EXHIBIT 10.30
PURCHASE AGREEMENT ASSIGNMENT [N361ML] (this "Assignment"), dated as
of September 27, 2000, between MIDWAY AIRLINES CORPORATION, a Delaware
corporation (herein called the "Assignor") and FIRST UNION TRUST COMPANY,
NATIONAL ASSOCIATION, a national banking association, not in its individual
capacity but solely as Owner Trustee (herein called the "Assignee").
W I T N E S S E T H :
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WHEREAS, the Assignor and The Boeing Company are parties to the
Purchase Agreement, providing, among other things, for the manufacture by the
Manufacturer and the sale by the Manufacturer to the Assignor of certain
aircraft, engines and related equipment, including the Aircraft; and
WHEREAS, the Assignee wishes to acquire the Aircraft from the
Manufacturer and the Assignor, on the terms and conditions hereinafter set
forth, wishes to assign to the Assignee certain of the Assignor's rights and
interests under the Purchase Agreement and the Assignee is willing to accept
such assignment, as hereinafter set forth; and
WHEREAS, the Manufacturer is willing to execute and deliver to the
Assignee an Aircraft Manufacturer's Consent and Agreement (the "Consent and
Agreement") to the provisions hereof in substantially the form of the Annex
hereto; and
WHEREAS, the Assignee intends to lease to the Assignor, and the
Assignor intends to lease from the Assignee, the Aircraft pursuant to the Lease.
NOW, THEREFORE, in consideration of mutual covenants and agreements
herein contained and for other valuable consideration, receipt of which is
hereby acknowledged by the Assignor, the parties hereto agree as follows:
1. For all purposes of this Assignment, except as otherwise
expressly provided or unless the context otherwise requires, the following terms
shall have the following meanings. All terms used herein in capitalized form
and not otherwise defined herein, shall have the meanings set forth in Appendix
A to the Lease.
"Aircraft" means one Boeing model 737-7BX aircraft bearing
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manufacturer's serial number 30736 including two CFM-56-7B20 aircraft engines
bearing manufacturer's serial numbers 876573 and 876574 respectively
(collectively the "Engines"), installed on such aircraft at the time of
delivery.
"Event of Default" has the meaning given to such term in Section 16 of
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the Lease.
"Lease" means the Lease Agreement [N361ML] dated as of September 27,
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2000 as the same may be amended, modified or supplemented, between the Assignee,
as lessor, and the As xxxxxx, as lessee, providing for the lease of the
Aircraft.
"Manufacturer" means with respect to the Aircraft or Airframe, The
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Boeing Company, and its successors and assigns.
"Purchase Agreement" means that certain Purchase Agreement Number 2235
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dated June 11, 1999 between Manufacturer and Assignor, together with that
certain Aircraft General Terms Agreement AGTA-MID dated as of June 11, 1999
("AGTA-MID") between Manufacturer and Assignor, in each case including all
Exhibits, Appendices, Tables, and Letter Agreements (excluding, in the case of
the Purchase Agreement, Supplemental Exhibit EE1, Letter Agreements 6-1162-CPJ-
308 (Aircraft Schedule Reliability Program), 6-1162-CPJ-311 (Maintenance Cost
Protection), 6-1162-CPJ-313 (Basic Credit Memorandum) and 6-1162-CPJ-316
(Special Matters)).
2. Subject to the terms and conditions of this Assignment, Assignor
does hereby sell, assign and convey to Assignee, its successors and permitted
assigns all of Assignor's rights in and to the Purchase Agreement as and to the
extent that the same relate to the Aircraft and the purchase and operation
thereof (except to the extent reserved below), including, without limitation,
all warranty and indemnity provisions in the Purchase Agreement with respect to
the Aircraft and all claims thereunder in respect of the Aircraft, and any and
all rights of the Assignor to compel performance of the terms of the Purchase
Agreement in respect of the Aircraft, reserving to Assignor, however, (i) all
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the Assignor's rights and interests in and to the Purchase Agreement to the
extent that each relates to aircraft other than the Aircraft and the purchase
and operation of such aircraft and to the extent that each relates to any other
matters not directly pertaining to the Aircraft, (ii) any and all of those
portions of the Purchase Agreement noted as so excluded in the definition of
Purchase Agreement, (iii) so long as the Aircraft shall be subject to the Lease
and no Event of Default shall have occurred and be continuing and the Assignee
or the Indenture Trustee (as assignee of the Assignee) has not commenced the
exercise remedies set forth in Section 17 of the Lease, all rights of the
Assignor to obtain services, training, product support, promotional support,
publications or demonstrations and test flights pursuant to the Purchase
Agreement, and (iv) with respect to the Aircraft, all of Assignor's rights with
respect to payments made by Assignor pursuant to the Purchase Agreement
(including without limitation any post-delivery adjustments to the purchase
price or amounts credited or to be credited by the Manufacturer to Assignor).
