<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q/A
(Mark One)
X Quarterly report pursuant to Section 13 or 15(d) of the Securities
- ----- Exchange Act of 1934
For the quarterly period ended September 30, 1997 or
Transition report pursuant to Section 13 or 15(d) of the
- ----- Securities Exchange Act of 1934
For the transition period from to
Commission file number 1-12649
AMERICA WEST HOLDINGS CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE 86-0847214
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
51 WEST THIRD STREET TEMPE, ARIZONA 85281
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (602) 693-0800
N/A
(Former name, former address and former fiscal year, if changed since
last report)
Amendment No. 1
The undersigned registrant hereby amends the following item of its Quarterly
Report on Form 10-Q for the quarter ended September 30, 1997 as set forth in
the pages attached hereto:
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
<PAGE> 2
Item 6. EXHIBITS AND REPORTS ON FORM 8-K
a. Exhibits
EXHIBIT
NUMBER DESCRIPTION AND METHOD OF FILING
------ --------------------------------
*10.25 Airbus A320/A319 Purchase Agreement dated
September 12, 1997 between AVSA S.A.R.L
and America West Airlines, Inc. including
Letter Agreements Nos. 1-10
11.1 Computation of Earnings Per Share
27 Financial Data Schedule
---------
*Filed herewith
b. Reports on Form 8-K
Current Report on Form 8-K dated September 15, 1997
Current Report on Form 8-K dated October 31, 1997
2
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
AMERICA WEST HOLDINGS CORPORATION
By /s/ W. Douglas Parker
----------------------------
W. Douglas Parker
Senior Vice President and
Chief Financial Officer
DATED: December 3, 1997
3
<PAGE> 4
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number
<S> <C>
*10.25 Airbus A320/A319 Purchase Agreement dated September 12,
1997 between AVSA S.A.R.L. and America West Airlines,
Inc. including Letter Agreements Nos. 1-10.
11.1 Computation of Earnings Per Share
27 Financial Data Schedule
</TABLE>
*filed herewith
<PAGE> 1
EXHIBIT 10.25
Airbus A320/A319 Purchase Agreement
dated September 12, 1997
between AVSA S.A.R.L. and America West Airlines, Inc.
including Letter Agreements Nos. 1-10.
<PAGE> 2
C O N T E N T S
<TABLE>
<CAPTION>
CLAUSES TITLE
------- -----
<S> <C>
0 PURCHASE AGREEMENT
1 DEFINITIONS
2 SALE AND PURCHASE
3 CHANGES
4 PRICE
5 PRICE REVISION
6 PAYMENT TERMS
7 PLANT REPRESENTATIVES - INSPECTION
8 BUYER'S ACCEPTANCE
9 DELIVERY
10 EXCUSABLE DELAY
11 INEXCUSABLE DELAY
12 WARRANTIES AND SERVICE LIFE POLICY
13 PATENT INDEMNITY
14 TECHNICAL PUBLICATIONS
15 FIELD ASSISTANCE
16 TRAINING AND TRAINING AIDS
17 VENDORS' PRODUCT SUPPORT
18 BUYER FURNISHED EQUIPMENT AND DATA
</TABLE>
i
<PAGE> 3
C O N T E N T S
<TABLE>
<CAPTION>
CLAUSES TITLE
------- -----
<S> <C>
19 ASSIGNMENT
20 DATA RETRIEVAL
21 TERMINATION FOR CERTAIN EVENTS; FURTHER
ASSURANCES
22 MISCELLANEOUS PROVISIONS
</TABLE>
ii
<PAGE> 4
C O N T E N T S
<TABLE>
<CAPTION>
EXHIBITS
- --------
<S> <C>
EXHIBIT A1 A319 STANDARD SPECIFICATION
EXHIBIT A2 A320 STANDARD SPECIFICATION
EXHIBIT B1 CHANGE ORDERS TO A319 STANDARD SPECIFICATION
Parts 1, 2 and 3 (SCNs) AND OTHER STUDY ITEMS
EXHIBIT B2 CHANGE ORDERS TO A320 STANDARD SPECIFICATION
Parts 1, 2 and 3 (SCNs) AND OTHER STUDY ITEMS
EXHIBIT C SCN FORM
EXHIBIT D AIRFRAME PRICE REVISION FORMULA
EXHIBIT E1 INTERNATIONAL AERO ENGINES PRICE REVISION
FORMULA (V2524-A5)
EXHIBIT E2 INTERNATIONAL AERO ENGINES PRICE REVISION
FORMULA (V2527-A5)
EXHIBIT F SELLER SERVICE LIFE POLICY
EXHIBIT G A319 AND A320 AIRCRAFT CERTIFICATE OF
ACCEPTANCE
EXHIBIT H TECHNICAL PUBLICATIONS
</TABLE>
iii
<PAGE> 5
C O N T E N T S
<TABLE>
<CAPTION>
LETTER AGREEMENTS
- -----------------
<S> <C>
LETTER AGREEMENT NO. 1 SPARE PARTS PROCUREMENT
LETTER AGREEMENT NO. 2 AIRCRAFT ORDER FLEXIBILITY
LETTER AGREEMENT NO. 3 PURCHASE INCENTIVES
LETTER AGREEMENT NO. 4 PREDELIVERY PAYMENTS
LETTER AGREEMENT NO. 5 TRAINING MATTERS
LETTER AGREEMENT NO. 6 MISCELLANEOUS PRODUCT SUPPORT AND
AIRCRAFT DELIVERY MATTERS
LETTER AGREEMENT NO. 7 A320-200 PERFORMANCE GUARANTEES
LETTER AGREEMENT NO. 8 A319-100 PERFORMANCE GUARANTEES
LETTER AGREEMENT NO. 9 {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
LETTER AGREEMENT NO. 10 {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
</TABLE>
iv
<PAGE> 6
P U R C H A S E A G R E E M E N T
This agreement is made this 12th day of September, 1997
between
AVSA, a societe a responsabilite limitee organized and
existing under the laws of the Republic of France, having its
registered office located at
2, rond-point Maurice Bellonte
31700 BLAGNAC
FRANCE
(hereinafter referred to as the "Seller")
and
AMERICA WEST AIRLINES, INC., a corporation organized and
existing under the laws of the State of Delaware, United
States of America, having its principal corporate offices
located at
Phoenix Sky Harbor International Airport
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034 U.S.A.
