CONFORMED COPY
--------------
CONSENT AND AGREEMENT
to the Security Agreement and
Collateral Assignment of the Purchase Agreement
-----------------------------------------------
THIS CONSENT AND AGREEMENT ("Consent") is entered into as of December
22, 1999 by and among Midway Airlines Corporation ("Midway"), General Electric
Capital Corporation ("Assignee") and The Boeing Company ("Manufacturer").
RECITALS
--------
A. Midway and Assignee have heretofore entered into that certain Loan
Agreement, pursuant to which Assignee and the members of the syndicate
identified therein (if applicable) have agreed to make certain funds available
to Midway in order to enable Midway to meet its deposit and advance payment
obligations in respect of the Aircraft (as defined in the Collateral Assignment,
defined below) under the Purchase Agreement.
B. Midway and Assignee have entered into that certain Security Agreement
and Collateral Assignment of Purchase Agreement dated as of December 22, 1999
("Collateral Assignment"), pursuant to which, among other things, Midway has
granted to Assignee a security interest in all of Midway's right and interest in
and to the Purchase Agreement in order to secure performance of Midway under and
in respect of the Loan Agreement.
C. Midway and Assignee wish to obtain Manufacturer's consent to the
Collateral Assignment and Manufacturer is willing to grant such consent, all
subject to and upon the terms and conditions provided herein.
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties agree as follows:
1. Definitions.
-----------
Capitalized terms used herein and not otherwise defined herein shall have
the meanings assigned to such terms in the Collateral Assignment.
2. Consent of Manufacturer.
-----------------------
(a) Manufacturer hereby acknowledges notice of the Collateral Assignment
and consents, subject to the terms and conditions of this Consent, to assignment
to
1
Assignee of all of Midway's right and interest in and to the Purchase Agreement
pursuant to the Collateral Assignment.
(b) Manufacturer agrees that this Consent constitutes the consent of
Manufacturer as required by the Purchase Agreement.
3. Assignee's Rights under the Collateral Assignment.
-------------------------------------------------
(a) Event of Default. Manufacturer acknowledges that, subject to the
----------------
provisions of Paragraph 4 hereof, upon and after notice to Manufacturer by
Assignee that an Event of Default under the Collateral Assignment has occurred
and is continuing and that it is exercising its rights and remedies under the
Collateral Assignment (and until Manufacturer receives a further written notice
from Assignee to the effect that Midway may again exercise the rights of
"Customer" under the Purchase Agreement), Assignee shall be entitled to make all
demands, give all notices, take all actions and exercise all rights of
"Customer" under and subject to the Purchase Agreement and Midway shall not be
entitled to do so.
(b) Termination of Purchase Agreement by Manufacturer. Manufacturer
-------------------------------------------------
agrees that upon termination of the Purchase Agreement with respect to the
rights related to any one or more of the Aircraft, (i) it shall give Assignee
written notice of such termination; and (ii) Assignee shall have the right,
within ten (10) business days of receipt of such notice, subject to the
provisions of Paragraph 4 of this Consent, to give Manufacturer written notice
of its irrevocable decision to assume all of the obligations of "Customer" under
the terminated Purchase Agreement insofar as it relates to any or all of the
Aircraft by entering into a substitute purchase agreement with Manufacturer,
relating to such Aircraft on terms and conditions substantially equivalent to
those set out in the Purchase Agreement. If Assignee does so notify Manufacturer
and enter into a substitute purchase agreement, then, subject to the terms of
the Collateral Assignment and Paragraphs 4 and 7 of this Consent, Assignee shall
be entitled to make all demands, give all notices, take all actions and exercise
all rights of Customer under and subject to the substitute purchase agreement.
If no notice from Assignee is timely received, Midway and Assignee will be
deemed to have waived all rights thereto. In such case, Manufacturer shall be
entitled but not obliged to purchase from Assignee or Midway, as applicable, all
buyer furnished equipment related to the terminated Aircraft under the Purchase
Agreement, in which Assignee or Midway, as appropriate, has title or an
uncontested right to title.
