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EXHIBIT 10.21
THIS INSTRUMENT PREPARED BY:
XXXXXX X. XXXXX, ESQUIRE
AKERMAN, SENTERFITT & XXXXXX, P.A.
XXXX XXXXXX XXX 000
XXXXXXX, XXXXXXX 00000-0000
Return to:
Xxxxx X. Fides, II, Esquire
Greenberg, Traurig, Hoffman, Lipoff,
Xxxxx & Xxxxxxx, P.A.
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
LEASEHOLD MORTGAGE AND SECURITY AGREEMENT
THIS LEASEHOLD MORTGAGE AND SECURITY AGREEMENT (the "Mortgage" or the
"Leasehold Mortgage") executed and delivered as of the 7th day of March, 1996,
by:
AIRTRAN AIRWAYS, INC., a Delaware corporation, 0000 Xxxxxxxxx Xxxxxxxx
Xxxxx, Xxxxxxx, Xxxxxxx 00000 (hereinafter referred to as the
"Mortgagor"),
to
SUNTRUST BANK, CENTRAL FLORIDA, NATIONAL ASSOCIATION, a national banking
association, 000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000
(hereinafter referred to as the "Mortgagee");
W I T N E S S E T H:
That in consideration of the premises and in order to secure
(collectively, the "Obligations"):
A. The payment of:
(i) The principal, interest and any other sums
whatsoever payable at any time on that certain Term Note dated
of even date herewith from the Mortgagor and Airways
Corporation, a Delaware corporation (hereinafter individually,
the "Borrower" and collectively, the "Borrowers") to the
Mortgagee in the face amount of $2,000,000.00, as said note
may be amended, changed, modified, renewed or substituted for
from time to time (the "Note"),
This Leasehold Mortgage Deed and Security Agreement is exempt from the
incurrence of intangible tax because it is a leasehold mortgage and not
a fee mortgage.
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(ii) All of the other obligations due the Mortgagee
under this Leasehold Mortgage,
(iii) All of the obligations due the Mortgagee under
that certain Security Agreement from the Mortgagor to the
Mortgagee of even date herewith (the "Security Agreement"),
(iv) All other obligations due the Mortgagee under
any other document or agreement executed in connection with
the Note or the loan evidenced thereby and secured hereby (the
"Loan Documents"); and
B. The performance and observance of:
(i) All the provisions of this Leasehold Mortgage,
(ii) All the provisions of the Note,
(iii) All the provisions of the Security Agreement
and each other Loan Document, and
the Mortgagor hereby grants, sells, warrants, conveys, assigns, transfers,
mortgages and sets over and confirms unto the Mortgagee, all of the Mortgagor's
estate, right, title and interest in and to:
A. The Mortgagor's leasehold estate (the "Leasehold Interest") in the
real property (the "Real Property") situate in Orange County, Florida, and more
particularly described on Exhibit "A" attached hereto pursuant to and by virtue
of that certain Orlando Tradeport Maintenance Hangar Lease Agreement dated
December 11, 1989 by and between the Greater Orlando Aviation Authority ("GOAA")
and Page Avjet Corporation ("PAC"), as amended by Amendment No. 1 dated June 22,
1990 by and between GOAA and PAC and as assigned to Owner by instrument dated
February 29, 1996 by and among Owner, PAC and Page Avjet Holding Corporation,
and as amended by Agreement and Second Amendment dated January 25, 1996 by and
between GOAA and Owner (collectively, the "Lease")
B. TOGETHER WITH the following (collectively, the "Additional
Property")
(i) The Mortgagor's leasehold interest in all buildings,
structures and improvements now or
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hereafter located on said Real Property and all fixtures, equipment
(excluding aircraft), machinery, electrical and plumbing fixtures and
lines, air conditioning and heating equipment, now or hereafter located
and situate therein and leased to the Mortgagor by virtue of the Lease,
and any replacements thereof; and
(ii) All furnishings, furniture, goods, machinery, apparatus,
equipment, fittings, dies, motors, parts (including spare parts and
repair parts) and tools, together with all fittings, accessories,
accessions, additions, modifications, improvements, equipment and
special tools now or hereafter affixed to any or any part of the
foregoing or used in connection with any part of the foregoing and all
replacements of any part thereof, and any tangible personal property
(excluding aircraft) of every kind and nature whatsoever of the
Mortgagor now or hereafter located or situate on the Real Property or in
any buildings or improvements located upon the Real Property, or any
part thereof, or used or usable or intended to be used in connection
therewith, or with the operation of the Real Property, all additions,
improvements and betterments thereto or thereof, all substitutions and
replacements therefor and all products and Proceeds of any of the
foregoing, and any and all tenements, hereditaments, easements, and
appurtenances thereunto belonging or in any way appertaining, and all
claims and demands, in law or in equity, of the Mortgagor in and to any
of the foregoing; and
(iii) All deposits made with, or other security given to,
utility companies by the Mortgagor or any other person on behalf of the
Mortgagor with respect to the Real Property, all of the Mortgagor's
rights relating to the Real Property or the operation thereof, or used
in connection therewith, including without limitation, all rights to
any permits, licenses, authorizations and approvals granted to or
otherwise held by the Mortgagor in regard to the Real Property, all
rights of the Mortgagor to any contracts relating to the Real Property
and all engineering, architectural and other plans, drawings and
specifications in connection therewith, and all other intangible rights
of the Mortgagor relating to the Real Property or used or usable in
connection therewith,
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(the foregoing Leasehold Interest and Additional Property hereinafter referred
to collectively as the "Mortgaged Property"). To the extent any of the Mortgaged
Property is deemed to be personal property or fixtures under the Florida Uniform
Commercial Code, the Mortgagor does hereby grant to the Mortgagee a security
interest in all of said personal property and fixtures.
