Note to Exhibit 10.8
The following Purchase Agreement Assignment is substantially
identical in all material respects to three additional Purchase Agreement
Assignments except as follows:
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Owner Participant Date Aircraft (Tail No.)
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NCC Charlie Company* September 10, 1998* N575ML*
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NCC Charlie Company September 10, 1998 N576ML
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General Electric Capital Corporation November 10, 1998 N577ML
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* Filed document
PURCHASE AGREEMENT ASSIGNMENT [N576ML], dated as of September 10,
1998, 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 :
WHEREAS, the Assignor and Manufacturer 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 Bombardier
Capital Inc. (the "Seller") 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 Assignee intends to lease to the Assignor, and the
Assignor intends to lease from the Assignee, the Aircraft pursuant to the lease
agreement dated as of September 10, 1998 as the same may be amended, modified or
supplemented, between the Assignee, as lessor, and the Assignor, as lessee,
providing for the lease of the Aircraft (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, all terms used
herein in capitalized form and not otherwise defined herein, shall have the
meanings set forth in Appendix A to the Lease.
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
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) 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 (iii) 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 other than those arising from events
which would have the effect of decreasing the Fair Market Sales Value of the
Aircraft at the end of the Term). The foregoing assignment is subject to the
conditions that (i) concurrently with its execution, Assignee shall lease the
Aircraft to Assignor under the Lease and (ii) the written consent of the
Manufacturer to such assignment be provided in the form attached hereto.
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
exclusion of the Assignee, to exercise in the Assignor's name, all rights and
powers of the "Buyer" 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 recision, cancellation or termination of the Purchase Agreement in
respect to the Aircraft or otherwise materially adversely affect Assignee's
rights assigned hereunder. 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 "Buyer" 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) except as provided
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herein, the Assignee, the Indenture Trustee, the Loan Participant, the Owner
Participant, the Pass-Through Trustee, the Subordination Agent, the Holders or
the Trust Company shall not 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
data, documents, 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.
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.
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 or the Indenture Trustee (as
assignee of 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 "Buyer" 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 or the Indenture Trustee (as assignee of the
Assignee) shall have commenced the exercise of remedies set forth in Section 17
of the Lease, the Assignee, its successors and 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 assigned 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.
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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 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 Assignee.
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 the 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.
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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.
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
however, that nothing in this Section 12 shall be construed to limit in scope or
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. In the Indenture, First Union Trust Company, National
Association (the "Owner Trustee") has assigned and pledged with the Indenture
Trustee, as security for the Equipment Notes to be issued thereunder, all of the
Owner Trustee's right, title and interest in and to the Purchase Agreement under
this Assignment. The Assignor acknowledges and consents to such assignment.
* * *
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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,
as Assignor
By:
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Title:
FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, not in its individual capacity
but solely as Owner Trustee, as Assignee
By:
-----------------------------------------
Title:
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BOMBARDIER INC.
AIRCRAFT MANUFACTURER'S CONSENT AND AGREEMENT [N576ML]
The undersigned, Bombardier Inc. ("Manufacturer"), hereby
acknowledges notice of and consents to the terms of the foregoing Purchase
Agreement Assignment [N576ML] (the "Assignment") dated as of September 10, 1998,
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 data, documents, 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 by the
Seller to the Assignee; (iii) the Manufacturer consents to the lease of the
Aircraft by the Assignee to the Assignor under the Lease; (iv) the Manufacturer
consents to the mortgage of, and grant of a security interest in, all of the
Owner Trustee's right, title and interest in and to the Aircraft and this
Assignment by the Owner Trustee pursuant to the Indenture; (v) 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; (vi) 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 "Buyer" therein,
except as otherwise provided in the Assignment; and (vii) 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:
Bombardier Aerospace
Regional Aircraft
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Director, Contracts Americas
The Manufacturer hereby represents and warrants that: (i) the
Manufacturer is a corporation duly organized and existing in good standing under
the laws of Canada; (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 Certificate of
Incorporation or By-Laws 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 Buyer under the Purchase Agreement.
* * *
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This Aircraft Manufacturer's Consent and Agreement shall be governed
by, and construed in accordance with, the law of the State of New York, U.S.A.
BOMBARDIER INC.
By:
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Name:
Title:
Dated as of September 10, 1998
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