(hereinafter referred to as the "Buyer")
WHEREAS, the Buyer and the Seller entered into the 1990 A320 Purchase Agreement
(as defined in Subclause 1.1), and the Buyer and the Seller wish to terminate
such agreement and enter into this agreement.
WHEREAS, the Buyer wishes to purchase and the Seller is willing to sell
twenty-two (22) Airbus Industrie A319-100 model aircraft and twenty-four (24)
Airbus Industrie A320-200 model aircraft upon the terms and conditions herein
provided.
WHEREAS, the Seller is a sales subsidiary of Airbus Industrie, G.I.E., and will
purchase the Aircraft from Airbus Industrie, G.I.E., for resale to the Buyer.
NOW THEREFORE IT IS AGREED AS FOLLOWS:
1 - DEFINITIONS
1.1 Definitions
For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, the following terms
will have the following meanings:
<PAGE> 7
1990 Purchase Agreement - that certain A320 Purchase Agreement dated as
of September 28, 1990, including any exhibits, appendixes and letter
agreements attached thereto, as amended by Amendment No. 1, dated as of
July 21, 1993, and Amendment No. 2, dated as of August 25, 1994 (such
purchase agreement, together with such exhibits, appendixes and letter
agreements thereto (as any of the same shall have been amended,
modified or supplemented to date), is referred to herein as the "1990
Purchase Agreement").
A319 Aircraft - any or all of the Airbus Industrie A319-100 model
aircraft to be purchased by the Seller and sold to the Buyer pursuant
to this Agreement, together with all components, equipment, parts and
accessories installed in or on such aircraft and the A319 Propulsion
Systems installed thereon.
A319 Airframe - any A319 Aircraft, excluding the A319 Propulsion
Systems therefor.
A319 Propulsion Systems - the two (2) IAE V2524-A5 powerplants to be
installed on an A319 Aircraft or installed on an A319 Aircraft at
delivery, each composed of the powerplant (as such term is defined in
Chapters 70-80 of ATA Specification 100 (Revision 21), but limited to
the equipment, components, parts and accessories included in the
powerplant, as so defined), that have been sold to the Manufacturer by
International Aero Engines AG, and a nacelle and thrust reverser for
each such powerplant.
A319 Specification - as defined in Subclause 2.2.1 of this Agreement.
A319 Standard Specification - as defined in Subclause 2.2.1 of this
Agreement.
A320 Aircraft - any or all of the Airbus Industrie A320-200 model
aircraft to be purchased by the Seller and sold to the Buyer pursuant
to this Agreement, together with all components, equipment, parts and
accessories installed in or on such aircraft and the A320 Propulsion
Systems installed thereon.
A320 Airframe - any A320 Aircraft, excluding the A320 Propulsion
Systems therefor.
A320 Propulsion Systems - the two (2) IAE V2527-A5 powerplants to be
installed on an A320 Aircraft or installed on an A320 Aircraft at
delivery, each composed of the powerplant (as such term is defined in
Chapters 70-80 of ATA Specification 100 (Revision 21), but limited to
the equipment, components, parts and accessories included in the
powerplant, as so defined), that have been sold to the Manufacturer by
International Aero Engines AG, and a nacelle and thrust reverser for
each such powerplant.
A320 Specification - as defined in Subclause 2.2.2 of this Agreement.
A320 Standard Specification - as defined in Subclause 2.2.2 of this
Agreement.
Affiliate - with respect to any person or entity, any other person or
entity directly or indirectly controlling, controlled by or under
common control with such person or entity, not including (when applied
to the Seller) any of the Associated Contractors.
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<PAGE> 8
Agreement - this Airbus A319/A320 Purchase Agreement, including all
exhibits, appendixes and letter agreements attached hereto or made of
even date herewith, as the same may be amended or modified and in
effect from time to time.
Aircraft - any or all of the A319 Aircraft and/or A320 Aircraft and/or
A321 Aircraft to be firmly purchased by the Seller and sold to the
Buyer pursuant to this Agreement, together with all components,
equipment, parts and accessories installed in or on such aircraft and
the Propulsion Systems installed thereon.
Airframe - any Aircraft, excluding the Propulsion Systems therefor.
ASC - Airbus Service Company, Inc., a corporation organized and
existing under the laws of Delaware, having its registered office
located at 198 Van Buren Street, Suite 300, Herndon, VA 20170, or any
successor thereto.