TO HAVE AND TO HOLD the Mortgaged Property, together with all and
singular the tenements, hereditaments and appurtenances thereunto belonging or
in anywise appertaining, with the reversion and reversions thereof, and all the
estate, right, title, interest, homestead, possession, claim and demand
whatsoever, as well in law as in equity, of the Mortgagor and unto the same, and
every part thereof, with the appurtenances of the Mortgagor in and to the same,
and every part and parcel thereof unto the Mortgagee.
The Mortgagor warrants that the Mortgagor has a good and marketable
title to and indefeasible fee estate in the Mortgaged Property subject to no
lien, mortgage, security interest or any other encumbrance of any nature
whatsoever except for the permitted encumbrances (the "Permitted Encumbrances")
defined below, and the Mortgagor covenants that this Mortgage is and will remain
a valid and enforceable mortgage on the Mortgaged Property subject only to the
Permitted Encumbrances. The Mortgagor has full power and lawful authority to
mortgage the Mortgaged Property in the manner and form herein done or intended
hereafter to be done. The Mortgagor will preserve such title and will forever
warrant and defend the same to Mortgagee and will forever warrant and defend the
validity and priority of the lien hereof against the claims of all persons
whomsoever.
The Mortgagor will, at the cost of the Mortgagor, and without expense
to the Mortgagee, do, execute, acknowledge and deliver all and every one of such
further acts, deeds, conveyances, mortgages, assignments, notices of assignment,
transfers and assurances as the Mortgagee shall from time to time require in
order to preserve the priority of the lien of this Mortgage or to facilitate the
performance of the terms hereof.
PROVIDED, HOWEVER, that if the Mortgagor shall pay or cause to be paid
to Mortgagee the indebtedness in the principal sum of $2,000,000.00 as evidenced
by the Note, from which the Mortgagor has directly benefitted, executed by the
Mortgagor and payable to the order of the Mortgagee, with interest and upon the
terms as provided therein, together with all other sums advanced by the
Mortgagee to or on behalf of the Mortgagor pursuant to the Note, any other Loan
Documents or this Mortgage, or otherwise due and owing by the Mortgagor to the
Mortgagee at any time, and all of the other Obligations as set forth above and
secured hereby,
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and shall perform all other covenants and conditions of the Note, all of the
terms of which Note are incorporated herein by reference as though set forth
fully herein, and of any renewal, extension or modification thereof, and of this
Mortgage, the other Loan Documents and such other Obligations, then this
Mortgage and the estate hereby created shall cease and terminate. The Mortgagor
further covenants and agrees with the Mortgagee as follows:
1. PAYMENT OF NOTE. The Mortgagor shall pay all sums, including
interest secured hereby, when due as provided for in the Note and any renewal,
extension or modification thereof and in this Mortgage, all such sums to be
payable in lawful money of the United States of America at the Mortgagee's
aforesaid principal office or at such other place as the Mortgagee may designate
from time to time in writing. As set forth above, the term "Note" means and
includes any and all amendments, changes, modifications, renewals, replacements
and substitutions of or to said Note.
2. PAYMENT OF TAXES AND FEES ON OR RELATED TO MORTGAGED PROPERTY. The
Mortgagor shall pay when due, and before any delinquency or default shall occur,
and without requiring any notice from the Mortgagee, all taxes, assessments,
dues, charges (including utility charge), fees, levies, fines, impositions,
liabilities, obligations and encumbrances of any type or nature and other
charges levied or assessed against the Mortgaged Property or any part thereof or
this Mortgage or the indebtedness or other sums secured hereby, or upon or
against the interest of Mortgagee in the Mortgaged Property and, in each case
shall produce receipts therefor upon demand.
3. PAYMENT OF ENCUMBRANCES. The Mortgagor shall immediately pay and
discharge (or transfer in full to a bond) any lien (except for Permitted
Encumbrances) against the Mortgaged Property which may be or become superior to
this Mortgage and shall not permit any default or delinquency on any other lien,
against the Mortgaged Property (including Permitted Encumbrances). In regard to
any Permitted Encumbrances, the Mortgagor shall at all times keep current and
not default under any Permitted Encumbrance.
4. MONTHLY DEPOSITS FOR TAXES AND INSURANCE. If required by the
Mortgagee, the Mortgagor shall make monthly deposits with the Mortgagee, in a
non-interest bearing account, together with and in addition to payments of
interest and principal due under the Note, of a sum equal to one-twelfth of the
yearly taxes and assessments which may be levied against the Mortgaged Property
and for which the Mortgagor is or may be liable, if any, and (if so required)
one-twelfth of the yearly
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premiums for insurance thereon. The amount of such taxes, assessments and
premiums, when unknown, shall be estimated by Mortgagee. Such deposits shall be
used by the Mortgagee to pay such taxes, assessments and premiums when due. Any
insufficiency of such account to pay such charges when due shall be paid by the
Mortgagor to the Mortgagee on demand. If, by reason of any default by the
Mortgagor under any provision of this Mortgage, the Mortgagee declares all sums
secured hereby to be due and payable, the Mortgagee may then apply any funds in
said account against the entire indebtedness secured hereby. The enforceability
of the covenants relating to taxes, assessments and insurance premiums herein
otherwise provided shall not be affected except insofar as those obligations
have been met by compliance with this paragraph. The Mortgagee may from time to
time at its option waive, and after any such waiver reinstate, any or all
provisions hereof requiring such deposits, by notice to the Mortgagor in
writing. While any such waiver is in effect, the Mortgagor shall pay taxes,
assessments and insurance premiums as herein elsewhere provided.