4. Manufacturer's Purchase Option.
------------------------------
Prior to the exercise of its rights and remedies under Section 4 of the
Collateral Assignment as a result of the occurrence of an Event of Default
thereunder, Assignee shall notify Manufacturer in writing. Manufacturer shall
have the option (the "Manufacturer's Option"), exercisable at any time within
ten (10) Business Days
2
following receipt by Manufacturer of such notice, to purchase Assignee's
interest in the Purchase Agreement (without recourse, representation or warranty
of any kind) insofar as it relates to all of the Aircraft not yet delivered
thereunder at the time of exercise of Manufacturer's Option. In the event that
Manufacturer notifies Assignee that it intends to exercise Manufacturer's
Option, Manufacturer shall purchase Assignee's interest in the Purchase
Agreement (without recourse, representation or warranty of any kind) insofar as
it relates to all, but not less than all, of the Aircraft not yet delivered
thereunder at the time of exercise of Manufacturer's Option by paying to
Assignee within five (5) Business Days following the date of its notice to
Assignee, an amount equaling the aggregate amount of deposits and advances made
under the Purchase Agreement with respect to all of the Aircraft not yet
delivered thereunder up to the time of exercise of Manufacturer's Option. If
Manufacturer fails to exercise Manufacturer's Option during such ten (10)
Business Day period, Assignee may exercise its rights under the Collateral
Assignments.
5. Midway's Waiver and Indemnity; No Release from Obligations.
----------------------------------------------------------
(a) Midway hereby waives any rights which it may have pursuant to contract
or law or otherwise against Manufacturer arising out of, or resulting from, the
exercise by Assignee of its rights and remedies under the Collateral Assignment
or this Consent and agrees to indemnify and hold harmless Manufacturer, its
successors and assigns, and their respective officers, directors and employees
from and against any and all claims, losses or liabilities (including reasonable
attorneys' fees) resulting therefrom, provided, however, that Midway will not
-------- -------
indemnify and hold harmless such parties in the event that such parties are
determined, by a final judgment of a court of competent jurisdiction, to have
acted with gross negligence with regard to the matter for which indemnification
is sought.
(b) Midway hereby agrees, expressly for the benefit of Manufacturer, that
notwithstanding anything contained in the Collateral Assignment to the contrary:
(i) Midway shall at all times remain liable to Manufacturer under the Purchase
Agreement to perform all duties and obligations of the "Customer" thereunder in
respect of the Aircraft to the same extent as if the Collateral Assignment and
this Consent had not been executed, and (ii) the exercise by Assignee of any
rights assigned under the Collateral Assignment shall not release Midway from
any of its duties or obligations to Manufacturer under the Purchase Agreement
except to the extent that such exercise by Assignee shall constitute performance
of such duties or obligations.
6. Notices.
-------
(a) Midway and Assignee agree, expressly for the benefit of Manufacturer,
that for all purposes of the Collateral Assignment, Manufacturer shall not be
deemed to have knowledge of and need not recognize any event, condition, right,
remedy or dispute affecting the interests of Midway or Assignee under the
Collateral Assignment
3
unless and until Manufacturer shall have received written notice thereof from
Assignee addressed to its Vice President-Contracts, Boeing Commercial Airplane
Group, if by mail, at X.X. Xxx 0000, Mail Code 21-34, Xxxxxxx, Xxxxxxxxxx 00000
or to 32-9430 Answerback BOEINGREN RNTN, if by telex. In acting in accordance
with the Purchase Agreement and this Consent, Manufacturer may rely conclusively
upon any such notice.
(b) Manufacturer shall be entitled to rely conclusively upon any notice or
instruction received by it from Assignee pursuant to the Collateral Assignment
or this Consent, and Manufacturer shall have no obligation to inquire as to the
accuracy of such notice or instruction or as to the relative priority of rights
of any person asserting rights in and to the Purchase Agreement and the
Aircraft.
(c) Except as provided in Paragraph 3 of this Consent, unless and until
Assignee shall have notified Manufacturer that it is exercising its rights and
remedies under the Collateral Assignment, Midway shall have all rights and
obligations of "Customer" under the Purchase Agreement and Manufacturer shall
have no duty to consult with or otherwise deal with Assignee concerning the
Purchase Agreement or the Aircraft. Without limiting the generality of the
foregoing, prior to the receipt of Assignee's written notice that it is
exercising its remedies under the Collateral Assignment, as provided in
Paragraph 3(a) hereof, Manufacturer shall have no obligation to inquire as to
whether Midway has complied with the provisions of the Collateral Assignment and
shall be entitled to rely upon any notice, consent, waiver or other action taken
by Midway in connection with the Purchase Agreement.
