SAMPLE
Purchase Agreement Assignment
THIS PURCHASE AGREEMENT ASSIGNMENT (Assignment) dated as of ________
20__ between American Trans Air, Inc., a company organized under the laws of
________________ (Assignor) and ________________________, a company organized
under the laws of ________________ (Assignee). Capitalized terms used herein
without definition will have the same meaning as in the Boeing Purchase
Agreement.
Assignor and The Boeing Company, a Delaware corporation (Boeing), are
parties to the Boeing Purchase Agreement, providing, among other things, for the
sale by Boeing to Assignor of certain aircraft, engines and related equipment,
including the Aircraft.
Assignee wishes to acquire the Aircraft and certain rights and
interests under the Boeing Purchase Agreement and Assignor, on the following
terms and conditions, is willing to assign to Assignee certain of Assignor's
rights and interests under the Boeing Purchase Agreement. Assignee is willing to
accept such assignment.
It is agreed as follows:
1. For all purposes of this Assignment, the following terms will have the
following meanings:
Aircraft -- one Boeing Model ______ aircraft, bearing manufacturer's
serial number _______, together with all engines and parts installed on such
aircraft on the Delivery Date.
Boeing -- Boeing shall include Boeing Sales Corporation (a wholly-owned
subsidiary of Boeing), a Guam corporation, and its successors and assigns.
Boeing Purchase Agreement -- Purchase Agreement No. ________ dated as
of ____________ between Boeing and Assignor, as amended, but excluding
______________, providing, among other things, for the sale by Boeing to
Assignor of the Aircraft, as said agreement may be further amended to the extent
permitted by its terms. The Purchase Agreement incorporated by reference
Aircraft General Terms Agreement AGTA/____ (AGTA).
Delivery Date -- the date on which the Aircraft is delivered by Boeing
to Assignee pursuant to and subject to the terms and conditions of the Boeing
Purchase Agreement and this Assignment.
2. Assignor does hereby assign to Assignee all of its rights and
interests in and to the Boeing Purchase Agreement, as and to the extent that the
same relate to the Aircraft and the purchase and operation thereof, except as
and to the extent expressly reserved below, including, without limitation, in
such assignment:
[TO BE COMPLETED BY THE PARTIES.]
{EXAMPLES
(a) the right upon valid tender to purchase the Aircraft pursuant to the
Boeing Purchase Agreement subject to the terms and conditions thereof and the
right to take title to the Aircraft and to be named the "Buyer" in the bill of
sale for the Aircraft;
(b) the right to accept delivery of the Aircraft;
(c) all claims for damages arising as a result of any default under the
Boeing Purchase Agreement in respect of the Aircraft;
(d) all warranty and indemnity provisions contained in the Boeing Purchase
Agreement, and all claims arising thereunder, in respect of the Aircraft; and
(e) any and all rights of Assignor to compel performance of the terms of
the Boeing Purchase Agreement in respect of the Aircraft.}
Reserving exclusively to Assignor, however:
{EXAMPLES
(i) all Assignor's rights and interests in and to the Boeing Purchase
Agreement as and to the extent the same relates to aircraft other than the
Aircraft, or to any other matters not directly pertaining to the Aircraft;
(ii) all Assignor's rights and interests in or arising out of any advance
or other payments or deposits made by Assignor in respect of the Aircraft under
the Boeing Purchase Agreement and any amounts credited or to be credited or paid
or to be paid by Boeing in respect of the Aircraft;
(iii) the right to obtain services, training, information and demonstration
and test flights pursuant to the Boeing Purchase Agreement; and
(iv) the right to maintain plant representatives at Boeing's plant pursuant
to the Boeing Purchase Agreement.}
Assignee hereby accepts such assignment.
3. Notwithstanding the foregoing, so long as no event of default or
termination under [specify document] has occurred and is continuing, Assignee
hereby authorizes Assignor, to the exclusion of Assignee, to exercise in
Assignor's name all rights and powers of Customer under the Boeing Purchase
Agreement in respect of the Aircraft.
4. For all purposes of this Assignment, Boeing will not be deemed to
have knowledge of or need recognize the occurrence, continuance or the
discontinuance of any event of default or termination under [specify document]
unless and until Boeing receives from Assignee written notice thereof, addressed
to its Vice President - Contracts, Boeing Commercial Airplane Group at P.O. Box
3707, Seattle, Washington 98124, if by mail, or to 32-9430 Answerback BOEINGREN
RNTN, if by telex. Until such notice has been given, Boeing will be entitled to
deal solely and exclusively with Assignor. Thereafter, until Assignee has
provided Boeing written notice that any such events no longer continue, Boeing
will be entitled to deal solely and exclusively with Assignee. Boeing may act
with acquittance and conclusively rely on any such notice.
5. It is expressly agreed that, anything herein contained to the
contrary notwithstanding: (a) prior to the Delivery Date Assignor will perform
its obligations with respect to the Aircraft to be performed by it on or before
such delivery, (b) Assignor will at all times remain liable to Boeing under the
Boeing Purchase Agreement to perform all obligations of Customer thereunder to
the same extent as if this Assignment had not been executed, and (c) the
exercise by Assignee of any of the assigned rights will not release Assignor
from any of its obligations to Boeing under the Boeing Purchase Agreement,
except to the extent that such exercise constitutes performance of such
obligations.