5. PAYMENT OF TAXES AND ASSESSMENTS ON MORTGAGE. The Mortgagor shall
promptly pay all taxes and assessments assessed or levied under and by virtue of
any state, federal or municipal law or regulation hereafter passed against the
Mortgagee upon this Mortgage or the debt hereby secured, or upon its interest
under this Mortgage, provided however, that in the event of the passage of any
such law or regulation imposing a tax or assessment against the Mortgagee upon
this Mortgage or the debt secured hereby, that the entire indebtedness secured
by this Mortgage shall thereupon become immediately due and payable at the
option of the Mortgagee.
6. INSURANCE. The Mortgagor shall keep the Mortgaged Property insured
against loss or damage by fire, and all perils insured against by an extended
coverage endorsement, and such other risks and perils as the Mortgagee in its
discretion may require, and shall comply, at all times, with all insurance
requirements. The policy or policies of such insurance shall be in the form in
general use from time to time in the locality in which the Mortgaged Property is
situated, shall be in such amount as the Mortgagee may reasonably require, shall
be issued by a company or companies licensed in the State of Florida and rated
"A" or better according to the current Best's Key Rating Guide, shall contain a
standard mortgagee clause with loss payable to the Mortgagee by New York
Standard or Union Standard long form endorsements and shall specifically provide
that the same shall not be canceled or modified adversely to the interest of the
Mortgagee without thirty (30) days prior written notice to the Mortgagee by the
insurer. Whenever required by the Mortgagee, such policies shall be delivered
immediately to and held by the Mortgagee. Any and all amounts received by
Mortgagee under any
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of such policies may be applied by the Mortgagee on the indebtedness secured
hereby in such manner as the Mortgagee may, in its sole discretion, elect or, at
the option of the Mortgagee, the entire amount so received or any part thereof
may be released. Neither the application nor the release of any such amounts
shall cure or waive any default under this Mortgage. Upon exercise of the power
of sale given in this Mortgage or other acquisition of the Mortgaged Property or
any part thereof by the Mortgagee, such policies shall become the absolute
property of the Mortgagee.
7. ZONING. The Mortgagor hereby represents, covenants and warrants that
all applicable zoning laws, ordinances and regulations affecting the Real
Property and the buildings, structures and improvements located thereto permit
the use and occupancy thereof as an aircraft maintenance hangar facility.
8. CONSENT TO CHANGES IN MORTGAGED PROPERTY AND THE LEASE. The
Mortgagor shall first obtain the written consent of the Mortgagee, which consent
shall not be unreasonably withheld before: (a) removing or demolishing any
building now or hereafter erected on the Mortgaged Property; (b) altering the
arrangement, design or structural character thereof; (c) making any repairs
which involve the removal of structural parts or the exposure of the interior of
such building to the elements; (d) removing or exchanging any tangible personal
property which is part of the Mortgaged Property; or (e) entering into any
amendments, modifications, supplements, renewals or replacements of the Lease.
9. MAINTENANCE OF MORTGAGED PROPERTY. The Mortgagor shall maintain the
Mortgaged Property in good condition and repair, including but not limited, to
the making of such repairs as the Mortgagee may from time to time determine to
be necessary for the preservation of the Mortgaged Property, and shall not
commit or permit any waste thereof. The Mortgagee shall have the right to
inspect the Mortgaged Property on reasonable notice to the Mortgagor.
10. COMPLIANCE WITH LAWS, THE LEASE, ETC. The Mortgagor shall comply
with all laws, statutes, ordinances, regulations, covenants, conditions and
restrictions affecting the Mortgaged Property, including, without limitation, to
the extent applicable, The Americans With Disabilities Act of 1990 (42 U.S.C.
Section 12101 et seq) and the Florida Americans With Disabilities Accessibility
Implementation Act, and all rules and regulations promulgated thereunder, as
such laws, rules and regulations may from time to time be amended or modified,
all Environmental Laws (as defined in the Environmental Indemnification
Agreement (the "Environmental Agreement") by and between the Mortgagor and the
Mortgagee of even date herewith)
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and all easements, restrictive covenants and conditions that may be applicable
to the Mortgaged Property and shall not cause or permit any violation thereof.
The Mortgagor shall comply with all of the terms and conditions of the Lease and
timely perform its obligations thereunder, including payment of all lease
payments required thereby and shall promptly provide Mortgagee with notice of
any default or claim of default under the Lease on the part of either party
thereto.
11. FAILURE TO PAY ENCUMBRANCES/MAINTAIN PROPERTY. If the Mortgagor
fails (i) to pay any claim, lien or encumbrance on the Mortgaged Property,
regardless of whether it is superior or junior to this Mortgage, (provided,
however, this clause shall not by itself authorize or permit any placement of a
junior encumbrance on the Mortgaged Property), (ii) to pay when due, any tax or
assessment or insurance premium, (iii) to keep and maintain the Mortgaged
Property in repair, or shall commit or permit waste, then the Mortgagee, may at
its option, may, but is not required to, pay said claim, lien, encumbrance, tax,
assessment or premium, with right of subrogation thereunder, may make such
repairs and take such steps as it deems advisable to prevent or cure such waste,
and take such action therein as the Mortgagee deems advisable, and for any of
such purposes the Mortgagee may advance such sums of money, including all costs,
reasonable attorneys' fees and other items of expense as it deems necessary and
all of such sums of money shall be secured by the lien of this Mortgage. The
Mortgagee shall be the sole judge of the legality, validity and priority of any
such claim, lien, encumbrance, tax, assessment and premium and of the amount
necessary to be paid in satisfaction thereof. The Mortgagee shall not be held
accountable for any delay in making any such payment, which delay may result in
any additional interest, costs, charges, expenses or otherwise.