(d) Notice to Assignee hereunder shall be given by hand, by first class,
certified or registered mail, by a recognized overnight courier service or by
telecopier (confirmed by mail or overnight courier) at General Electric Capital
Corporation, c/o GE Capital Aviation Services, Inc., 000 Xxxx Xxxxx Xxxx,
Xxxxxxxx, Xxxxxxxxxxx 00000, Attention Contracts Leader, Telecopy: (203) 357-
3201.
7. Rights Subject to the Purchase Agreement.
----------------------------------------
(a) Assignee for itself and each of the members of the syndicate (if
applicable) hereby agrees, expressly for the benefit of Manufacturer, that,
notwithstanding anything contained in the Collateral Assignment to the contrary
(and without in any way releasing Midway from any of its duties or obligations
under the Purchase Agreement), insofar as the provisions of the Purchase
Agreement relate to the Aircraft, in exercising any rights under the Purchase
Agreement, or in making any claim with respect to the Aircraft or other things
(including, without limitation, data, documents, training and services)
delivered or to be delivered pursuant to the Purchase Agreement, the terms and
conditions of the Purchase Agreement, including, without limitation, the
DISCLAIMER AND RELEASE and EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES in
---------------------- ---------------------------------------------
Article 11 of Part 2 of Exhibit C to
4
the AGTA which was incorporated by reference into the Purchase Agreement and the
insurance provisions in Article 8.2 of the AGTA which was incorporated by
reference into the Purchase Agreement, shall apply to and be binding upon
Assignee to the same extent as if Assignee had been the original "Customer"
thereunder. Assignee for itself and each of the members of the syndicate (if
applicable) further agrees, expressly for the benefit of Manufacturer, that at
any time and from time to time upon the written request of Manufacturer, it
shall promptly and duly execute and deliver any and all such further assurances,
instruments and documents and take all such further action as Manufacturer may
reasonably request in order to obtain the full benefits of its agreements set
forth in this paragraph.
(b) Except as otherwise expressly provided in this Consent, the execution
and delivery by Manufacturer of this Consent and the performance by Manufacturer
of its obligations hereunder shall not be regarded as having created or imposed
upon Manufacturer any increased or additional obligations or undertakings or any
increased or additional limitations to the rights and duties on its part than
are contained in the Purchase Agreement as a result of entering into this
Consent. Manufacturer shall not be required to divest itself of title to or
possession of the Aircraft or any other thing to be delivered under the Purchase
Agreement until delivery and transfer thereof and payment therefor, as provided
in the Purchase Agreement, or to take any action with respect to the Purchase
Agreement or the Aircraft in any manner inconsistent with applicable law
(including, without limitation, any bankruptcy or other court order, ruling or
finding).
8. Application of Deposits and Advance Payments.
--------------------------------------------
The parties hereto acknowledge and agree that in the event Assignee
exercises its rights under the Collateral Assignment and purchases one or more
of the Aircraft, the deposits and advance payments made under the Purchase
Agreement with respect to the Aircraft shall be applied toward the purchase
price of such Aircraft.
9. Indemnification of Manufacturer by the Assignee and the Members of the
----------------------------------------------------------------------
Syndicate (if applicable).
-------------------------
Assignee agrees to indemnify, defend and hold harmless Manufacturer, its
successors and assigns, and their respective officers, directors and employees
(collectively, the "Indemnitees" and each an "Indemnitee") from and against any
and all claims, losses obligations, damages, penalties, actions, judgments,
suits, costs, expenses and disbursements and liabilities of any kind whatsoever
(including the reasonable fees and disbursements of counsel for such
Indemnitees) which may be imposed on, incurred by, or asserted against such
Indemnitees in any manner resulting from or arising out of the exercise by
Assignee of its rights or remedies under the Collateral Assignment or this
Consent and Agreement, if and only if it is determined by the final judgment of
a court of competent jurisdiction that Assignee was not entitled to exercise
such rights or remedies or that such rights or remedies were exercised contrary
to the provisions of this
5
Consent, the Collateral Assignment or applicable law. Notwithstanding the
previous sentence, Assignee will not indemnify any Indemnitee who has been
determined by the final judgment of a court of competent jurisdiction to have
acted with gross negligence with regard to the matter for which indemnification
is sought. If any Indemnitee hereunder has knowledge of any liability hereby
indemnified against, it shall give prompt written notice thereof to Assignee.