Associated Contractors - collectively, the members and, for certain
purposes, subcontractors of the Manufacturer from time to time, which
members presently are:
(1) AEROSPATIALE, SOCIETE NATIONALE INDUSTRIELLE ("Aerospatiale"),
whose principal office is at
37, Boulevard de Montmorency
75016 Paris
France
(2) BRITISH AEROSPACE (OPERATIONS) LTD, whose principal office is
at Warwick House
PO Box 87
Farnborough Aerospace Centre
Farnborough
Hants GU14 6YU
England
(3) CONSTRUCCIONES AERONAUTICAS, S.A., whose principal office is
at
404 Avenida de Aragon
28022 Madrid
Spain
(4) DAIMLER-BENZ AEROSPACE AIRBUS, GmbH ("Daimler-Benz"), whose
principal office is at
Kreetslag 10
Postfach 95 01 09
21111 Hamburg
Germany
-3-
<PAGE> 9
Base Price - for any Aircraft, Airframe or Propulsion Systems, as
defined in Clause 4 of this Agreement.
Buyer Furnished Equipment - for any Aircraft, all the items of
equipment that will be furnished by the Buyer and installed in the
Aircraft by the Seller pursuant to Clause 18 of the Agreement, as
listed in the Specification.
Certificate of Acceptance - as set out in Exhibit G of this Agreement.
Customer Originated Changes or COC - as defined in Subclause 14.5.3.1
of this Agreement.
DGAC - The Direction Generale de l'Aviation Civile of France, or any
successor agency thereto.
Development Changes - as defined in Subclause 3.2 of this Agreement.
Dollars - the lawful currency of the United States of America.
Excusable Delay - as defined in Subclause 10.1 of this Agreement.
FAA - the US Federal Aviation Administration, or any successor agency
thereto.
Failure - as defined in Subclause 12.2.1.2 of this Agreement.
Final Contract Price - as defined in Subclause 4.3 of this Agreement.
IAE - International Aero Engines, AG, the manufacturer of the
Propulsion Systems
Illegality Event - the events set out in Subclause 21.3 of this
Agreement.
In-house Warranty - as defined in Subclause 12.1.7(i) of this
Agreement.
In-house Warranty Labor Rate - as defined in Subclause 12.1.7(v)(a) of
this Agreement.
Interface Problem - as defined in Subclause 3.1 of Letter Agreement No.
6 to the Agreement.
Item - as defined in Subclause 12.2.1.1 of this Agreement.
LBA - Luftfahrt-Bundesamt of Germany, or any successor agency thereto.
LIBOR - for any interest period shall mean the offered rate for
deposits in Dollars in the London interbank market for the period of
three (3) months (provided that in case of an interest period that is
less than three (3) months, for the period of three (3) months),
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<PAGE> 10
which appears on the Reuters Screen LIBO page as of 11:00 a.m. London
time on the second Working Day prior to the start of the relevant
interest period or, if more than one such rate shall appear, the
arithmetic mean of such rates (rounded to the next higher basis point)
or, if such rate does not appear on the Reuters Screen LIBO page, the
arithmetic mean (rounded to the next higher basis point) of the rates
at which deposits of such amount in Dollars are offered by two major
banks (one selected by the Buyer and the other selected by the Seller)
in the London interbank market to prime banks for a period equal to
that of the period determined above.
Manufacturer - Airbus Industrie, a "Groupement d'Interet Economique"
established under "Ordonnance" No. 67-821 dated September 23, 1967, of
the Republic of France or any successor thereto.
Material - as defined in Subparagraph 1.1 of Letter Agreement No. 1 to
the Agreement.
MTOW - the maximum take-off weight of the Aircraft.
Parent Company - as of the date hereof, America West Holdings
Corporation, or such other person or entity that from time to time
shall own all or substantially all of the Buyer's stock, or the Buyer's
successor's stock.
Predelivery Payment - any payment made against the Final Contract Price
of an Aircraft or certain Aircraft in accordance with Subclause 6.2 of
this Agreement and Letter Agreement No. 4. For the avoidance of doubt,
Predelivery Payment shall not include {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}, as defined in Letter
Agreement No. 4 to the Agreement.
Propulsion Systems - collectively or individually, as applicable, the
A319 Propulsion Systems and the A320 Propulsion Systems.
RCSR(s) - the resident customer support representative(s) as defined in
Subclause 15.1.1 of this Agreement.
Request for Change or RFC - as defined in Subclause 3.3 of this
Agreement.
Scheduled Date of Delivery - shall mean the last Working Day of the
month either (i) listed in Subclause 9.1 or 9.2 herein, (ii) provided
by the Seller pursuant to Paragraph 3 of Letter Agreement No. 2 to the
Agreement, or (iii) provided by the Seller under Paragraph 1 or 2 of
Letter Agreement No. 2 of the Agreement. In the case of each (i), (ii)
and (iii) above, at such time that (a) the Seller has delivered to the
Buyer notification of the firm calendar week of delivery, the scheduled
date of delivery shall mean the last Working Day of that week, and (b)
the Seller has delivered to the Buyer notification of the date the
Aircraft will be delivered, the scheduled date of delivery shall mean
the delivery date so notified.
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<PAGE> 11
Service Life Policy - the warranties described in Subclause 12.2 of
this Agreement.
Specification - collectively or individually, as applicable, the A319
Specification and the A320 Specification.
Specification Change Notice or SCN - as defined in Subclause 3.1 of
this Agreement.
SSBFE - Seller Supplied Buyer Furnished Equipment as defined in
Subclause 18.6 of this Agreement.
Standard Specification - collectively or individually, as applicable,
the A319 Standard Specification and the A320 Standard Specification.
Supplier Product Support Agreements - as referred to in Subclause 17.1
of this Agreement.
Technical Publications - the publications listed in Exhibit H, as
supplemented and modified pursuant to Clause 14 of this Agreement.