12. PAYMENT OF ADVANCES. The Mortgagor will pay to the Mortgagee,
immediately and without demand, all sums of money advanced by the Mortgagee to
protect the security hereof pursuant to this Mortgage, including without
limitation all costs reasonably incurred by the Mortgagee in evaluating or
correcting dangerous, harmful or unlawful conditions found to exist on or about
the Mortgaged Property, reasonable attorneys' fees and other items of expense,
together with interest on each such advance at the rate of interest otherwise
provided herein, and all such sums and interest thereon shall be secured hereby.
13. AMOUNTS ABSOLUTELY DUE. The Mortgagor shall pay all sums of money
secured hereby without any relief whatever from any valuation or appraisement
laws.
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14. SPECIAL CONDITIONS. During the term of this Mortgage and the
obligations secured hereby, the Mortgagor shall comply with the following
additional special conditions:
(a) The Mortgagor shall not incur any other indebtedness or
contingent liabilities and will not enter into any operating leases, or
create, suffer or permit any other lien or security interest against
any of its assets now or hereafter in existence, if the cumulative
effect of the foregoing will cause Mortgagor to violate any of the
special conditions set forth in this paragraph 14 without the
Mortgagee's prior written consent.
(b) In the event of default or an Event of Default hereunder
or under any of the Obligations secured hereby, the Mortgagee shall
have the option, in its sole discretion, of requiring the Borrowers to
provide cash collateral in the amount of the outstanding balance from
time to time of the Note. In the event the Mortgagee elects to require
such additional cash collateral, the Borrowers shall provide such
additional collateral to the Mortgagee within five (5) days of the
request therefor by the Mortgagee and shall execute any documents
considered necessary by Mortgagee or its counsel in connection
therewith.
(c) The Borrowers shall establish and maintain at the
Mortgagee a cash collateral account and shall assign said account to
the Mortgagee as additional security for the Obligations secured
hereby. Such account shall at all times have a balance in the amount of
at least the equivalent of twenty-four (24) then current monthly lease
payments under the Lease from time to time.
(d) The Borrowers shall comply with the following financial
covenants and ratios on a consolidated basis, which shall be determined
by the Mortgagee from the Borrowers' financial statements provided to
the Mortgagee in accordance with this Mortgage, and all terms not
defined in this subparagraph (d) shall be defined and determined in
accordance with generally accepted accounting principles, consistently
applied:
(i) Funded Debt to Tangible Net Worth Ratio. The ratio of
the Borrowers' funded debt to tangible net worth shall not
exceed 1.0:1, tested quarterly. Funded debt shall be defined as
interest-bearing debt plus capitalized lease obligations.
(ii) Current Ratio. The Borrowers' current ratio tested
quarterly shall equal or exceed 1.0:1
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on the last day of each calendar quarter through December 31,
1996 and 1.2:1 on March 31, 1997 and on the last day of each
calendar quarter thereafter .
(iii) Debt Service Coverage Ratio. The Borrowers' debt
service coverage ratio shall be equal to or greater than 1.5:1,
tested quarterly, at the end of each calendar quarter, beginning
March 31, 1997. Debt Service Coverage Ratio for any given time
period shall be defined as the ratio of the sum of Borrowers'
net income plus non-cash charges divided by the current
maturities of long term debt.
(iv) Minimum Net Worth. The Borrowers' net worth as at
fiscal year end March 31, 1996 shall equal or exceed
$22,000,000.00, and as at the end of each fiscal year thereafter
Borrowers' minimum net worth shall increase by (i) seventy-five
percent (75%) of after tax net income for such fiscal year
commencing with the fiscal year ending March 31, 1997; and (ii)
one hundred percent (100%) of the net proceeds of any equity
offering. For example, assuming no equity offering, if the
actual net worth on March 31, 1996 is $25,000,000.00 and the
preceding year's after tax net income is $1,000,000.00, then the
new minimum net worth requirement for March 31, 1997 would be
$22,750,000.00.
(v) Minimum Unencumbered Cash. The Borrowers'
unencumbered cash shall equal or exceed $5,000,000.00, tested
quarterly.
(e) The Borrowers shall maintain their primary bank accounts
and banking relationships with the Mortgagee.
15. EVENTS OF DEFAULT. Each and all of the following shall each
constitute an event of default (an "Event of Default") hereunder:
(a) A default occurs under the Note.
(b) A default occurs under paragraphs 6, 12 or 14 of this
Mortgage.
(c) A default occurs under any other term or condition of this
Mortgage and, if capable of being remedied, such default shall remain
unremedied for 30 days after the earlier of (i) Borrowers' obtaining
knowledge thereof, or (ii) written notice thereof shall have been given
to Borrowers by Mortgagee.
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(d) A default occurs under the terms and conditions of the
Security Agreement or any other Loan Document.
(e) A default occurs under the terms and conditions of that
certain Letter of Credit Facility Agreement of even date herewith by
and among the Mortgagee, the Mortgagor and AIRWAYS CORPORATION, a
Delaware corporation, and an affiliate of the Mortgagor.