Assignee shall have the right to investigate, defend or compromise any claim for
which indemnification is sought and each Indemnitee hereunder shall cooperate
with the reasonable requests of Assignee with respect thereto.
10. Manufacturer's Representations and Warranties.
---------------------------------------------
Manufacturer hereby represents and warrants to Midway and Assignee that:
(a) Manufacturer is a corporation duly incorporated, validly existing and
in good standing under the laws of the State of Delaware and is duly qualified
to do business as a foreign corporation in the State of Washington.
(b) Manufacturer has all requisite corporate power and authority to
execute, deliver and perform its obligations under this Consent and Agreement
and the execution, delivery and performance of this Consent and Agreement have
been duly authorized by all necessary corporate action on the part of
Manufacturer.
(c) Each of the Purchase Agreement and this Consent and Agreement has been
duly executed and delivered by Manufacturer and constitutes the legally valid
and binding obligation of Manufacturer, enforceable against Manufacturer in
accordance with its terms except as enforceability may be limited by applicable
bankruptcy, insolvency, moratorium and other similar laws affecting the
enforcement of creditors' rights generally and general principles of equity
(regardless of whether such enforceability is at issue in the proceeding in
equity or at law).
(d) Set forth on Schedule I hereto, with respect to each Aircraft, is (1)
the current Scheduled Delivery Date of such Aircraft, (2) the aggregate amount
of Deposit Payments received by the Manufacturer prior to the date hereof with
respect to such Aircraft, (3) the remaining scheduled dates and amounts of
Deposit Payments with respect to such Aircraft due after the date hereof and (4)
the estimated purchase price as of the currently Scheduled Delivery Date for
such Aircraft.
11. Manufacturer's Covenants:
------------------------
Manufacturer hereby covenants to Midway and Assignee that:
6
(a) Manufacturer will remain liable to observe and perform all the
conditions and obligations to be observed and performed by it under the Purchase
Agreement in accordance with the terms and conditions thereof and, subject to
the terms of the Purchase Agreement and the Collateral Assignment, all of
Manufacturer's obligations under the Purchase Agreement will inure to the
benefit of Assignee as though Assignee were named "Customer" thereunder; and
(b) Manufacturer will not assert any lien or claim against any Aircraft
after payment in full for that Aircraft under and in accordance with the
Purchase Agreement.
12. GOVERNING LAW
-------------
THIS CONSENT WILL BE INTERPRETED UNDER AND GOVERNED BY THE LAWS OF THE
STATE OF WASHINGTON, U.S.A., EXCEPT THAT WASHINGTON'S CHOICE OF LAW RULES SHALL
NOT BE INVOKED FOR THE PURPOSE OF APPLYING THE LAW OF ANOTHER JURISDICTION.
13. Counterparts.
------------
This Consent may be executed by the parties in separate counterparts, each
of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
7
IN WITNESS WHEREOF, the parties hereto have caused this Consent to be
executed by their respective officers or agents as of the date first above
written.
MIDWAY: MIDWAY AIRLINES CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx
----------------------
Its: Xxxxxxxx X. Xxxxxx
Senior Vice President
General Counsel
ASSIGNEE: GENERAL ELECTRIC CAPITAL CORPORATION
On behalf of itself and the members of the
syndicate (if applicable)
By: /s/ Xxxxxx Xxx
--------------
Its: Xxxxxx Xxx
Vice President
MANUFACTURER: THE BOEING COMPANY
By: /s/ Xxxxxxxxxxx X. Xxxxxx
-------------------------
Its: Xxxxxxxxxxx X. Xxxxxx
Attorney-in-fact
8
SCHEDULE 1
----------
Midway Airlines Corporation
Aircraft Delivery Dates, Price Escalation and Maximum Aircraft Amount
* Confidential treatment requested for omitted information. Omitted information
has been filed separately with the Commission.