Termination Events - the events set out in Subclause 21.1.1 of this
Agreement.
Vendor - each manufacturer (other than the manufacturer of the
Propulsion Systems) of a component, equipment, accessory or part
installed in an Aircraft at its delivery to the Buyer under this
Agreement, or any replacement therefor, other than a Warranted Part,
and listed in the Supplier Product Support Agreements.
Vendor Component - as defined in Subclause 3.3 of Letter Agreement No.
6 to the Agreement.
Vendor Parts - as defined in Subclause 2.1 of Letter Agreement No. 6 to
the Agreement.
Warranted Part - as defined in Subclause 12.1.1 of this Agreement.
Warranty Claim - as defined in Subclause 12.1.6(v) of this Agreement.
Working Day - with respect to any action to be taken hereunder, a day
other than a Saturday, Sunday or other day designated as a holiday in
the jurisdiction in which such action is required to be taken.
The terms "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement, and not a particular Clause thereof.
Technical and trade items not otherwise defined herein will have the
meanings assigned to them as generally accepted in the aircraft
manufacturing industry.
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<PAGE> 12
2 - SALE AND PURCHASE
2.1 General
The Seller will cause to be manufactured and will sell and deliver, and
the Buyer will buy and take delivery of the Aircraft subject to the
terms and conditions contained in this Agreement.
2.2 Specification Documents
2.2.1 A319 Aircraft
The A319 Aircraft will be manufactured in accordance with the A319-100
Standard Specification, Document No. J.000.01000, Issue 3, dated March
29, 1995, including Temporary Revision 1, dated August 25, 1995 (the
"A319 Standard Specification" which is annexed hereto as Exhibit A1) as
modified by the SCNs listed in Exhibit B1 (Part 1 and 2) hereto and as
may be further modified from time to time, pursuant to the provisions
of Clause 3 below, with a MTOW of 74.0 tonnes,{CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}(the "A319
Specification").{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
2.2.2 A320 Aircraft
The A320 Aircraft will be manufactured in accordance with the A320-200
Standard Specification, Document No. D.000.02000, Issue 4, dated March
30, 1995 (the "A320 Standard Specification" which is annexed hereto as
Exhibit A2) as modified by the SCN's listed in Exhibit B2 (Part 1 and
2) hereto and as may be further modified from time to time, pursuant to
the provisions of Clause 3 below, with a MTOW of 77 tonnes (the "A320
Specification").
2.3 Certification
The Seller has obtained or caused to be obtained a US FAA Type
Certificate (transport category) for the Aircraft pursuant to 14 CFR
Part 21 and in compliance with the applicable provisions of 14 CFR Part
25 of the US Federal Aviation Regulations or, in each case, their
successor provisions.
Each A319 Aircraft will be delivered to the Buyer with a Certificate of
Airworthiness for Export issued by the LBA, and each A320 Aircraft will
be delivered to the Buyer with the Certificate of Airworthiness for
Export issued by the DGAC. The Aircraft will be delivered in a
condition enabling the Buyer (or a person eligible to obtain such
certificate
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<PAGE> 13
under then applicable law) to obtain at the time of delivery a Standard
Airworthiness Certificate issued pursuant to 14 CFR Part 21 of the US
Federal Aviation Regulations or its successor provisions. The Seller
will have no obligation other than as set forth in Subclause 3.4,
whether before, at or after delivery of any Aircraft, to make any
alterations to such Aircraft to enable such Aircraft to meet FAA
requirements for specific operation on routes unique to the Buyer.
The Seller will obtain or cause to be obtained all then necessary
government permits required to be obtained by the Joint Airworthiness
Authorities (JAA), as and if applicable, for the certification of the
Aircraft under this Subclause 2.3, in respect of the manufacture, sale
and delivery of the Aircraft.
Except as set forth in this Subclause 2.3, the Seller will not be
required to obtain any other certificate or approval with respect to
the Aircraft.
-8-
<PAGE> 14
3 - CHANGES
3.1 Specification Change Notices
The Specification may be amended from time to time by a Specification
Change Notice, a written agreement between the parties (each such
Specification Change Notice being herein called a "SCN" and being in
the form of Exhibit C hereto). Each SCN will set forth in detail the
particular changes to be made in the Specification, and the effect, if
any, of such changes on design, performance, weight, balance, time of
delivery, Buyer Furnished Equipment, SSBFE, and price of each Aircraft
affected thereby and interchangeability or replaceability of parts.
SCNs will not be binding on either party until signed by persons duly
authorized in writing by the Buyer and the Seller, but upon being so
signed will constitute amendments to this Agreement.
3.2 Development Changes
The Specification may also be revised by the Seller without a SCN or
the Buyer's consent to incorporate Manufacturer-decided changes that
are deemed necessary or useful to correct defects, improve the Aircraft
or its process of manufacture, or ensure compliance with this Agreement
and that do not increase the price or adversely affect the delivery,
overall dimensions, guaranteed weight, maintenance requirements or
performance of the Aircraft or adversely change the interchangeability
or replaceability requirements of the Specification with respect to
parts (hereinafter called "Development Changes").