(f) The occurrence of a default under the Lease which is not
cured within any applicable cure period.
(g) The Lease is terminated or not renewed for any reason
whatsoever.
(h) If the Federal Aviation Administration shall at any time
during the term of this Mortgage restrict the ability of the Mortgagor
to fly its regularly scheduled routes on a regular basis or otherwise
restrict the Mortgagor's ability to operate its business as presently
conducted.
16. REMEDIES UPON DEFAULT. Upon the happening and during the
continuance of any Event of Default, the Mortgagor may exercise to any one or
more of the following remedies, each of which shall be cumulative:
(a) All of the indebtedness secured hereby shall become and be
immediately due and payable at the option of the Mortgagee, without
notice or demand which are hereby expressly waived, in which event the
Mortgagee may (but shall be under no duty or obligation to) avail
itself of all rights and remedies, at law or in equity, including
without limitation, those available to a secured party upon default
under the Florida Uniform Commercial Code;
(b) This Mortgage may be foreclosed with all rights and
remedies afforded by the laws of the State of Florida and the failure
to make any landlords party defendant to any such foreclosure
proceedings and to foreclose their rights will not be, nor be asserted
by Mortgagor to be, a defense to any proceedings instituted by
Mortgagee to collect the sums secured hereby;
(c) Any other remedies provided by law or under any other loan
document including the Note or any other Loan Documents.
In connection with the exercise of any such remedies, the Mortgagor shall pay
all costs and expenses incurred by the
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Mortgagee in (i) enforcing this Mortgage, (ii) preserving, securing or
protecting the Mortgaged Property, (iii) evaluating any conditions on or about
the Mortgaged Property, including environmental assessments, surveys or studies,
(iv) realizing upon the Mortgaged Property or any part thereof, and (v)
collecting any of the indebtedness secured hereby, including without limitation
reasonable attorneys' fees whether suit is brought or not and whether incurred
in connection with collection, at trial, on rehearing, retrial or appeal, in
bankruptcy or otherwise.
17. DEFAULT INTEREST/LATE CHARGES/INTEREST ON ADVANCES. The Mortgagor
further agrees to pay as follows:
(a) Upon the occurrence of any default, the indebtedness
secured hereby shall bear interest without notice or demand at the
default rate of interest set forth in the Note, from and after the date
of any such default of the Mortgagor.
(b) If the Note provides for installment payments, the
Mortgagee may, at its option, collect a late charge as may be provided
for in the Note, to reimburse the Mortgagee for expenses in collecting
and servicing such installment payments.
(c) If the Mortgagee should extend any advances for or in
behalf of the Mortgagor, the Mortgaged Property, or otherwise as
permitted under this Mortgage.
18. RIGHT TO RECEIVER ON DEFAULT. Upon the happening and during the
continuance of any Event of Default:
(a) The Mortgagee is authorized at any time, without notice,
in its sole discretion to enter upon and take possession of the
Mortgaged Property or any part thereof, subject to the Lease, and to
exclude Mortgagor and its agents and employees wholly therefrom and may
have joint access with Mortgagor to the books, papers, records and
accounts of Mortgagor and to perform any acts the Mortgagee deems
necessary or proper to conserve the security; and
(b) Upon such entering upon or taking of possession, Mortgagee
may hold, store, use, operate, manage and control the Mortgaged
Property and conduct the business thereof, and from time to time, make
all necessary and proper maintenance, repairs, renewals, replacements,
additions, betterments and improvements thereto and thereon and
purchase or otherwise acquire additional fixtures, personalty and other
property, insure or keep the Mortgaged Property insured, manage and
operate the Mortgaged Property
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and exercise all rights and powers of Mortgagor in its name or
otherwise with respect to the same and enter into agreements with
others to exercise the powers herein granted Mortgagee, all as
Mortgagee in its reasonable judgment from time to time may determine;
and Mortgagee may collect and receive all the income, revenues, rents,
issues and profits of the same, including those past due as well as
those accruing thereafter; and
(c) The Mortgagee shall be entitled, as a matter of strict
right, without notice and ex parte, and without regard to the value
or occupancy of the security, or the solvency of the Mortgagor, or
the adequacy of the Mortgaged Property as security for the Note, to
have a receiver appointed to enter upon and take possession of and
operate the Mortgaged Property, collect the income, revenues, rents,
issues and profits therefrom and apply the same as the court may
direct, such receiver to have all the rights and powers permitted
under the laws of Florida.
In either such case, the Mortgagee or the receiver may also take possession of,
and for these purposes use, any and all personal property which is a part of the
Mortgaged Property and used by the Mortgagor in or arising from the sale, rental
or leasing thereof or any part thereof. The expense (including receiver's fees,
counsel fees, costs and agent's compensation) incurred pursuant to the powers
herein contained shall be secured hereby. The Mortgagee shall (after payment of
all costs and expenses incurred) apply such income, revenues, rents, issues,
proceeds and profits received by it on the indebtedness secured hereby in such
order as the Mortgagee determines. The right to enter and take possession of the
Mortgaged Property, to manage and operate the same, and to collect the income,
revenues, rents, issues, proceeds and profits thereof, whether by a receiver or
otherwise, shall be cumulative to any other right or remedy hereunder or
afforded by law, and may be exercised concurrently therewith or independently
thereof. The Mortgagee shall be liable to account only for such income,
revenues, rents, issues, proceeds and profits actually received by the
Mortgagee.