The foregoing assignment is subject to the conditions that (x) concurrently with
its execution, Assignee shall lease the Aircraft to Assignor under the Lease and
(y) the Manufacturer executes and delivers the Consent and Agreement.
Unless an Event of Default shall have occurred and be continuing and
the Assignee or the Indenture Trustee (as assignee of the Assignee) shall have
commenced the exercise of remedies set forth in Section 17 of the Lease, and
subject to the provisions hereof, the Assignee shall and it does hereby
authorize the Assignor during the Term as Lessee under the Lease, to the
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exclusion of the Assignee, to exercise in the Assignor's name, all rights and
powers of the "Customer" under the Purchase Agreement and any warranty with
respect to the Aircraft made by the Manufacturer or any subcontractor or
supplier, and any other claims against the Manufacturer or any such
subcontractor or supplier with respect to the Aircraft, except that the Assignor
may not enter into any change, order or other amendment, modification or
supplement to the Purchase Agreement insofar as it relates to the Aircraft
without the written consent of the Assignee if such change, order, amendment,
modification or supplement would result in any recission, cancellation or
termination of the Purchase Agreement in respect to the Aircraft or otherwise
materially adversely affect the rights assigned hereunder to the Assignee. Any
recovery or benefit resulting from enforcement of any warranty, indemnity or
claim shall be applied to remedy any defect in respect of the Aircraft (or to
reimburse the Assignor for its remedying of any such defect) and the balance to
be paid to the Assignor or the Assignee, as their interests may appear. Assignee
hereby accepts the foregoing assignment subject to the terms hereof.
3. It is expressly agreed that, anything herein contained to the
contrary notwithstanding: (a) the Assignor shall at all times remain liable to
the Manufacturer under the Purchase Agreement to perform all the duties and
obligations of the "Customer" thereunder to the same extent as if this
Assignment had not been executed; (b) the exercise by the Assignee of any of the
rights assigned hereunder shall not release the Assignor from any of its duties
or obligations to the Manufacturer under the Purchase Agreement except to the
extent that such exercise by the Assignee shall constitute performance of such
duties and obligations; and (c) none of the Indenture Trustee, the Owner
Participant, the Pass-Through Trustee, the Subordination Agent, the Holders and
the Trust Company nor, except as provided in the next paragraph, the Assignee,
shall have any obligation or liability under the Purchase Agreement by reason
of, or arising out of, this Assignment or be obligated to perform any of the
obligations or duties of the Assignor under the Purchase Agreement or to make
any payment or to make any inquiry as to the sufficiency of any payment received
by it or to present or file any claim or to take any other action to collect or
enforce any claim for any payment assignment hereunder.
Without in any way releasing the Assignor from any of its duties or
obligations under the Purchase Agreement, the Assignee confirms for the benefit
of the Manufacturer that, 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
Materials, training and services) delivered or to be delivered pursuant to the
Purchase Agreement, the terms and conditions of the Purchase Agreement
(including but not limited to the disclaimer and release/exclusion of
liabilities provisions in Exhibit C, Part 2, Article 11 and the insurance
provisions in Article 8 of AGTA-MID) shall apply to, and be binding upon, the
Assignee to the same extent as the Assignor. Nothing contained herein shall in
any way diminish or limit the provisions of the Assignor's indemnities in the
Lease and the Participation Agreement and in the Purchase Agreement with respect
to any liability of the Assignee to the Manufacturer in any way relating to or
arising out of this Assignment.
