Exhibit 10.31
ENGINE WARRANTY ASSIGNMENT
[N361ML]
between
MIDWAY AIRLINES CORPORATION
and
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION,
not in its individual capacity
but solely as Owner Trustee
and
CFM INTERNATIONAL, INC.
ENGINE MANUFACTURER'S CONSENT AND AGREEMENT
THIS ENGINE WARRANTY ASSIGNMENT [N361ML] (the "Assignment") is made
this 27/th/ day of September, 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").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Assignor and CFM International, Inc. are parties to the
General Terms Agreement, providing, among other things, for product support,
including warranties for the support, of the Engines covered thereby and related
equipment given to the Assignor by the Engine Manufacturer;
WHEREAS, the Assignee wishes to acquire certain rights and interests
in and to warranties relating to the Engines and the Assignor, on the terms and
conditions hereinafter set forth, is willing to assign to the Assignee such
rights and interests of the Assignor in and to such warranties, and the Assignee
is willing to accept such assignment, as hereinafter set forth; and
WHEREAS, the Engine Manufacturer is willing to execute and deliver to
the Assignee an Engine Manufacturer's Consent and Agreement (the "Engine
Manufacturer's Consent and Agreement") to the provisions hereof in substantially
the form of the Annex hereto.
IT IS HEREBY AGREED as follows:
In consideration of the mutual covenants herein contained and of the
Assignee's agreement in the Aircraft Purchase Agreement Assignment to pay the
purchase price for the Aircraft on the terms and conditions therein stated, the
parties hereto agree as follows:
1. Definitions
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1.1. 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:
"Aircraft" means one Boeing model 737-700 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.
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"Aircraft Purchase Agreement" means that certain Purchase Agreement
---------------------------
Number 2235 dated June 11, 1999 between Manufacturer and Assignor, together with
that certain Aircraft General Terms Agreement AGTA-MID dated as of June 11, 1999
between Manufacturer and Assignor and that certain Customer Service General
Terms Agreement dated as of June 11, 1999 between Manufacturer and Assignor, in
each case including all Exhibits, Appendices, Tables, and Letter Agreements
(excluding, in the case of the Aircraft Purchase Agreement, Supplemental Exhibit
EE1, Letter Agreements 6-1162-CPJ-308 (Schedule Reliability), 6-1162-CPJ-311
(Maintenance Cost Protection) and 6-1162-CPJ-316 (Special Matters); but
including, without limitation, Letter Agreement 6-1162-CPJ-313 (Basic Credit
Memorandum)).
"CFM56 Warranty" means the CFM56 Product Support Plan from the Engine
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Manufacturer, as contained in Exhibit B of the General Terms Agreement,
including, without limitation, the Engine Warranty contained in Section II,
Subsection A of Exhibit B thereto, the Parts Warranty contained in Section II,
Subsection B of Exhibit B thereto, the Ultimate Life Warranty contained in
Section II, Subsection C of Exhibit B thereto, and the Campaign Change Warranty
contained in Section II, Subsection D of Exhibit B thereto; but excluding the
special guarantees contained in Section II, Subsection J of Exhibit B thereto.
"Engine Manufacturer" means CFM International, Inc., as Delaware
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corporation, and its successors and assigns.
"Event of Default" has the meaning given to such term in Section 16 of
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the Lease.
"General Terms Agreement" means certain General Terms Agreement No. 6-
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13593 dated as of June 11, 1999 by and between the Engine Manufacturer and the
Assignor, including all Exhibits, Appendices, Tables and Letter Agreements with
respect thereto, excluding Letter Agreement No. 1, the special guarantees
contained in Section II, Subsection J of Exhibit B thereto, and Attachments A,
C, D and E thereto.
"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 ▇▇▇▇▇▇, 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 Assignment" means the Purchase Agreement
-----------------------------
Assignment [N361ML] dated as of September 27, 2000, between the Assignor and
Assignee as the same may be amended, modified or supplemented from time to time,
together with the Consent and Agreement thereto executed by the Manufacturer.
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"Warranties" means all warranties or assurances of any kind whatsoever
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relating to the Engines and related equipment manufactured by the Engine
Manufacturer contained in the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and as limited by the applicable
terms of the General Terms Agreement and excluding any and all those portions of
the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and General Terms Agreement noted as so excluded in the
definitions of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and General Terms Agreement.
1.2. All other capitalized terms used and not otherwise defined
herein shall have the respective meanings set forth in Appendix A to the Lease
(including definitions incorporated therein by reference to another document).
