Ex-10.32 Assignment of Claim Agreement



 





Exhibit 10.32




ASSIGNMENT OF CLAIM AGREEMENT




     Pinnacle Airlines, Inc., a Delaware corporation, with offices at 1689 Nonconnah Blvd., Suite
111, Memphis, TN 38132 (“Assignor”), for good and valuable consideration does hereby irrevocably
sell, convey, transfer and assign to Goldman Sachs Credit Partners L.P., a Delaware limited
partnership (“GSCP”), and its successors and assigns, with offices at One New York Plaza, Floor 49,
New York, NY 10004 (“Assignee”), all of Assignor’s right, title and interest in and to the claim or
claims of Assignor (the “Claim”) evidenced by proof of claim number 621 (the “Proof of Claim”)
filed in the aggregate amount of approximately $15,577,352.44 against Mesaba Aviation, Inc. (the
“Debtor”) the debtor-in-possession in the chapter 11 reorganization case, case no. 05-39258 (the
“Case”), in the United States Bankruptcy Court for the District of Minnesota (the “Bankruptcy
Court), and all rights and benefits of the Assignor relating to the Claim, including without
limitation: (i) the Assignor’s right to receive interest, penalties and fees, if any, which may be
paid with respect to the Claim, (ii) any actions, claims, rights or lawsuits of any nature
whatsoever, whether against Debtor or any other party, arising out of or in connection with the
Claim, and (iii) all cash, securities, instruments and other property which may be paid or issued
by the Debtor in satisfaction of the Claim (collectively, the “Transferred Rights”). The
consideration is the purchase price (the “Purchase Price”) set forth in Paragraph 6 below.
This assignment shall be deemed an absolute and unconditional assignment of the Claim for the
purpose of collection and satisfaction, and shall not be deemed to create a security interest. For
the avoidance of doubt, the Transferred Rights shall not include any claims of Assignor against
Debtor that arose after the Filing Date. “Filing Date” shall mean October 13, 2005.



     The “Effective Date” shall be the date upon which the last of the following shall have
occurred: (i) Assignor and Assignee have facsimile exchanged signatures to this Agreement and the
Notice of Transfer (as defined below) and (ii) Assignee shall have wired the First Payment (as
defined in Paragraph 6) to Assignee pursuant to the instructions set forth on Schedule 1. Assignee
agrees that it shall wire the First Payment to Assignor in immediately available funds on the day
signature pages are exchanged.



     1. PROOF OF CLAIM. Assignor represents and warrants as of the Effective Date that
the Proof of Claim has been duly and timely filed in the Case, and a true and complete copy of the
Proof of Claim is attached to and made a part of this Assignment of Claim Agreement
(“Agreement”). If the Proof of Claim amount is greater or lesser than the Claim amount set
forth above, Assignee shall nevertheless be deemed the owner of such Proof of Claim subject to the
terms of Paragraph 6 of this Agreement, and shall be entitled to identify itself as owner of such
Proof of Claim in the records of the Court. Assignor represents and warrants that the Proof of
Claim has not been revoked, withdrawn, amended or modified and no rights thereunder have been
waived and all statements in such Proof of Claim are true and correct.



     2. ASSIGNOR REPRESENTATIONS AND WARRANTIES. Assignor further represents and warrants
to Assignee as of the Effective Date that: a) to the knowledge of Assignor, no objection to the
Transferred Rights have been made; b) no payment or other distribution has been received by or on
behalf of Assignor in full or partial satisfaction of the Transferred Rights; c) Assignor has not
previously sold, assigned or pledged the Transferred Rights, in whole or in part, to any party; d)
Assignor owns and has good and marketable title to the Transferred Rights, free and clear of any
and all liens, claims, security interests, participations, or encumbrances of any kind or nature
whatsoever; e) Assignor has not signed any agreements or instruments with respect to the
Transferred Rights other than those agreements referenced in the Proof of Claim or otherwise
comprising the basis for the Claim; f) Assignor has not received any written notice that the
Transferred Rights is void or voidable or subject to any disallowance, reduction, impairment or
objection of any kind; g) Assignor is not an “affiliate” or “insider” within the meaning of 11
U.S.C. Sections 101 (2) and (31) respectively, and is not, and has not been, a member of any
official or unofficial creditors’ committee appointed in these Bankruptcy Proceedings; and h)
Assignor is not “insolvent” within the meaning of Section 1-201(23) of the Uniform Commercial Code
or within the meaning of Section 101(32) of the Bankruptcy Code.



