDER THE REIMBURSEMENT DOCUMENTS, IN FAVOR OF LENDER OR ITS SUCCESSORS
OR ASSIGNS FOR THE UNPAID PRINCIPAL BALANCE OF THE OBLIGATIONS, AND ALL
INTEREST THEREON, TOGETHER WITH COSTS OF SUIT AND AN ATTORNEY'S COMMISSION OF
20% FOR COLLECTION. THE AUTHORITY AND POWER TO APPEAR FOR AND ENTER JUDGMENT
AGAINST GUARANTOR
9
SHALL NOT BE EXHAUSTED BY ONE OR MORE EXERCISES THEREOF, AND MAY BE EXERCISED
FROM TIME TO TIME AND AS OFTEN AS LENDER OR ITS SUCCESSORS OR ASSIGNS SHALL
DEEM NECESSARY OR DESIRABLE. THE VALIDITY OF ANY JUDGMENT ENTERED UNDER THE
AUTHORITY OF THIS WARRANT SHALL NOT BE ADVERSELY AFFECTED BY THE OCCURRENCE
OF ANY OF THE EVENTS DESCRIBED IN PARAGRAPH 7 OF THIS AGREEMENT AND ANY SUCH
JUDGMENT SHALL BE FULLY ENFORCEABLE UP TO THE AMOUNT OF THE OBLIGATIONS AT THE
TIME ENFORCEMENT OF THE JUDGMENT IS SOUGHT, PLUS AN ATTORNEY'S COMMISSION OF
20% FOR COLLECTION, EVEN THOUGH ANY OF THE EVENTS DESCRIBED IN PARAGRAPH 7 HAVE
OCCURRED. GUARANTOR HEREBY FOREVER WAIVES AND RELEASES ANY AND ALL ERRORS IN
SAID PROCEEDINGS, WAIVES STAY OF EXECUTION, STAY, CONTINUANCE OR ADJOURNMENT OF
SALE ON EXECUTION, THE RIGHT TO PETITION TO SET ASIDE OR ORDER A RESALE, THE
RIGHT TO EXCEPT TO THE SHERIFF'S SCHEDULE OF PROPOSED DISTRIBUTION, THE RIGHT
OF INQUISITION AND EXTENSION OF TIME OF PAYMENT, AND AGREES TO CONDEMNATION OF
ANY PROPERTY LEVIED UPON BY VIRTUE OF ANY EXECUTION ISSUED ON ANY SUCH
JUDGMENT, AND GUARANTOR SPECIFICALLY WAIVES ALL EXEMPTIONS FROM LEVY AND SALE
OF ANY PROPERTY THAT NOW IS OR MAY HEREAFTER BE EXEMPT UNDER ANY EXISTING OR
FUTURE LAWS OF THE UNITED STATES OF AMERICA OR THE COMMONWEALTH OF PENNSYLVANIA
OR OF ANY OTHER JURISDICTION.
21. Severability. In the event that any one or more of the provisions
contained in this Agreement shall for any reason be held to be invalid, illegal
or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement, and
this Agreement shall be construed as if such invalid, illegal or unenforceable
provision had never been contained herein.
22. Waiver of Jury Trial. GUARANTOR WAIVES THE RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING BASED UPON OR RELATED TO THE SUBJECT MATTER OF THIS
AGREEMENT OR ANY OF THE OTHER REIMBURSEMENT DOCUMENTS OR ANY OF THE
TRANSACTIONS RELATED TO ANY OF THE REIMBURSEMENT DOCUMENTS. THIS WAIVER IS
KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY GUARANTOR AND GUARANTOR
ACKNOWLEDGES THAT NEITHER LENDER NOR ANY PERSON ACTING ON BEHALF OF LENDER HAS
OR HAVE MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY
OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. GUARANTOR FURTHER ACKNOWLEDGES
THAT GUARANTOR HAS BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE
REPRESENTED) IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF THIS WAIVER
BY INDEPENDENT LEGAL COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT GUARANTOR
HAVE HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL.
10
IN WITNESS WHEREOF, Guarantor, intending to be legally bound, has
executed this Agreement as of the 30th day of November, 1995.
ATTEST: TRANS CONTINENTAL AIRLINES, INC.
___________________ By: /s/ XXXXX X. XXXXXXXX
___________________ ______________________
[SEAL] Title: President
______________________
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
11