3.3 Requests and Approvals
In the event that the Buyer (i) files a Request for Change ("RFC") with
the Seller and the RFC does not subsequently become a SCN for any
reason, except for fault or negligence by the Seller, or (ii) otherwise
requests the Seller in writing to incorporate a proposed change
(excluding Development Changes) in an Aircraft, the Buyer will pay to
the Seller the full cost of design and other work resulting from such
request and incurred by the Seller. Whenever practicable and whenever
the Seller estimates that there will be material costs involved, the
Seller will provide the Buyer with an estimate of such costs before
proceeding with such changes requested by the Buyer. It is agreed by
the Seller that the provisions of the first sentence of this paragraph
shall not apply to RFCs listed in Exhibit B1 and B2 of the Agreement,
nor to RFCs raised during the first Specification meeting between the
Seller and the Buyer immediately following the date hereof, provided
the Seller shall have thirty (30) days after this meeting to reject
such RFCs raised by the Buyer. In the event that the Buyer requests the
Seller in writing to proceed with a proposed change before any
requisite approval of the LBA (in the case of A319 Aircraft) or the
DGAC (in the case of A320 Aircraft) and FAA has been obtained and
subsequently such LBA or DGAC (as applicable) or FAA approval is not
obtained, any SCN which will have been executed in connection with such
proposed change will be deemed canceled.
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<PAGE> 15
3.4 Specification Changes Before Delivery
If, pursuant to the promulgation of any applicable law or regulation,
any change in the Specification has to be made before delivery of any
Aircraft to enable the Buyer to obtain a Standard Airworthiness
Certificate for such Aircraft as referred to in Subclause 2.3, the
Seller will make the required change or modification to the Aircraft.
For each such change, the Buyer will issue a RFC and the parties will
sign a SCN specifying the effect, if any, of such change on design,
performance, weight, balance, time of delivery, Buyer Furnished
Equipment, SSBFE and price of each Aircraft affected thereby and
interchangeability or replaceability of parts. If the Seller
anticipates that the scheduled delivery of any Aircraft will be
postponed by reason of such change, the delivery date of such Aircraft
as provided in Clause 9 will be extended to the extent of such
postponement.
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
3.5 Specification Changes After Delivery
Subclause 3.4 above will not require the Seller to make any changes or
modifications to, or to make any payments or take any other action with
respect to any Aircraft delivered to the Buyer before any law or
regulation referred to in Subclause 3.4 is to be complied with, except
as specifically provided otherwise in this Agreement. Any such changes
or modifications made to an Aircraft after its delivery to the Buyer
will be at the Buyer's expense.
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<PAGE> 16
4 - PRICE
4.1 Base Price of the A319 Aircraft
The "Base Price" of each A319 Aircraft is the sum of:
(i) the Base Price of the A319 Airframe, and
(ii) the Base Price of the A319 Propulsion Systems.
4.1.1 Base Price of the A319 Airframe
4.1.1.1 The Base Price of the A319 Airframe is the sum of the Base Prices set
forth below in (i) and (ii):
(i) the Base Price of the A319 Airframe, as defined in the A319
Standard Specification set forth in Exhibit A1 hereto
(excluding A319 Propulsion Systems but taking into account the
A319 marketing allowances given to the Seller by the A319
Propulsion Systems manufacturer), and SCNs set forth in
Exhibit B1, Part 1, hereto is:
US ${CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT}
(Dollars-{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}), and
(ii) the Base Price of the SCNs set forth in Exhibit B1, Part 2,
hereto is:
US $ {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT}
(Dollars-{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}).
4.1.1.2 The Base Price of the A319 Airframe is quoted at delivery conditions
prevailing in January 1996 and will be revised to the actual delivery
date of each A319 Aircraft in accordance with the Airframe Price
Revision Formula set forth in Exhibit D hereto.
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<PAGE> 17
4.1.2 Base Price of the A319 Propulsion Systems
The Base Price of a set of two (2) International Aero Engines V2524-A5
Propulsion Systems including related equipment, nacelles and thrust
reversers at delivery conditions prevailing in January 1996 is:
US ${CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT}
(Dollars-{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}).
The Base Price has been calculated with reference to the V2524-A5
Reference Price indicated by International Aero Engines of US
${CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} in accordance with economic conditions
prevailing in November 1990.
The V2524-A5 Reference Price is subject to adjustment to the date of
delivery of the A319 Aircraft in accordance with the International Aero
Engines Price Revision Formula set forth in Exhibit E1 hereto.
4.2 Base Price of the A320 Aircraft
The "Base Price" of each A320 Aircraft is the sum of:
(i) the Base Price of the A320 Airframe, and
(ii) the Base Price of the A320 Propulsion Systems.
4.2.1 Base Price of the A320 Airframe
4.2.1.1 The Base Price of the A320 Airframe is the sum of the Base Prices set
forth below in (i) and (ii):
(i) the Base Price of A320 Airframe, as defined in the A320
Standard Specification set forth in Exhibit A2 hereto
(excluding A320 Propulsion Systems), and SCNs set forth in
Exhibit B2, Part 1, hereto is:
US ${CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT}
-12-
<PAGE> 18
(Dollars-{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}), and
(ii) the Base Price of SCNs set forth in Exhibit B2, Part 2, hereto
is:
US ${CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT}
(Dollars-{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}).
4.2.1.2 The Base Price of the A320 Airframe is quoted at delivery conditions
prevailing in January 1996 and will be revised to the actual delivery
date of each A320 Aircraft in accordance with the Airframe Price
Revision Formula set forth in Exhibit D hereto.
4.2.2 Base Price of the A320 Propulsion Systems
The Base Price of a set of two (2) International Aero Engines V2527-A5
Propulsion Systems including related equipment, nacelles and thrust
reversers at delivery conditions prevailing in January 1996 is:
US ${CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT}
(Dollars--{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}).
The Base Price has been calculated with reference to the V2527-A5
Reference Price indicated by International Aero Engines of US
${CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}in accordance with economic conditions
prevailing in March 1988.