2. Assignment and Authorization of Assignor
----------------------------------------
2.1. The Assignor does hereby sell, assign, transfer and set over
unto the Assignee, its successors and permitted assigns, all of the Assignor's
rights and interests in and to the Warranties as and to the extent that the same
relate to the Engines and the operation thereof, except as and to the extent
expressly reserved below, including, without limitation, in such assignment, (a)
all claims for damages in respect of any Engine arising as a result of any
default by the Engine Manufacturer in respect of the Warranties under the ▇▇▇▇▇
▇▇▇▇▇▇▇▇ and/or the General Terms Agreement, and (b) any and all rights of the
Assignor to compel performance of the terms of the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and/or the
General Terms Agreement in respect of the Warranties; reserving exclusively to
the Assignor, however, (i) all of the Assignor's rights and interests in and to
the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and/or the General Terms Agreement as and to the extent that
the same relate to engines other than the Engines and the purchase and operation
of such engines, and (ii) any and all of those portions of the General Terms
Agreement noted as so excluded in the definition of General Terms Agreement. The
Assignee hereby accepts such assignment.
2.2. Notwithstanding the foregoing, 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, the Assignee hereby authorizes the Assignor,
to exercise in the Assignor's name all rights (including without limitation the
right to retain any damages paid by the Engine Manufacturer in respect of the
Warranties) in respect of the Warranties, except that: the Assignor may not
enter into any change order or other amendment, modification or supplement to
the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and/or the General Terms Agreement in respect of any
Warranties without the prior written consent or countersignature of the Assignee
if such change, order, amendment, modification or supplement would result in any
rescission, cancellation or termination of the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and/or the General
Terms Agreement (to the extent it relates to any applicable Warranties) or
otherwise materially adversely affect the rights assigned to the Assignee
hereunder.
2.3. For all purposes of this Assignment, the Engine Manufacturer
shall not be deemed to have knowledge of and need not recognize the occurrence,
the continuance or the discontinuance of any Event of Default under the Lease,
or the exercise of remedies set forth in
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Section 17 of the Lease by the Assignee or the Indenture Trustee (as assignee of
the Assignee), unless and until the Engine Manufacturer shall have received from
the Assignee written notice thereof addressed to the Engine Manufacturer at: CFM
International, Inc., P. O. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention:
Director, Commercial Contracts, Facsimile: ▇▇▇-▇▇▇-▇▇▇▇, and, in acting in
acquittance with the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, the General Terms Agreement and this
Assignment, the Engine Manufacturer may conclusively rely on such notice. Until
such time as notice shall have been given by the Assignee to the Engine
Manufacturer 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, the Engine
Manufacturer shall with respect to the Warranties deal solely and exclusively
with the Assignor. The Assignee shall promptly after all such Events of Default
shall have been remedied, give written notice of the same to the Engine
Manufacturer at the address as provided above, with a copy to the Assignor at
its address for notices set forth in Section 23(a) of the Lease, and upon the
Engine Manufacturer's receipt of such notice, the Engine Manufacturer shall, in
the absence of a notice from the Assignee to the Engine Manufacturer 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, resume the sole and exclusive
dealings with the Assignor authorized by this Clause 2 and by the Engine
Manufacturer's Consent and Agreement.
2.4. The assignment contained herein shall apply only to the Engines
(as installed on the Aircraft at the time of delivery) and shall not extend to
any replacement or substitute engine, unless and until the Engine Manufacturer
has received written notice thereof. The Engine Manufacturer shall not be
deemed to have knowledge of the replacement or substitution of an Engine due to
a Failure (as such term is defined in the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, excluding normal wear
and tear and normal deterioration and the breakage, malfunction or injury to a
Part (as defined in the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇) caused by the improper installation,
maintenance, misuse, or neglect by Assignor or a third party), damage or loss,
until notified of such Failure, damage or loss. Notice shall be sent to the
Engine Manufacturer at: CFM International, Inc., P. O. ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Director, Commercial Contracts, Facsimile: 513-243-
9762. Such notice shall contain the serial number of the replaced or
substituted Engine, the serial number of the new engine and confirmation that
such new engine shall be subject to the terms and conditions of this Assignment.