19. CUMULATIVE RIGHTS ON DEFAULT. If the indebtedness secured hereby is
now or hereafter further secured by mortgages, security interests, financing
statements, pledges, contracts of guaranty, assignments of leases or other
securities, or if the Mortgaged Property hereby encumbered consists of more than
one parcel of real property, the Mortgagee may, at its option, exhaust any one
or more of said securities and security hereunder, or such parcels of the
security hereunder, either concurrently or independently, and in such order as
it may determine. All such remedies may be exercised by the Mortgagee
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without any marshalling of assets, which marshalling of assets the Mortgagor
does hereby expressly waive.
20. FUTURE ADVANCES. This Mortgage shall secure not only existing
indebtedness, but also such future advances, whether such advances are
obligatory or to be made at the option of the Mortgagee or otherwise, as are
made within twenty (20) years from the date hereof, to the same extent as if
such future advances were made on the date of the execution of this Mortgage,
but such secured indebtedness shall not exceed at any time the maximum principal
amount of two times the amount of the Note, plus interest thereon, and any
disbursements made for the payment of taxes, levies or insurance on the
Mortgaged Property with interest on such disbursements. Any such future
advances, whether obligatory or to be made at the option of the Mortgagee or
otherwise, may be made either prior to or after the due date of the Note or any
other Obligations secured by this Mortgage. This Mortgage is given for the
specific purpose of securing any and all indebtedness by the Mortgagor to the
Mortgagee (but in no event shall the secured indebtedness exceed at any time the
maximum principal amount set forth in this paragraph) in whatever manner this
indebtedness may be evidenced or represented until this Mortgage is satisfied of
record. All covenants and agreements contained in this Mortgage shall be
applicable to all further advances made by the Mortgagee to the Mortgagor under
this future advance clause. The Mortgagor agrees that it will not, without the
consent of the Mortgagee, execute and record any notice limiting the right of
the Mortgagee to make or the Mortgagor to accept future advances hereunder.
21. NO WAIVER. No delay by the Mortgagee in exercising any right or
remedy hereunder, or otherwise afforded by law, shall operate as a waiver
thereof or preclude the exercise thereof during the continuance of any Event of
Default hereunder. No waiver by the Mortgagee of any Event of Default shall
constitute a waiver of or consent to subsequent Events of Default. No failure of
the Mortgagee to exercise any option herein given to accelerate maturity of the
debt hereby secured; no forbearance by the Mortgagee before or after the
exercise of such option and no withdrawal or abandonment of foreclosure
proceedings by the Mortgagee shall be taken or construed as a waiver of its
right to exercise such option or to accelerate the maturity of the debt hereby
secured by reason of any past, present or future default on the part of the
Mortgagor; and, in like manner, the procurement of insurance or the payment of
taxes or other liens or encumbrances by the Mortgagee shall not be taken or
construed as a waiver of its right to accelerate the maturity of the debt hereby
secured.
22. RELEASE RIGHTS OF MORTGAGEE. Without affecting the liability of the
Mortgagor or any other person (except any person
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expressly released in writing) for payment of any indebtedness secured hereby or
for performance of any obligation contained herein, and without affecting the
rights of the Mortgagee with respect to any security not expressly released in
writing, the Mortgagee may, at any time and from time to time, either before or
after the maturity of the Note, and without notice or consent:
(a) Release any person liable for payment of all or any part
of the indebtedness evidenced by the Note or for performance of any of
the other Obligations;
(b) Make any agreement extending the time or otherwise
altering the terms of payment of all or any part of the indebtedness
evidenced by the Note, or modifying or waiving any of the other
Obligations, or subordinating, modifying or otherwise dealing with the
lien or charge hereof;
(c) Exercise or refrain from exercising or waive any right the
Mortgagee may have;
(d) Accept additional security of any kind; and
(e) Release or otherwise deal with any property, real or
personal, securing the indebtedness, including all or any part of the
Mortgaged Property.
23. NO FURTHER LIENS OR ENCUMBRANCES. The Mortgagor shall not, without
the Mortgagee's consent, which consent shall not be unreasonably withheld, grant
to any other person whatsoever any lien, mortgage or any other encumbrance
whatsoever on any of the Mortgaged Property. Any attempt by the Mortgagor to do
so shall constitute a default hereunder. Further, any such mortgage or
encumbrance shall be invalid and shall not constitute any lien on the Mortgaged
Property. Included within the term "Mortgaged Property" is the express right of
the Mortgagor to grant to any third party any further interest or right in the
Mortgaged Property, whether by virtue of any junior encumbrance, easement, etc.
24. PRIORITY OVER FUTURE LIENS OR ENCUMBRANCES. Any amendment or
modification of this Mortgage hereafter made by the Mortgagor and the Mortgagee
pursuant to this Mortgage shall be superior to the rights of the holder of any
Lien on the Mortgaged Property arising subsequent to the date of this Mortgage
(provided, however, that this clause shall not by itself authorize or permit any
subsequent liens or encumbrances on the Mortgaged Property which are otherwise
prohibited under the terms of this Mortgage).
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25. CONDEMNATION. In the event of condemnation proceedings of the
Mortgaged Property or any part thereof, the award or compensation payable
thereunder is hereby assigned to and shall be paid to the Mortgagee. The
Mortgagee shall be under no obligation to question the amount of any such award
or compensation and may accept the same in the amount in which the same shall be
paid. In any such condemnation proceedings, the Mortgagee may be represented by
counsel selected by the Mortgagee. The proceeds of any award or compensation so
received shall, at the option of the Mortgagee, either be applied to the
prepayment of the Note and at the rate of interest provided therein, regardless
of the rate of interest payable on the award by the condemning authority, or at
the option of the Mortgagee, such award shall be paid over to the Mortgagor for
restoration of the Mortgaged Property.