The V2527-A5 Reference Price is subject to adjustment to the date of
delivery of the A320 Aircraft in accordance with the International Aero
Engines Price Revision Formula set forth in Exhibit E2 hereto.
-13-
<PAGE> 19
4.3 Final Contract Price
The Final Contract Price of an Aircraft will be the sum of:
(i) the Base Price of the Airframe constituting a part of such
Aircraft, as adjusted to the date of delivery of such Aircraft
in accordance with Subclause 4.1.1.2 or 4.2.1.2 (as
applicable) of this Agreement;
(ii) the price (as of delivery conditions prevailing in January
1996) of any SCNs constituting a part of such Aircraft that
are entered into pursuant to Clause 3 after the date of
execution of this Agreement, as adjusted to the date of
delivery of such Aircraft in accordance with the Airframe
Price Revision Formula set forth in Exhibit D;
(iii) either the V2524-A5 Reference Price or the V2527-A5 Reference
Price of the installed Propulsion Systems constituting a part
of such Aircraft, as adjusted to the date of delivery of such
Aircraft in accordance with Subclause 4.1.2 or 4.2.2 (as
applicable) of this Agreement; and
(iv) any other amount resulting from any other provisions of this
Agreement and/or any other written agreement between the Buyer
and the Seller relating to the Aircraft and specifically
making reference to the Final Contract Price of an Aircraft.
4.4 Taxes, Duties and Imposts
4.4.1 The Seller will bear and pay the amount of any and all taxes,
withholdings, duties, imposts or similar charges that are (i) imposed
upon the Buyer, (ii) imposed upon the Seller with an obligation on the
Buyer to withhold or collect the amount thereof from the Seller or
(iii) imposed upon the Buyer with an obligation on the Seller to
withhold or collect such amount from the Buyer, and that are levied,
assessed, charged or collected for or in connection with the
fabrication, manufacture, modification, assembly, sale, delivery, use
of or payment under this Agreement for any Aircraft, component,
accessory, equipment or part delivered or furnished hereunder, provided
such taxes, duties, imposts or similar charges have been promulgated
and are enforceable under the laws of a {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
4.4.2 The Buyer will bear and pay the amount of any and all taxes,
withholdings, duties, imposts or similar charges that are (i) imposed
upon the Seller, (ii) imposed upon the Buyer with an obligation on the
Seller to collect the amount thereof for the Buyer or (iii) imposed
upon the Seller with an obligation for the Buyer to withhold such
amount from the Seller, and that are levied, assessed, charged or
collected for or in connection with the fabrication, manufacture,
modification, assembly, sale, delivery, or use of or payment
-14-
<PAGE> 20
under this Agreement for any Aircraft, component, accessory, equipment
or part delivered or furnished hereunder, provided such taxes, duties,
imposts or similar charges have been promulgated and are enforceable
under the laws of {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
4.4.3 Notwithstanding anything to the contrary in this Subclause 4.4, the
Seller will in its own name do all things necessary with respect to the
exportation of the Aircraft from Germany (in the case of A319 Aircraft)
and the Republic of France (in the case of A320 Aircraft) and will pay
any customs duties, taxes, fees, and charges required to be paid with
respect to such exportation of the Aircraft.
4.4.4 The Buyer will in its own name do all things necessary with respect to
the importation of the Aircraft into any country or jurisdiction and
will pay any customs duties, taxes {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}, fees, and charges required to
be paid with respect to such importation of the Aircraft.
4.4.5 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4.5 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
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<PAGE> 21
5 - PRICE REVISION
[Intentionally deleted]
-16-
<PAGE> 22
6 - PAYMENT TERMS
6.1 The Buyer will pay all sums due hereunder in immediately available
funds in Dollars by credit to Credit Lyonnais, New York Branch, for
transfer by Credit Lyonnais to the Seller's account with Credit
Lyonnais at 1, Esplanade Compans Caffarelli, 31000 Toulouse, France, or
to such other account as the Seller will designate by notice to the
Buyer.
6.2 Predelivery Payments/Tender of Delivery
Predelivery Payments will be paid by the Buyer to the Seller in
accordance with the provisions of Letter Agreement No. 4 to this
Agreement. If any Predelivery Payment in respect of an Aircraft is not
received prior to the Scheduled Date of Delivery of that Aircraft, or
if the Buyer fails to make any Predelivery Payment due pursuant to this
Agreement prior to the Scheduled Date of Delivery of an Aircraft, the
Seller shall have no obligation to deliver such Aircraft to the Buyer.
6.3 Payment of Final Contract Price
Subject to the terms of this Agreement, at the time the Seller tenders
an Aircraft for delivery to the Buyer in a condition that is "ready for
delivery", as defined in Subclause 9.3 below, and otherwise is in
accordance with this Agreement, the Buyer will pay to the Seller the
Final Contract Price therefor, less (if applicable) certain Predelivery
Payments received by the Seller pursuant to Letter Agreement No. 4 to
the Agreement.
6.4 Payment of Other Amounts
6.4.1 Unless otherwise expressly provided for in this Agreement, any payments
due in respect of an Aircraft in addition to those referred to in
Subclauses 6.2 and 6.3 above will be paid by the Buyer concurrently
with the delivery of the corresponding Aircraft or, if invoiced after
delivery of such Aircraft, within one (1) month after the invoice date.