 









 





     3. REPRESENTATIONS AND WARRANTIES. Each of party hereby represents and warrants to
each other as of the Effective Date that: (i) it has full power and authority and has taken all
action necessary to execute and deliver this Agreement and the Notice of Transfer (as defined
below) and to fulfill its obligations hereunder and to consummate the transactions contemplated
hereby; (ii) the making and performance by it of this agreement does not and will not violate any
law or regulation of the jurisdiction under which it exists, any other law applicable to it or any
other agreement to which it is a party or by which it is bound; (iii) this Agreement has been duly
and validly authorized, executed and delivered by it and is legal, valid, binding and enforceable
against it in accordance with its terms except that the enforceability may be limited by
bankruptcy, insolvency or laws governing creditors rights; (iv) no consent, approval, filing or
corporate, partnership or other action is required as a condition to or in connection with
execution delivery and performance of this Agreement and the transactions contemplated herein; (v)
it is an “accredited investor” as such terms is defined in Regulation D under the Securities Act of
1933, as amended; (vi) it is aware that the Purchase Price received herein for the sale of the
Transferred Rights may differ both in kind and amount from any distributions ultimately made
pursuant to any plan of reorganization confirmed by the Court in the Proceedings; (vii) except as
set forth in this Agreement, neither it nor any of its agents or representatives has made any
representation whatsoever to the other party regarding the status of the Case, the condition of the
Debtor (financial or otherwise) or any other matter relating to the Case, the Debtor or the
Transferred Rights; (viii) it has adequate information concerning the business and financial
condition of the Debtor and the status of the Case in order to make an informed decision regarding
the sale of the Transferred Rights, and (ix) it has independently and without reliance on the other
party (except, in the case of Assignee, to the extent of representations by Assignor), and based on
such information as it has deemed appropriate (including information available from the files of
the Court of the Case), made its own analysis and decision to enter into this Agreement. Assignee
hereby represents and warrants to Assignor that it has a net worth of at least $25,000,000.



     4. BIG BOY CLAUSE. Each party acknowledges that (i) the other currently may have,
and later may come into possession of, information on the Transferred Rights, Debtor, or Debtor’s
affiliates or the status of the Proceedings that is not known to it and that may be material to a
decision to buy or sell the Transferred Rights and all related rights (as appropriate) (the
“Excluded Information”), (ii) it has not requested the Excluded Information, and has agreed
to proceed with the purchase or sale of the Transferred Rights and all related rights (as
appropriate) hereunder without receiving the Excluded Information, and (iii) the other party shall
have no liability to it, and each party waives and releases any claims that it might have against
the other party or the other party’s Related Persons (as defined below) whether under applicable
securities laws or otherwise, with respect to the nondisclosure of the Excluded Information;
provided, however, that each party’s Excluded Information shall not and does not
affect the truth or accuracy of such party’s representations or warranties in this Agreement.



     5. FAILURE OF TRANSFER OF CLAIM. If (i) an order is entered in the Court
disapproving the transfer of the Claim, or (ii) the Court does not substitute Assignee for Assignor
as the holder of the Claim, then, as Assignee’s sole and exclusive remedy, Assignor shall, upon
written demand by Assignee, repay to Assignee all amounts of Purchase Price (as defined below)
received by Assignor at or prior to the time of such repayment, together with interest on such
amount from the Effective Date to the date of repayment at the Interest Rate (as defined below).



     In the event Assignor has previously sold, assigned, pledged participated, hypothecated or
otherwise encumbered the Claim or any portion thereof to any person or entity other than Assignee,
Assignor shall immediately pay to Assignee liquidated damages in an amount equal to one hundred
twenty five percent (125%) of the purchase price hereunder, plus Assignee’s costs and expenses
relating to the Assignment of Claim.



     A “Final Order” means an order of the Court which fully and finally determines the amount and
the priority of the Claim and which does not preserve for any party the right to seek to
re-determine the amount or priority of such Claim and which has not been reversed, stayed,
modified, or amended and as to which (a) any appeal taken, petition for certiorari or motion for
rehearing or reconsideration that has been filed, has been finally determined or dismissed in a
manner that does not affect the Bankruptcy Courts’ determination of the allowed amount or treatment
of the Claim or (b) the time to appeal, seek



 









 




certiorari or move for reconsideration or rehearing has expired and no appeal, petition for
certiorari or motion for reconsideration or rehearing has been timely filed.