3. Assignor's Continuing Obligations
---------------------------------
3.1. It is expressly agreed that, anything herein contained to the
contrary notwithstanding: (a) on or prior to the Delivery Date for the
Aircraft, the Assignor will perform its obligations with respect to the Engines
to be performed by it on or before such Delivery Date, (b) the Assignor shall at
all times remain liable to the Engine Manufacturer under the terms and
conditions of the General Terms Agreement to perform all duties and obligations
of the Assignor thereunder to the same extent as if this Assignment had not been
executed, (c) the exercise by the Assignee of any of the rights assigned
hereunder shall not release the Assignor from any of its duties or
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obligations to the Engine Manufacturer under the General Terms Agreement, except
to the extent that such exercise by the Assignee shall constitute performance of
such duties and obligations, (d) after the Delivery Date for the Aircraft, the
Assignor will exercise its rights and perform its obligations under the General
Terms Agreement in respect of the Engines to the extent that such rights and
obligations have not been assigned hereunder, and (e) none of the Indenture
Trustee and Owner Participant nor, except as specifically provided in Clause 3.2
with respect to the Assignee, the Assignee shall have any obligation or
liability under the General Terms 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 General Terms 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 assigned hereunder.
3.2. Anything contained in this Assignment to the contrary
notwithstanding (but without in any way releasing the Assignor from any of its
duties or obligations under the General Terms Agreement), the Assignee confirms
expressly for the benefit of the Engine Manufacturer that, in exercising any
rights in and to the Warranties, or in making any claim with respect thereto,
the applicable terms and conditions of the General Terms Agreement, including
Article XIII (Limitation of Liability) and the Warranties 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
Aircraft Purchase Agreement with respect to any liability of the Assignee to the
Manufacturer in any way relating to or arising out of the Purchase Agreement
Assignment.
3.3. Nothing contained herein shall subject the Engine Manufacturer
to any obligation or liability to which it would not otherwise be subject under
the General Terms Agreement or modify in any respect the contract rights of the
Engine Manufacturer thereunder or subject the Engine Manufacturer to any
multiple or duplicative obligation or liability under the General Terms
Agreement or limit any rights of set-off the Engine Manufacturer may have
against the Assignor under applicable law. No further assignment of any
remaining Warranties, including but not limited to assignments for security
purposes, are permitted without the express prior written consent of the Engine
Manufacturer.
3.4. 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 Assignor does hereby constitute 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 General Terms Agreement in respect of such Engine, but only 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
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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.
3.5. So long as the Engine Manufacturer acts in good faith in
accordance with this Assignment, the Engine Manufacturer may rely conclusively
on any notice given by the Assignee hereunder without inquiring as to the
accuracy of, or the entitlement of the Assignee to give, such notice.
4. Further Assurance
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4.1. 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. Representations, Warranties and Covenants
-----------------------------------------
5.1. The Assignor does hereby represent and warrant that (a) the
Assignor has furnished to the Assignee a true and complete copy of the General
Terms Agreement (excluded from which are those portions noted as so excluded in
the definition thereof), (b) the Assignor is not in default under the General
Terms Agreement, and (c) the General Terms Agreement and the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ are
in full force and effect as to the Assignor and are enforceable against the
Assignor in accordance with their respective terms. The Assignor further
represents and warrants that it has, with the authorized execution of the Engine
Manufacturer's Consent and Agreement, received all necessary consents to the
assignment and transfer contemplated herein.
5.2. 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
Warranties hereby assigned to anyone other than the Assignee.
5.3. The Assignee agrees that it will not enter into any agreement
with the Engine Manufacturer that would amend, modify, rescind, cancel or
terminate the General Terms Agreement and/or the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in respect of
the Warranties or take other action to amend, modify, rescind, cancel or
terminate any of the Assignor's rights in respect of the Warranties, without the
prior written consent of the Assignor, except if the Engine Manufacturer shall
have been notified in writing by the Assignee that an Event of Default has
occurred and is continuing and the Assignee has commenced the exercise of
remedies set forth in Section 17 of the Lease.
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5.4. Each of the Assignor, the Assignee and the Engine Manufacturer
agrees that neither this Assignment nor the attached and incorporated Engine
Manufacturer's Consent and Agreement, nor any of the terms or provisions of this
Assignment or the Engine Manufacturer's Consent and Agreement, may be amended,
extended, modified, supplemented, terminated or waived orally. Any and all
amendments, extensions, modifications, supplements, terminations or waivers must
be presented to each of the other parties in writing, and be signed by the party
against whom the enforcement of such amendment, modification, supplement,
termination or waiver is sought to be charged.