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Nothing contained herein shall subject the Manufacturer to any
liability to which it would not otherwise be subject under the Purchase
Agreement or modify in any respect the contract rights of the Manufacturer under
the Purchase Agreement, or require Manufacturer to divest itself of title to or
possession of the Aircraft or other things until delivery thereof and payment
therefor as provided therein.
At any time after an Event of Default shall have occurred and be
continuing and the Assignee shall have commenced the exercise of remedies set
forth in Section 17 of the Lease, the Assignee and its successors and permitted
assigns shall, to the exclusion of the Assignor, be entitled to assert and
enforce all rights and claims of the "Customer" under the Purchase Agreement
assigned hereunder (including the right to receive payments), and the Assignor
agrees to cooperate with the Assignee in asserting such rights and claims, and
the Assignor does hereby constitute, effective at any time after an Event of
Default shall have occurred and be continuing and the Assignee shall have
commenced the exercise of remedies set forth in Section 17 of the Lease, the
Assignee, its successors and permitted assigns, the Assignor's true and lawful
attorney, irrevocably, with full power (in the name of the Assignor or
otherwise) to ask, require, demand, receive, compound and give acquittance for
any and all monies and claims for monies due or to become due under, or arising
out of, the Purchase Agreement in respect of the Aircraft, to the extent that
the same have been expressly as signed by this Assignment and for such period
as the Assignee may exercise rights with respect thereto under this Assignment,
to endorse any checks or other instruments or orders in connection therewith and
to file any claims or take any action or institute (or, if previously commenced,
assume control of) any proceedings and to obtain any recovery in connection
therewith that the Assignee may deem to be necessary or advisable with respect
to such monies and claims for monies.
For all purposes of this Assignment, the Manufacturer shall not be
deemed to have knowledge of and need not recognize nor take any action with
respect to the occurrence of any Event of Default, the declaration of an Event
of Default, or the exercise of remedies set forth in Section 17 of the Lease by
the Assignee, the discontinuance of any Event of Default or the Aircraft's
becoming no longer subject to the Lease or the Assignor's no longer being
entitled to possession of the Aircraft unless and until the Manufacturer shall
have received from the Assignee written notice thereof and the Manufacturer may
act with acquittance and conclusively rely upon any such notice.
4. The Assignor agrees that at any time and from time to time, upon
the written request of the Assignee, the Assignor, at its own cost and expense,
will promptly and duly execute and deliver any and all such further instruments
and documents and take such further action as the Assignee may reasonably
request in order to obtain the full benefits of this Assignment and of the
rights and powers herein granted.
5. The Assignor does hereby represent and warrant that (a) the
Assignor has furnished to the Assignee a true and complete copy of the Purchase
Agreement (with certain confidential, proprietary information deleted therefrom
in the form such Purchase Agreement was filed with the Securities Exchange
Commission), (b) the Assignor is not in default under the
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Purchase Agreement, and (c) the Purchase Agreement is in full force and effect
as to the Assignor and is enforceable against the Assignor in accordance with
its terms. The Assignor further represents and warrants that it has, with the
authorized execution of the Consent and Agreement, received all necessary
consents to the assignment and transfer contemplated herein.
6. The Assignor does hereby represent and warrant that it has not
assigned or pledged, and hereby covenants that it will not assign or pledge, so
long as this Assignment shall remain in effect, the whole or any part of the
rights hereby assigned or any of its rights with respect to the Aircraft under
the Purchase Agreement not assigned hereby, to anyone other than the As signee.
The Assignor agrees that it will not enter into any agreement with the
Manufacturer that would materially and adversely affect the rights of the
parties under the Purchase Agreement insofar as it relates to the Aircraft or
waive any rights thereunder.
7. So long as the Aircraft is leased to the Assignor under the Lease
and unless an Event of Default shall have occurred and be continuing and the
Assignee or the Indenture Trustee (as assignee of the Assignee) shall have
commenced the exercise of remedies under Section 17 of the Lease, the Assignee
agrees that it will not enter into any agreement with the Manufacturer that
would amend, modify, rescind, cancel or terminate the Purchase Agreement insofar
as it relates to the Aircraft or waive any rights of Assignor thereunder without
the prior written consent of the Assignor.