     6. PURCHASE PRICE. In consideration of the transfer of the Claim, GSCP agrees to pay
to Assignor an amount (the “Purchase Price”) equal to forty-two percent (42%) of the value of the
Final Allowed Claim (as defined below), payable as follows:




	 	A.	 	On the date hereof, GSCP shall pay the amount of $5,233,990.42 (the “First
Payment”) to Assignor, by wire transfer of immediately available funds to an account
designated by Assignor.
	 
	 	B.	 	On or before the fifth business day following the date on which the Final
Allowed Claim is determined, Assignor shall calculate the Purchase Price and shall send
such calculation to GSCP, together with a calculation of the amount payable pursuant to
Clause C or D below, as the case may be.
	 
	 	C.	 	If the Purchase Price exceeds the amount of the First Payment, then GSCP shall
pay the amount of such excess, to Assignor by wire transfer of immediately available
funds to an account designated by Assignor, within three business days of the receipt
by GSCP of such calculation. In addition, if the Purchase Price is in excess of
$6,542,488, GSCP shall pay interest on such amount in excess of $6,542,488 calculated
at the rate of the lesser of 3-month LIBOR and nine percent (9%) per annum, on the
basis of a 360-day year and compounded annually.
	 
	 	D.	 	If the amount of the First Payment exceeds the Purchase Price, then Assignor
shall pay the amount of such excess, together with interest on such excess amount
calculated at the rate of nine percent (9%) per annum, on the basis of a 360-day year
and compounded annually (the “Interest Rate”), to Assignee by wire transfer of
immediately available funds to an account designated by Assignee, within three business
days of the receipt by GSCP of such calculation.




The “Final Allowed Claim” shall be equal to (i) the allowed amount of the Claim as determined by a
Final Order (if an objection or other pleading against or in relation to the Proof of Claim is
timely filed in the Case seeking the disallowance, avoidance or subordination of the Claim (i.e.,
within the applicable period for making objections including, without limitation, pursuant to the
terms of any chapter 11 plan)), or (ii) the amount of the Claim as determined and set forth in the
Proof of Claim (if no such objection or other pleading against or in relation to the Proof of Claim
is timely filed in the Case (i.e., within the applicable period for making objections, without
limitation, pursuant to the terms of any chapter 11 plan)), in either case, less the amount of any
offsets, subordinations or other reductions asserted by or on behalf of Debtor that will reduce the
amount of the Transferred Rights.




     7. ATTORNEY-IN-FACT; SETTLEMENT OF THE CLAIM: FURTHER ACTIONS. Assignor hereby
irrevocably appoints Assignee as its true and lawful attorney-in-fact solely with respect to the
Transferred Rights, and authorizes Assignee to act in Assignor’s name, place and stead, to demand,
sue for, compromise and recover all such amounts which are, or may hereafter become due and payable
for, or on account of the Transferred Rights herein assigned. Assignor hereby grants unto Assignee
full authority to do all things necessary to enforce the Transferred Rights and Assignor’s rights
there under. Assignor agrees that the powers granted in this paragraph are discretionary in nature
and exercisable at the sole option of Assignee. In the event that Assignor obtains knowledge that
an objection to the Claim or the Transferred Rights has been made, Assignor shall promptly notify
GSCP in writing and Assignor shall take such further action, at its own expense, as may be
reasonably necessary or desirable or otherwise reasonably requested by Assignee to uphold and
defend the amount of the Transferred Rights and effect the Assignment of Claim and any payments or
distributions on account of the Transferred Rights to Assignee including, without limitation, the
execution of appropriate transfer powers, corporate resolutions and consents.



 









 





     In the event that Assignee obtains knowledge that an objection to the Claim or the Transferred
Rights has been made or that a deadline has been set (or modified) for the making of such
objections, Assignee shall promptly notify Assignor in writing. Neither Assignor nor Assignee
shall compromise or settle the Transferred Rights, change the amount or otherwise consent to a
reduction in the amount of the Claim to an amount less than the amount set forth in the Proof of
Claim, without the prior written consent of the other, which consent shall not be unreasonably
withheld. In performing any of its obligation under this section and in otherwise complying with
its obligations under this Agreement (including giving effect to Paragraph 6 above), Assignor and
Assignee hereby covenant and agree to cooperate and confer and act reasonably at all times and take
such actions as are reasonably necessary or desirable to maximize the amount of the Claim, to
minimize the amount of the Claim that is subject to being disallowed, avoided, subordinated,
reduced or otherwise impaired, and to minimize the amount of time in which all components of the
Transferred Rights are quantified and paid; provided that nothing in this Agreement shall
require Assignor to enter into any agreements or take (or refrain from taking) any actions in
relation to its business relationship with Debtor or any other person or entity, or to compromise
any other claims that Assignor may have against Debtor arising after the Filing Date or against any
person or entity other than the Debtor.