6. Confidentiality
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6.1. The Assignee agrees, that it will not, without the prior written
consent of the Engine Manufacturer, disclose, directly or indirectly, to any
third party any terms of the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ disclosed to it in writing by the
Engine Manufacturer; provided that (a) the Assignee may use, retain and disclose
any such information to its special counsel and public accountants and to bank
examiners and auditors, each of whom shall be obligated to not further disclose
such terms, (b) the Assignee may disclose any such information as required by
applicable laws or governmental regulations, provided that the Assignee shall
first, to the extent practicable, have given the Engine Manufacturer reasonable
opportunity, at the Engine Manufacturer's cost and expense, to obtain a
protective order or other reasonably satisfactory assurance of confidential
treatment for the information required to be disclosed, (c) to the extent that
the Assignee may have received a subpoena or other written demand under color of
legal right for such information, the Assignee may disclose such information,
but it shall first, as soon as practicable upon receipt of such demand and to
the extent permitted by applicable laws, furnish a copy thereof to the Assignor
and to the Engine Manufacturer, and the Assignee shall afford the Assignor and
the Engine Manufacturer reasonable opportunity, at the moving person's cost and
expense, to obtain a protective order or other reasonably satisfactory assurance
of confidential treatment for the information required to be disclosed, and (d)
the Assignee may disclose any such information to any potential purchaser of the
Aircraft and/or the Engine (subject to execution by such prospective purchaser
of a written confidentiality statement setting forth the same or substantially
similar terms as those referred to in this paragraph).
7. Miscellaneous
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7.1. 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.
7.2. 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.
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7.3. 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 Clause 7.3 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.
7.4. Pursuant to the Indenture, dated as of September 27, 2000
between Assignee and Allfirst Bank, as Indenture Trustee (the "Indenture
Trustee"), the Assignee has assigned and pledged to the Indenture Trustee, as
security for the Equipment Notes to be issued thereunder with respect to the
Aircraft, all of the Assignee's right, title and interest in and to this
Assignment and the Warranties. 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 Engine
Warranty Assignment to be duly executed as of the day and year first above
written.
MIDWAY AIRLINES CORPORATION,
as Assignor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President and General
Counsel
FIRST UNION TRUST COMPANY, NATIONAL ASSOCIATION,
not in its individual capacity but solely as Owner
Trustee,
as Assignee
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
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ANNEX
CFM INTERNATIONAL, INC.
ENGINE MANUFACTURER'S CONSENT AND AGREEMENT [N361ML]
----------------------------------------------------
The undersigned, CFM INTERNATIONAL, INC., a Delaware corporation (the
"Engine Manufacturer"), hereby acknowledges notice of and consents to all of the
terms of the Engine Warranty Assignment [N361ML] (herein called the
"Assignment", the defined terms therein being hereinafter used with the same
meaning), dated as of September 27, 2000, between MIDWAY AIRLINES CORPORATION, a
Delaware corporation, as Assignor and FIRST UNION TRUST COMPANY, NATIONAL
ASSOCIATION, a national banking association, not in its individual capacity but
solely as Owner Trustee, as Assignee, relating to the assignment by the Assignor
of, its rights and interests in the Warranties, and hereby confirms to the
Assignee that:
(i) all the Warranties given by the Engine Manufacturer under the ▇▇▇▇▇
▇▇▇▇▇▇▇▇ and/or the General Terms Agreement with respect to the Engines shall,
subject to the terms and conditions thereof and of the Assignment inure to the
benefit of the Assignee to the same extent as if the Assignee had originally
been a party thereto except as provided by Clause 2 of the Assignment;
(ii) the Assignee shall not be liable for any of the obligations or duties
of the Assignor under the General Terms Agreement in respect of the Engines, and
the Assignment shall not give rise to any duties or obligations whatsoever on
the part of the Assignee owing to the Engine Manufacturer, except for the
Assignee's agreement in the Assignment with respect to the Engines to the effect
that, in exercising any right in and to the Warranties, or in making any claim
with respect thereto, the applicable terms and conditions of the General Terms
Agreement including Article XIII (Limitation of Liability) shall apply to, and
be binding upon, the Assignee to the same extent as the Assignor, and with
respect to such agreement the Engine Manufacturer agrees that, anything
contained in the General Terms Agreement or the Assignment to the contrary
notwithstanding, the Assignee shall have no liability to the Engine Manufacturer
for failure to comply with any of the terms of the General Terms Agreement with
respect to the Warranties while under the Lease to the Assignor so long as the
Assignee acts upon the written instructions of the Assignor (to which
instructions the undersigned understands that it shall have access on request);
provided, that no person other than the Engine Manufacturer or any assignee of
the Engine Manufacturer as permitted under the General Terms Agreement shall
have any rights against the Assignee with respect to the undertaking and
agreement set forth in this clause (ii);