26. DUE ON SALE. The loan evidenced by the Note and secured by this
Mortgage is personal to the Mortgagor and the Mortgagee made the loan to the
Mortgagor based upon the credit of the Mortgagor and the Mortgagee's judgment of
the ability of the Mortgagor to repay all sums due under this Mortgage, and
therefore this Mortgage may not be assumed by any subsequent holder of an
interest in the Mortgaged Property. If all or any part of the Mortgaged Property
or any interest therein, is sold, conveyed, transferred (including a transfer by
agreement for deed or land contract), abandoned or further encumbered by the
Mortgagor or if the Mortgagor shall cease operating an aircraft maintenance
hangar facility on the Real Property, without the Mortgagee's prior written
consent, excluding partial releases of portions of the Mortgaged Property as
provided herein, then in that event the Mortgagee may declare all sums secured
by this Mortgage immediately due and payable.
27. SEVERABILITY. In the event any one or more of the provisions
contained in this Mortgage or in the Note shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall, at the option of the Mortgagee, not affect any other
provisions of this Mortgage, and this Mortgage shall then be construed as if
such invalid, illegal or unenforceable provision had never been contained herein
or therein. The total interest payable pursuant to the Note or this Mortgage
shall not in any one year exceed the highest lawful rate of interest allowed by
the law of the State of Florida.
28. SUCCESSORS AND ASSIGNS. The covenants and agreements herein
contained shall bind, and the benefits and advantages shall inure to the
respective heirs, executors, administrators, successors and assigns of the
parties hereto; provided, however, that this paragraph shall not of itself
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authorize the Mortgagor to sell or transfer the Mortgaged Property.
29. MISCELLANEOUS. Wherever used, the singular number shall include the
plural, the plural the singular and the use of any gender shall be applicable to
all genders. If more than one Mortgagor executes this Mortgage, the term
"Mortgagor" includes each of the mortgagors, and all covenants, agreements and
undertakings hereunder shall be joint and several. Time is of the essence of
this Mortgage. The captions set forth to the paragraphs in this Mortgage are for
convenience only and do not limit, expand or define the terms and conditions of
this Mortgage.
30. FINANCIAL STATEMENTS OF THE MORTGAGOR. During the term of this
Mortgage, each Borrower shall furnish the Mortgagee (a) annually, (i) within
ninety (90) days of the expiration of its fiscal year, an audited financial
statement of such Borrower, containing the unqualified opinion of a Certified
Public Accountant acceptable to the Mortgagee, together with (A) a certification
of the Chief Financial Officer of the Borrowers that no default exists under the
loan documents or any other obligations of such Borrower to the Mortgagee and
(B) a certificate confirming the Borrowers' compliance with all financial
covenants and ratios, in form and substance acceptable to the Mortgagee and
certified to the Mortgagee by an authorized financial officer of such Borrower,
(ii) promptly upon receipt thereof, a copy of any management letters submitted
to either Borrower by its independent Certified Public Accountant, and (iii)
within thirty (30) days after their filing, copies of such Borrower's Federal
Income Tax Return; (b) on a quarterly basis, an internally prepared Form 10Q
filed with the Securities and Exchange Commission within forty-five (45) days of
the end of each calendar quarter, certified to the Mortgagee by an authorized
financial officer of such Borrower; and (c) with reasonable promptness, such
other financial information as the Mortgagee may request.
31. GOOD STANDING OF THE MORTGAGOR. The Mortgagor represents and
warrants that it is now and will be during the term of this Mortgage a duly
formed and validly existing corporation in the state of its incorporation, and
is fully qualified to do business in the State of Florida, with full power and
authority to consummate the loan secured hereby.
32. PERMITTED ENCUMBRANCES. The Mortgage granted hereby is not subject
to any encumbrance, mortgage, security interest or any other lien of any nature
whatsoever on the Mortgaged Property except for the following Permitted
Encumbrances;
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(a) Taxes and assessments occurring subsequent to December 31,
1995 (provided, however, this shall not relieve the Mortgagor of its
obligation to pay said taxes and assessments as set forth herein).
(b) Matters as set forth in that certain First American Title
Insurance Company title commitment issued on February 7, 1996 under
Commitment No. FA-CC-95.03899(B).
33. ADDITIONAL AMOUNTS SECURED BY MORTGAGE. This Mortgage secures, in
addition to amounts due under the Note and as otherwise set forth in this
Mortgage, any and all amounts which may be expended or incurred by the Mortgagee
in connection with the Mortgaged Property including, but not limited to, the
costs for any appraisals, title updates or searches, environmental audits or
reviews including, but not limited to, any matters under the Environmental
Agreement, all regardless of whether or not any default has occurred.
34. WAIVER OF JURY TRIAL. THE MORTGAGOR HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY, AFTER CAREFUL CONSIDERATION AND AN OPPORTUNITY TO SEEK LEGAL
ADVICE, WAIVES ITS RIGHT TO HAVE A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY OF THE PROVISIONS OF THIS
MORTGAGE, THE NOTE, THE LOAN DOCUMENTS, OR ANY OTHER DOCUMENTS EXECUTED IN
CONJUNCTION WITH THE LOAN SECURED BY THIS MORTGAGE.