6.4.2 Notwithstanding any other rights the Seller may have at contract or at
law, the Buyer and the Seller hereby agree that should any amount under
the Agreement become due and payable by the Buyer, and not be paid in
full in immediately available funds within three (3) Working Days of
the date due, then the Seller will have the right to debit and apply,
in whole or in part, the unused amount of any credit made available by
the Seller to the Buyer against such unpaid amount. The Seller will
promptly notify the Buyer in writing after such debiting and
application.
6.5 Overdue Payments
If any payment (including any Predelivery Payment) due the Seller is
not received by the Seller on the date or dates as agreed upon between
the Buyer and the Seller, the Seller will have the right to claim from
the Buyer and the Buyer will promptly pay to the Seller
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<PAGE> 23
upon receipt of such claim interest at the rate of one and one-half
percent (1.5%) per month on the amount of such overdue payment, to be
calculated from and including the due date of such payment to (but
excluding) the date such payment is received by the Seller. The
Seller's right to receive such interest will be in addition to any
other rights of the Seller hereunder or at law. The immediately
preceding sentence notwithstanding, it is agreed that the Buyer will
not be in default with respect to its obligation to make any payment so
long as each payment is received by the Seller within {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} after the
due date therefor agreed upon between the Buyer and the Seller.
6.6 Refund of Predelivery Payments
The Buyer will have no right to any refund of any Predelivery Payment
received by the Seller, except as specifically provided under this
Agreement.
6.7 Proprietary Interest
The Buyer will not, by virtue of anything contained in this Agreement
(including, without limitation, any Predelivery Payments hereunder, or
any designation or identification by the Seller of a particular
Aircraft as an Aircraft to which any of the provisions of this
Agreement refers), and notwithstanding any provision of law to the
contrary, acquire any proprietary, insurable or other interest
whatsoever in any Aircraft prior to delivery of and payment for such
Aircraft as provided in this Agreement.
6.8 Payment in Full
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}, the Buyer's obligation to make payments to the Seller
hereunder will not be affected by and will be determined without regard
to any setoff, counterclaim, recoupment, defense or other right that
the Buyer may have against the Seller or any other person and all such
payments will be made without deduction or withholding of any kind.
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}, the Buyer will ensure that the sums received by the Seller
under this Agreement will be equal to the full amounts expressed to be
due the Seller hereunder, without deduction or withholding on account
of and free from any and all taxes, imposts, duties or similar charges.
If the Buyer is compelled by law to make any such deduction or
withholding the Buyer will pay such additional amounts as may be
necessary so that the net amount received by the Seller after such
deduction or withholding will equal the amounts that would have been
received in the absence of such deduction or withholding except as
provided herein.
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<PAGE> 24
7 - PLANT REPRESENTATIVES - INSPECTION
7.1 Inspection Procedures
7.1.1 All work to be carried out on the Aircraft and all materials and parts
thereof will at all reasonable times during business hours be open to
inspection by duly authorized representatives of the Buyer or its
designee at the respective works of the Associated Contractors, and at
the works of their respective subcontractors, and such representatives
will, to carry out the aforesaid inspection, have access to such
relevant technical data as is necessary for this purpose (except that,
if access to any part of the respective works where construction is in
progress or materials or parts are stored is restricted for security
reasons, the Associated Contractors will be allowed a reasonable time
to make the items available for inspection elsewhere). The actual
detailed inspection of the Aircraft, materials and parts thereof will
take place only in the presence of the respective inspection department
personnel of the Associated Contractors or their subcontractors. The
Seller will ensure that such personnel will be available at all
reasonable times during business hours as described above.
7.1.2 For the purposes of Subclause 7.1.1 above and commencing with the date
of this Agreement until the delivery of the last Aircraft, the Seller
will furnish free-of-charge suitable space, office equipment and
facilities in or conveniently located with respect to Daimler-Benz's
works in Hamburg, Germany (in the case of A319 Aircraft) and
Aerospatiale's works in Toulouse, France (in the case of A320
Aircraft), for the use of not more than four (4) representatives of the
Buyer during the aforementioned period. Secretarial assistance may be
available by the Seller on a chargeable basis if on an exclusive basis
(non-exclusive secretarial assistance will be provided at no cost to
the Buyer). The Seller will provide telecommunications facilities at
the Buyer's cost to be invoiced on a monthly basis.
7.1.3 All inspections, examinations and discussions with the Seller's, the
Associated Contractors' or their respective subcontractors' engineering
or other personnel by the Buyer and its representatives will be
performed in such manner so as not to delay or hinder the work to be
carried out on the Aircraft or the proper performance of this
Agreement. In no event will the Buyer or its representatives be
permitted to inspect any aircraft other than the Aircraft.
7.1.4 The Seller, the Manufacturer and the Associated Contractors will
correct any deviations from the Specification discovered during any
inspection or examination.
7.2 Indemnity
The Seller will indemnify and hold harmless the Buyer, its directors,
officers, agents, and employees from and against all liabilities,
damages, losses, costs and expenses (i) for all injuries to and death
of persons (excepting injuries to or death of the Buyer's
representatives participating in any tests, checkouts or inspections or
controls under this
-19-
<PAGE> 25
Clause 7) caused by the Buyer or its representative and (ii) for any
loss of or damage to property (excepting loss of or damage to property
of the Buyer's representatives) caused by the Buyer or its
representatives, in either case when arising out of or in connection
with any such tests, checkouts, inspections or controls under this
Clause 7. This indemnity of the Seller will not apply for any such
liabilities, damages, losses, costs or expenses arising out of or
caused by the negligence or willful misconduct of the Buyer's
representatives.