8. This Assignment is executed by the Assignor and the Assignee
concurrently with the execution and delivery of the Lease.
9. This Assignment shall be binding upon and shall inure to the
benefit of the Assignor, the Assignee and their respective successors and
permitted assigns.
10. Neither this Assignment nor any of the terms hereof may be
terminated, amended, supplemented, waived or modified orally, but only by an
instrument in writing signed by the parties hereto and consented to by the
Manufacturer.
11. This Assignment may be executed by the parties hereto 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.
12. This Assignment shall in all respects be governed by, and
construed in accordance with, the laws of the State of New York, including all
matters of construction, validity and performance. This Assignment is being
delivered in the State of New York.
13. Except as otherwise expressly provided herein, notice hereunder
may be given, and shall be deemed to have been given, as provided in Section
12.01 of the Participation Agreement.
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14. First Union Trust Company, National Association is entering into
this Assignment solely as Owner Trustee under the Trust Agreement and not in its
individual capacity and neither First Union Trust Company, National Association
nor any entity acting as successor Owner Trustee or additional Owner Trustee
under the Trust Agreement shall be personally liable for, or for any loss in
respect of, any of the statements, representations, warranties, agreements or
obligations stated to be those of the Assignee hereunder, as to which all
interested parties shall look solely to the Trust Estate, except to the extent
expressly provided otherwise in the other Operative Agreements, provided
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however, that nothing in this Section 14 shall be construed to limit in scope or
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substance the liability of First Union Trust Company, National Association or
any entity acting as successor Owner Trustee or additional Owner Trustee under
the Trust Agreement in its individual capacity for the consequences of its own
willful misconduct or gross negligence or (in receiving, handling or remitting
funds) its simple negligence, or the inaccuracy or breach of its
representations, warranties or covenants made in such capacity in any other
Operative Agreements.
15. Pursuant to the Indenture, the Assignee has assigned and pledged
to the Indenture Trustee, as security for the Equipment Notes to be issued
thereunder, all of the Assignee's right, title and interest in and to this
Assignment and the Purchase Agreement. The Assignor acknowledges and consents
to such assignment.
[Remainder of page left intentionally blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment to be
duly executed as of the day and year above written.
MIDWAY AIRLINES CORPORATION
By: /s/ Xxxxxxxx X. Xxxxxx
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Name: Xxxxxxxx X. Xxxxxx
Title: Senior Vice President and General Cousel
FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual capacity, except
as otherwise expressly provided herein but solely as
Owner Trustee, as Assignee
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
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Pursuant to the Indenture, the Assignee has assigned and pledged to the
undersigned Indenture Trustee, as security for the Equipment Notes to be issued
thereunder, all of the Assignee's right, title and interest in and to the
Purchase Agreement under the forgoing Purchase Agreement Assignment. The
undersigned Indenture Trustee agrees to the terms of the foregoing Purchase
Agreement Assignment and agrees that its rights and remedies under the Indenture
shall be subject to the terms and conditions of the foregoing Purchase Agreement
Assignment, including the second paragraph of Clause 3 thereof.
ALLFIRST BANK, as Indenture Trustee
By: ____________________________________
Name:
Title:
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ANNEX
THE BOEING COMPANY
AIRCRAFT MANUFACTURER'S CONSENT AND AGREEMENT [N361ML]
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The undersigned, The Boeing Company ("Manufacturer"), hereby acknowledges
notice of and consents to the terms of the foregoing Purchase Agreement
Assignment [N361ML] (the "Assignment") dated as of September 27, 2000, between
MIDWAY AIRLINES CORPORATION, a Delaware corporation (the "Assignor") and FIRST
UNION TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association, not
in its individual capacity but solely as Owner Trustee (the "Assignee"). The
capitalized terms used hereinafter being defined as such terms are defined in
the Assignment.