     Assignor agrees to forward to Assignee all notices received from the Debtor, the Court or any
third party with respect to the Transferred Rights assigned herein and to take such further action
with respect to the Transferred Rights in the Proceedings as Assignee may from time to time
reasonably request.



     Assignor further agrees that if Assignor receives any distributions on account of the
Transferred Rights, whether in the form of cash, securities, instruments or any other property, the
aforementioned shall constitute property of the Assignee to which the Assignee has an absolute
right. Assignor shall hold such property in trust and will at its own expense deliver to Assignee
any such property in the same form received, together with any endorsements or documents necessary
to transfer such property to Assignee within 3 business days of receipt in the case of cash and
five business days in the case of securities. Should all or any portion of the distributions on
account of the Transferred Rights not be assignable by Assignor to Assignee, then Assignor grants
to Assignee a participation interest in the Transferred Rights or such distributions, in accordance
with applicable law.



     8. FURTHER ASSIGNMENT. Assignor hereby acknowledges that Assignee may at any time
reassign any or all of the Transferred Rights, together with all right, title and interest of
Assignee in and to this Agreement. All representations, warranties, covenants and agreements
contained herein shall survive the execution and delivery of this Agreement and any such
reassignment, and shall inure to the benefit of Assignor, Assignee and their respective successors
and assigns of any party hereto; provided, however, that the obligations of Assignor and Assignee
contained herein shall continue and remain in full force and effect until fully paid, performed and
satisfied.



     9. INDEMNIFICATION Each of Assignor and Assignee agree to indemnify the other party
and its officers, directors, employees, agents, partners and controlling persons (collectively
“Related Persons”) from losses, damages and liabilities, including, without limitation,
reasonable legal fees and costs, which result from any breach of Assignor’s or Assignee’s (as
applicable) representations, warranties, covenants or obligations under this Agreement.



     10. LATE PAYMENT If either party fails to make a payment or distribution to the other
party within the time period specified in this Agreement, the party failing to make full payment of
any amount when due shall, upon demand by the other party, pay such amount due amount together with
interest on it for each day from (and including) the date when due to (but excluding) the date when
actually paid, calculated at the Interest Rate.



     11.  JURISDICTION. The laws of the State of New York shall govern this Agreement.
Each party submits to the jurisdiction of the courts located in the County of New York, State of
New York and agrees that any litigation relating to this Agreement shall be brought only in such
courts. Each party hereto consents to service of process by certified mail at its address listed
above, and in any action hereunder,



 









 




Assignor waives any right to demand a trial by jury. This Agreement may be executed in any
number of counterparts (via facsimile is satisfactory), each of which, when so executed and
delivered, shall be an original, but all of which, together constitute one and the same instrument.




     12. WAIVER OF JURY TRIAL. THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT THEY MAY HAVE TO TRIAL BY JURY OF
ANY CLAIM OR CAUSE OF ACTION, OR IN ANY LEGAL PROCEEDING, DIRECTLY OR INDIRECTLY BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (WHETHER BASED ON
CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTY HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE
MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.



     13. CONSENT AND WAIVER. Assignor hereby acknowledges and consents to all terms set
forth in this Agreement and hereby waives its right to raise any objection thereto and its right to
receive notice pursuant to Bankruptcy Rule 3001(e), and consents to the substitution of Assignor by
Assignee for all purposes in the case, including, without limitation, for voting and distribution
purposes with respect to the Transferred Rights. Assignee agrees to file a Notice of Transfer with
the Court pursuant to Federal Rule of Bankruptcy Procedure 3001(e) (the “Notice of
Transfer”) including the Evidence of Transfer of Claim substantially in the form attached
hereto as Exhibit A.