(iii) the Engine Manufacturer consents to the execution of the Lease;
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(iv) the Engine 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 Warranties and the Assignment by the Assignee pursuant to the Indenture;
(v) the Engine Manufacturer agrees that the Assignment constitutes an
agreement permitted by the General Terms Agreement and pursuant to and in
accordance with the provisions of the General Terms Agreement, the Engine
Manufacturer consents to the assignment of Assignor's interest in and to the
Warranties as and to the extent that the same relate to the Engines and the
operation thereof to Assignee pursuant to the Assignment; and
(vi) the Engine Manufacturer will continue to pay to the Assignor all
payments which the Engine Manufacturer may be required to make under the General
Terms Agreement in respect of the Warranties unless and until the Engine
Manufacturer shall have received written notice from the Assignee addressed to
the Engine Manufacturer at: CFM International, Inc., P. O. ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Director, Commercial Contracts,
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇, that an Event of Default has occurred and is continuing
and the Assignee has commenced the exercise of remedies set forth in Section 17
of the Lease (which such notice shall be conclusive proof thereof between the
Engine Manufacturer and the Assignor), whereupon the Engine Manufacturer will,
until the Assignee shall have notified the Engine Manufacturer in writing that
no such Event of Default is continuing and remains unremedied, make any and all
payments and take all actions which it may be required thereafter to make or
take under the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and/or the General Terms Agreement in respect of
the Warranties and the right to receive which has been assigned to the Assignee
under the Assignment directly to the Assignee at its address as from time to
time notified to the Engine Manufacturer in writing.
The Engine Manufacturer hereby represents and warrants:
(a) the Engine Manufacturer is a corporation organized and existing in
good standing under the law of the State of Delaware and is jointly owned by
General Electric Company and Societe Nationale D'Etude et de Construction de
Moteurs d'Aviation,
(b) the making and performance in accordance with the respective terms of
the General Terms Agreement, the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and this Engine Manufacturer's
Consent and Agreement have been duly authorized by all necessary corporate
action on the part of the Engine Manufacturer, do not require any stockholder
approval, contravene the Engine Manufacturer's certificate of incorporation or
by-laws or any indenture, credit agreement or other contractual agreement to
which the Engine Manufacturer is a party or by which it is bound and do not, as
to the making thereof, contravene any law binding on the Engine Manufacturer,
and, as to the best knowledge of the Engine Manufacturer, do not, to the
performance thereof, contravene any law binding on the Engine Manufacturer,
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(c) to the best of the Engine Manufacturer's knowledge, all applicable
provisions of the General Terms Agreement and the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ have been
compiled with to effect the assignment to the Assignee of the Warranties
contemplated by the Assignment, and
(d) the General Terms Agreement and the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ constituted, as of
the date thereof and at all times thereafter to and including the date of this
Engine Manufacturer's Consent and Agreement the legal, valid and binding
obligations of the Engine Manufacturer enforceable against the Engine
Manufacturer in accordance with their respective terms, and this Engine
Manufacturer's Consent and Agreement is the legal, valid and binding obligation
of the Engine Manufacturer, enforceable against the Engine Manufacturer in
accordance with its terms subject to: (i) the limitations of applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or
similar laws affecting the rights of creditors generally, and (ii) general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law), which principles do not make the remedies
available at law or in equity with respect to the General Terms Agreement or
this Engine Manufacturer's Consent and Agreement inadequate for the practical
realization of the benefits intended to be provided thereby.
Notwithstanding any provision to the contrary in this Engine Manufacturer's
Consent and Agreement or the Assignment, nothing contained in this Engine
Manufacturer's Consent and Agreement or the Assignment shall subject the Engine
Manufacturer to any obligation or liability to which it would not otherwise be
subject under the General Terms Agreement or modify in any respect the Engine
Manufacturer's contract rights thereunder or subject the Engine Manufacturer to
any multiple or duplicative obligation or liability under the General Terms
Agreement.
It is understood that the execution by the Engine Manufacturer, and
validity, of this Engine Manufacturer's Consent and Agreement is subject to the
condition that, upon the delivery of the Aircraft (including the Engines) by the
Assignor to the Assignee and the acceptance thereof by the Assignee pursuant to
the Purchase Agreement Assignment, the Assignee shall lease such Aircraft
(including the Engines) to the Assignor under the Lease.
This Engine 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.
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IN WITNESS WHEREOF, the Engine Manufacturer has caused this Engine
Manufacturer's Consent and Agreement to be duly executed as of __________, 2000.
CFM INTERNATIONAL, INC.
By: ____________________________________
Name:
Title:
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