35. COMPLETE AGREEMENT. This Mortgage constitutes the complete
agreement between the parties hereto and it may not be amended, changed or
modified except by a writing signed by the party to be charged by said
amendment, change or modification.
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IN WITNESS WHEREOF, the Mortgagor has duly executed this Mortgage as
of the day and year first above written.
Signed, sealed and delivered
in the presence of: AIRTRAN AIRWAYS, INC.
/s/ Xxxxx X. Fides, II By: /s/ Xxxx X. Xxxx
----------------------- --------------------
(Signature of Witness) Xxxx X. Xxxx
President and Chief
Xxxxx X. Fides, II Executive Officer
----------------------
(Print Name of Witness)
(CORPORATE SEAL)
/s/ Xxxxx X. Xxxxx
----------------------
(Signature of Witness)
Xxxxx X. Xxxxx
----------------------
(Print Name of Witness)
As to the "Mortgagor"
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 7th day of
March, 1996, by Xxxx X. Xxxx, as President and Chief Executive Officer of
AIRTRAN AIRWAYS, INC., a Delaware corporation, on behalf of the corporation.
/s/ Xxxxx X. Fides, II
-----------------------------------------
Signature of Notary Public - State of Florida
[SEAL]
Xxxxx X. Fides, II _
Print, type or stamp commissioned name of Notary
Personally known [X] OR
Produced Identification [ ]
Type of Identification Produced:________________
(NOTARIAL SEAL)
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JOINDER BY CO-BORROWER
The undersigned, being the co-borrower under the loan secured hereby
and co-Maker of the Note, does hereby absolutely and unconditionally agree to be
bound by and to comply with the terms, conditions and obligations of the
foregoing Leasehold Mortgage and Security Agreement applicable to it. The
obligation of the undersigned Co-Borrower shall, as set forth above, survive any
repayment of the Loan, and this obligation may not be canceled in any way
whatsoever by the Co-Borrower.
Dated this 7th day of March, 1996.
Signed, sealed and delivered AIRWAYS CORPORATION
in the presence of:
/s/ Xxxxx X. Fides, II By /s/ Xxxx X. Xxxx
---------------------- -------------------------
(Signature of Witness) Xxxx X. Xxxx
President
Xxxxx X. Fides, II
----------------------
(Print Name of Witness)
(CORPORATE SEAL)
/s/ Xxxxx X. Xxxxx
----------------------
(Signature of Witness)
Xxxxx X. Xxxxx
----------------------
(Print Name of Witness)
As to the Co-Borrower
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 7th day of
March, 1996, by Xxxx X. Xxxx, as President of Airways Corporation, a Delaware
corporation, on behalf of the corporation.
/s/ Xxxxx X. Fides, II
------------------------------------
Signature of Notary Public, State of
Florida
Xxxxx X. Fides, II
[SEAL] -----------------------------------
(Print/Typed/Stamped Name of Notary
Public)
Personally known [X]; or, Produced
Identification: [ ]; Type of
Identification
Produced:_________________________________
(NOTARIAL SEAL)
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EXHIBIT "A"
LEGAL DESCRIPTION OF REAL PROPERTY
A part of Xxxxxxx 0, Xxxxxxxx 00 Xxxxx, Xxxxx 30 East, Orange County,
Florida, being more particularly described as follows:
Commence at the Southeast corner of said Xxxxxxx 0, Xxxxxxxx 00 Xxxxx,
Xxxxx 00 Xxxx, (Xxxxxxxx are based on the Florida Coordinate System, East Zone);
thence North 89 degrees 22'42" West along the South line of said Section 8 for
986.48 feet; thence North 00 degrees 25'23" West for 1108.89 feet to a line
being 150.00 feet Southeasterly of and parallel with the centerline of Taxiway
No. 2; thence South 54 degrees 38'04" West along said line for 121.99 feet to
the Point of Beginning; thence continue South 54 degrees 38'04" West along said
line for 774.06 feet; thence South 35 degrees 21'56" East for 660.00 feet;
thence North 54 degrees 38'04" East for 312.91 feet; thence North 00 degrees
25'23" West for 805.14 feet to the Point of Beginning.
AND that certain parcel more particulary described as follows:
Commence at the Southeast corner of said Xxxxxxx 0, Xxxxxxxx 00 Xxxxx,
Xxxxx 00 Xxxx, Xxxxxx Xxxxxx Florida, (bearings are based on the Florida
Coordinate System, East Zone); thence North 89 degrees 22'42" West along the
South line of said Section 8 for 986.48 feet; thence North 00 degrees 25'23"
West for 1108.89 feet to a line being 150.00 feet Southeasterly of and parallel
with the centerline of Taxiway No. 2; thence South 54 degrees 38'04" West for
121.99 feet; thence South 00 degrees 25'23" East along said line for 686.73 feet
to the Point of Beginning; thence continue North 55 degrees 00'19" East along
said line for 91.00 feet; thence North 34 degrees 59'41" West for 19 feet;
thence North 55 degrees 00'19" East for 85 feet; thence South 34 degrees 59'41"
East for 25 feet; thence North 55 degrees 00'19" East for 55 feet; thence South
34 degrees 59'41" East for 42 feet; thence South 55 degrees 00'19" West for 55
feet; thence South 34 degrees 59'41" East for 25 feet; thence South 55 degrees
00'19" West for 45 feet; thence North 88 degrees 07'29" West for 50 feet; thence
North 34 degrees 59'41" West for 23 feet; thence South 55 degrees 00'19" West
for 104.78 feet; thence North 00 degrees 25'23" West for 24.29 feet to the Point
of Beginning.