     14. NOTICES; WIRE INSTRUCTIONS. All demands, notices, consents, and communications
hereunder shall be in writing and shall be deemed to have been duly given when hand-delivered or
duly deposited in the mails, by certified or registered mail, postage prepaid-return-receipt
requested, to the addresses set forth on Schedule 1, or such other address as may be furnished
hereafter by notice in writing. All payments by Assignor to Assignee and Assignee to Assignor
under this Agreement shall be made in the lawful currency of the United States by wire transfer of
immediately available funds to Assignor and Assignee, as applicable, in accordance with the wire
instructions specified in Schedule 1.



     15. UNDERSTANDING. This Agreement, together with any exhibits hereto, constitutes
the entire agreement and understanding between the parties with respect to the subject matter
hereof and supersedes all prior agreements, understandings or representations pertaining to the
subject matter hereof, whether oral or written. There are no warranties, representations or other
agreements between the parties in connection with the subject matter hereof except as specifically
and expressly set forth herein. This Agreement may be signed in counterparts, each of which shall
be an original and all of which taken together shall constitute one agreement. No amendment of any
provision of this Assignment shall be effective unless it is in writing and signed by the parties
and no waiver of any provision of this Assignment, nor consent to any departure by either party
from it, shall be effective unless it is in writing and signed by the affected party, and then such
waiver or consent shall effective only in the specific instance and for the specific purpose for
which given.



     16. LIMITED LIABILITY. Notwithstanding anything contained in this Agreement to the
contrary, the parties agree that (i) no general or limited partner of Assignee shall be personally
liable for any obligation or liability of Assignee under this Agreement; and (ii) all obligations
and liabilities of Assignee under this Agreement are enforceable solely against Assignee and
Assignee’s assets and not against any assets of any general or limited partner of Assignee.




 










 





     IN WITNESS WHEREOF, the undersigned have duly executed this Agreement by their duly
authorized representatives as of this the 5th day of October, 2006.



ASSIGNOR

PINNACLE AIRLINES, INC.




	 	 	 	 	 
	By:

	 	/s/ Peter D. Hunt	 	 
	 

	 	 	 	 
	Name: Peter D. Hunt	 	 
	Title: Vice President and CFO	 	 
	 

	 	 	 	 
	ASSIGNEE	 	 
	GOLDMAN SACHS CREDIT PARTNERS, L.P.	 	 
	 
	 	 	 	 
	By:

	 	/s/ Jennifer Canu	 	 
	 

	 	 	 	 
	Name: Jennifer Canu	 	 
	Title: Authorized Signatory	 	 






 









 





Schedule 1





 









 





Exhibit A




EVIDENCE OF TRANSFER OF CLAIM




TO:  THE DEBTOR AND THE BANKRUPTCY COURT



For value received, the adequacy and sufficiency of which are hereby acknowledged, Pinnacle
Airlines, Inc. (“Assignor”) hereby unconditionally and irrevocably sells, transfers and
assigns to Goldman Sachs Credit Partners L.P. (“Assignee”) all of its right, title and
interest in and to, or arising under or in connection with its claim (as such term is defined in
Section 101(5) of Title 11 of the United States Code) evidenced by proof of claim number 621 filed
against Mesaba Aviation, Inc. (the “Debtor”), Chapter 11 Case No. 05-39258, United States
Bankruptcy Court for the District of Minnesota (the “Bankruptcy Court”).



Assignor hereby acknowledges and consents to all of the terms set forth in the Assignment of Claim
and hereby waives its right to raise any objections thereto and its right to receive notice
pursuant to Federal Rule of Bankruptcy Procedure 3001. Upon the transfer of the claim becoming
effective, Assignor consents to the substitution of Assignee for Assignor for all purposes in the
Bankruptcy Case.



Assignor acknowledges and understands, and hereby stipulates, that an order of the Bankruptcy Court
may be entered without further notice to Assignor transferring to Assignee the foregoing claim and
recognizing the Assignee as the sole owner and holder of the claim. Assignor further agrees that
all further notices relating to the claim, and all payments or distributions of money or property
in respect of claim, shall be delivered or made to the Assignee.



IN WITNESS WHEREOF, THIS EVIDENCE OF TRANSFER OF CLAIM IS EXECUTED THIS 5th DAY OF OCTOBER, 2006.




	 	 	 	 	 
	PINNACLE AIRLINES, INC.	 	 
	 
	 	 	 	 
	By:

	 	/s/ Peter D. Hunt	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	Its:

	 	Vice President and CFO