6. Notwithstanding anything contained in this Assignment to the
contrary (but without in any way releasing Assignor from any of its obligations
under the Boeing Purchase Agreement), Assignee confirms for the benefit of
Boeing that, insofar as the provisions of the Boeing Purchase Agreement relate
to the Aircraft, in exercising any rights under the Boeing Purchase Agreement,
or in making any claim with respect to the Aircraft or other things (including,
without limitation, Material, training and services) delivered or to be
delivered pursuant to the Boeing Purchase Agreement, the terms and conditions of
the Boeing 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 the Aircraft General Terms Agreement which was incorporated by
reference into the Boeing Purchase Agreement and the insurance provisions in
Article 8.2 of the Aircraft General Terms Agreement which was incorporated by
reference into the Boeing Purchase Agreement therein, will apply to and be
binding on Assignee to the same extent as if Assignee had been the original
"Customer" thereunder. Assignee further agrees, expressly for the benefit of
Boeing, upon the written request of Boeing, Assignee will promptly execute and
deliver such further assurances and documents and take such further action as
Boeing may reasonably request in order to obtain the full benefits of Assignee's
agreements in this paragraph.
7. Nothing contained herein will subject Boeing to any liability to
which it would not otherwise be subject under the Boeing Purchase Agreement or
modify in any respect the contract rights of Boeing thereunder, or require
Boeing to divest itself of title to or possession of the Aircraft or other
things until delivery thereof and payment therefor as provided therein.
8. Notwithstanding anything in this Assignment to the contrary, after
receipt of notice of any event of default or termination under [specify
document], Boeing will continue to owe to Assignor moneys in payment of claims
made or obligations arising before such notice, which moneys may be subject to
rights of set-off available to Boeing under applicable law. Similarly, after
receipt of notice that such event of default or termination no longer continues,
Boeing will continue to owe to Assignee moneys in payment of claims made or
obligations arising before such notice, which moneys may be subject to rights of
set-off available to Boeing under applicable law.
9. Effective at any time after an event of default has occurred, and
for so long as such event of default is continuing, Assignor does hereby
constitute Assignee, Assignor's true and lawful attorney, irrevocably, with full
power (in the name of Assignor or otherwise) to ask, require, demand, receive,
and give acquittance for any and all moneys and claims for moneys due and to
become due under or arising out of the Boeing Purchase Agreement in respect of
the Aircraft, to the extent assigned by this Assignment.
10. Assignee agrees, expressly for the benefit of Boeing and Assignor
that it will not disclose, directly or indirectly, any terms of the Boeing
Purchase Agreement; provided, that Assignee may disclose any such information
(a) to its special counsel and public accountants, (b) as required by applicable
law to be disclosed or to the extent that Assignee may have received a subpoena
or other written demand under color of legal right for such information, but it
will first, as soon as practicable upon receipt of such requirement or demand,
furnish an explanation of the basis thereof to Boeing, and will afford Boeing
reasonable opportunity, to obtain a protective order or other reasonably
satisfactory assurance of confidential treatment for the information required to
be disclosed, and (c) to any bona fide potential purchaser or lessee of the
Aircraft. Any disclosure pursuant to (a) and (c) above will be subject to
execution of a confidentiality agreement substantially similar to this paragraph
10.
11. This Assignment may be executed by the parties in separate
counterparts, each of which when so executed and delivered will be an original,
but all such counterparts will together constitute but one and the same
instrument.
12. This Assignment will be governed by, and construed in accordance with,
the laws of [----------------------].
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as Assignor as Assignee
By _______________________ By _______________________
Name: Name:
Title: Title:
[If the Assignment is further assigned by Assignee in connection with a
financing, the following language needs to be included.]
Attest:
The undersigned, as [Indenture Trustee/Agent for the benefit of the Loan
Participants/Mortgagee] and as assignee of, and holder of a security interest
in, the estate, right, and interest of the Assignee in and to the foregoing
Purchase Agreement Assignment and the Purchase Agreement pursuant to the terms
of a certain [Trust Indenture/Mortgage] dated as of _____________, agrees to the
terms of the foregoing Purchase Agreement Assignment and agrees that its rights
and remedies under such [Trust Indenture/Mortgage] shall be subject to the terms
and conditions of the foregoing Purchase Agreement Assignment, including,
without limitation, paragraph 6.
[Name of Entity],
--------------
as Indenture Trustee/Agent
By:____________________________
Name:
Title:
6
CONSENT AND AGREEMENT OF
THE BOEING COMPANY
THE BOEING COMPANY, a Delaware corporation (Boeing), hereby
acknowledges notice of and consents to the foregoing Purchase Agreement
Assignment (Assignment). Boeing confirms to Assignee that: all representations,
warranties, indemnities and agreements of Boeing under the Boeing Purchase
Agreement with respect to the Aircraft will, subject to the terms and conditions
thereof and of the Assignment, inure to the benefit of Assignee to the same
extent as if Assignee were originally named "Customer" therein.
This Consent and Agreement will be governed by, and construed in
accordance with, the law of the State of Washington, excluding the conflict of
laws principles thereof.
Dated as of ____________________, 20___.
THE BOEING COMPANY
By ________________________
Name:
Title: Attorney-in-Fact
Aircraft Manufacturer's Serial Number(s) ____________