The Manufacturer hereby confirms to Assignor and Assignee that
(i) the Assignee shall not be liable for any of the obligations or duties
of the Assignor under the Purchase Agreement, nor shall the Assignment give rise
to any duties or obligations whatsoever on the part of the Assignee owing to the
Manufacturer except for the Assignee's agreement in the Assignment to the effect
that in exercising any rights under the Purchase Agreement with respect to the
Aircraft, or in making any claim with respect to the Aircraft or other things
(including Materials, training and services) delivered or to be delivered
pursuant to the Purchase Agreement, the terms and conditions of the Purchase
Agreement shall apply to and be binding upon the Assignee to the same extent as
the Assignor;
(ii) the Manufacturer consents to sale of the Aircraft to the Assignee;
(iii) the Manufacturer consents to the mortgage of, and grant of a
security interest in, all of the Assignee's right, title and interest in and to
the Aircraft and the Assignment by the Assignee pursuant to the Indenture;
(iv) pursuant to and in accordance with the provisions of the Purchase
Agreement, the Manufacturer consents to the assignment of Assignor's interest in
the Purchase Agreement as it relates to the Aircraft to Assignee pursuant to the
Assignment;
(v) all representations, warranties, indemnities and agreements of
Manufacturer under the Purchase Agreement with respect to the Aircraft shall
inure to the benefit of Assignee to the same extent as if originally named the
"Customer" therein, except as otherwise provided in the Assignment; and
(vi) during the Term the Manufacturer will continue to pay all amounts and
provide all goods and services to Assignor which it may be required to pay or
provide in respect of the Aircraft under the Purchase Agreement unless and until
the Manufacturer shall have then received written notice in the manner specified
in Section 3 of the Assignment from Assignee that an Event of
Default has occurred and is continuing and the Assignee or the Indenture Trustee
(as assignee of the Assignee) has commenced the exercise of remedies set forth
in Section 17 of the Lease, whereupon the Manufacturer will pay such amounts or
provide such goods and services directly to the Assignee unless and until the
Manufacturer shall have then received written notice in the manner specified in
Section 3 of the Assignment from Assignee that no such Event of Default is
continuing and remains unremedied, whereupon the Manufacturer will pay such
amounts or provide such goods and services to Assignor.
Any notice to be delivered to the Manufacturer as contemplated by the
preceding sentence shall be addressed to the Manufacturer as follows:
Boeing Commercial Airplane Group
P. O. Box 3707
Mail Code 21-34
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Vice President - Contracts
The Manufacturer hereby represents and warrants that: (i) the Manufacturer
is a corporation duly organized and existing in good standing under the laws of
State of Delaware; (ii) the making and performance of the Purchase Agreement and
this Consent and Agreement have been duly authorized by all necessary corporate
action on the part of the Manufacturer, do not require any stockholder or other
approval, and do not contravene the Manufacturer's charter documents or any
indenture, credit agreement or other contractual agreement to which the
Manufacturer is a party or by which it is bound, and the making of the Purchase
Agreement and this Consent and Agreement does not contravene, and to the best of
the Manufacturer's knowledge, the Manufacturer's performance of the Purchase
Agreement and this Consent and Agreement does not contravene any law binding on
the Manufacturer; and (iii) each of the Purchase Agreement and this Consent and
Agreement constitutes a legal, valid and binding obligation of the Manufacturer
enforceable against the Manufacturer in accordance with its respective terms,
except that the enforceability of each may be (a) limited by applicable
bankruptcy, reorganization, insolvency, moratorium or other similar laws
affecting the enforceability of creditors' rights generally and (b) subject to
the application of equitable principles and the availability of equitable
remedies.
The Manufacturer's consent to the Assignment is subject to and conditional
upon the agreement of Assignor and Assignee that nothing in the Assignment shall
vary or modify the rights and obligations of the Manufacturer under the Purchase
Agreement and that all limitations or exclusions on liability provisions under
the Purchase Agreement for the benefit of the Manufacturer and its Affiliates
shall apply to Assignee and to the Assignor as if the Assignor remained the
Customer under the Purchase Agreement.
This Consent and Agreement shall be governed by, and construed in
accordance with, the law of the State of Washington.
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IN WITNESS WHEREOF, the Manufacturer has caused this Aircraft
Manufacturer's Consent and Agreement to be duly executed as of __________, 2000.
THE BOEING COMPANY
By:____________________________________
Name:
Title: Attorney-in-Fact
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