The Buyer will indemnify and hold harmless the Seller, the
Manufacturer, each of the Associated Contractors and their respective
officers, agents and employees from and against all liabilities,
damages, losses, costs and expenses (i) for injuries to or death of the
Buyer's representatives participating in any tests, checkouts,
inspections or controls under this Clause 7, (ii) for loss of or damage
to property of the Buyer's representatives caused by such inspection or
(iii) arising out of or caused by the willful misconduct or negligence
of the Buyer's representatives in undertaking such inspection. With
respect to Subclauses (i) and (ii) of the preceding sentence, the Buyer
will not be obligated to indemnify or hold harmless the Seller where
the liabilities, damages, losses, costs or expenses arise from the
Seller's negligence or willful misconduct.
In the event any claim is made or lawsuit is brought against either
party (or its respective directors, officers, agents or employees) for
damages for death or injury, or for property damage, the liability for
which has been assumed by the other party pursuant to this Subclause
7.2, the former (indemnitee) will promptly give notice to the other
party (indemnitor), and the indemnitor will assume and conduct the
defense thereof, and will have the right to effect any settlement which
it, in its opinion, deems proper except that the indemnitor will not
make any settlement which includes any admission, settlement or
compromise to be made by the indemnitee without the indemnitee's
consent. In such case the indemnitor agrees to keep the indemnitee
fully advised of the conduct of the defense. In the event that the
indemnitor does not assume and conduct the defense of the claim or
lawsuit, then the indemnitee will have the right to proceed with
defense of the claim or lawsuit as it deems appropriate and will have
an action against the indemnitor for any judgments, settlements, costs
or expenses incurred in conducting the defense. For the purpose of this
Subclause 7.2, a claim or lawsuit against the Manufacturer or any of
the Associated Contractors or any of their respective directors,
officers, agents or employees will be deemed to be a lawsuit against
the Seller.
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<PAGE> 26
8 - BUYER'S ACCEPTANCE
8.1 Acceptance Procedures
8.1.1 The Seller or any Affiliate thereof acting as the Seller's designee
will give to the Buyer not less than {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT} notice of the proposed time
when the Buyer's acceptance tests will be conducted, and, in the event
that the Buyer elects to attend the tests, the Buyer will cooperate in
complying with the reasonable requirements of the Seller with the
intention of completing all tests within five (5) Working Days after
commencement. In the case of A319 Aircraft, the tests will take place
at Daimler-Benz's works in Hamburg, Germany, and in the case of A320
Aircraft, the tests will take place at Aerospatiale's works near
Toulouse, France (or at such other facilities of the Associated
Contractors or any Affiliates thereof as the Seller may specify
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}). All tests will be carried out by the personnel of the
Manufacturer (accompanied, if the Buyer so wishes, by representatives
of the Buyer up to a total of four (4) acting as observers, of whom not
more than two (2) will have access to the cockpit at any one time). The
costs of the acceptance tests will be borne by the Seller except for
such costs associated with the presence of the Buyer's
representative(s). During flight tests, the Buyer's representatives
will comply with the instructions of the Manufacturer's
representatives. The Manufacturer will not normally be required in the
course of such acceptance tests to fly an Aircraft for more than an
aggregate of three (3) hours.
8.1.2 The Seller will cause ASC, at no cost to the Buyer, to brief, and
provide one (1) free-of-charge four (4) hour simulator session for two
(2) pilots, prior to acceptance of the first A319 Aircraft. This
briefing will provide specific information related to acceptance
flights.
8.1.3 The acceptance tests will demonstrate the satisfactory functioning of
the Aircraft. The successful completion of such acceptance tests
generally in accordance with the Manufacturer's aircraft acceptance
procedure will also be deemed to demonstrate compliance with the
Specification. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} In the event that the Buyer does not attend the
tests, the Seller may complete them in the absence of the Buyer,
whereupon the Buyer will be deemed to have accepted the tests, if such
tests are reasonably deemed satisfactory by the Seller, and the Seller
will furnish such data with respect to such tests as the Buyer may
reasonably request.
8.1.4 If the acceptance tests for an Aircraft are not successfully completed
or there is a defect in the Aircraft identified by the tests, the Buyer
will promptly give notice to the Seller specifying such unsuccessful
completion or defect. The Seller will promptly carry out any necessary
repairs, corrections, or changes and, as soon as practicable thereafter
(with
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<PAGE> 27
a notice period given to the Buyer not to exceed two (2) Working Days),
resubmit the Aircraft for new acceptance tests to demonstrate the
elimination of the hindrance or defect, such tests to be held and
carried out in accordance with this Subclause 8.1.
8.2 Certificate of Acceptance
Upon the Buyer's acceptance of the Aircraft pursuant to the terms of
this Agreement, the Buyer will forthwith give to the Seller a signed
Certificate of Acceptance in the form attached as Exhibit G in respect
of the relevant Aircraft, with any remaining discrepancies noted, which
are to be remedied by the Seller after delivery of the Aircraft. Should
the Buyer fail to deliver the Certificate for reasons other than the
Aircraft not being "ready for delivery", then the Buyer will be deemed
to be in default as though it had rejected delivery of such Aircraft in
violation of this Agreement when duly tendered to it hereunder and will
thereafter bear all costs and expenses resulting from such delay in
delivery as set forth in Subclause 9.5.
8.3 Seller's Use of Aircraft
The Seller will be entitled to use,{CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}, without compensation to the
Buyer or other liability, each Aircraft prior to its delivery as may be
necessary to obtain the certificates required under Clause 2 hereof,
and such use will not affect the Buyer's obligation to accept delivery
of any Aircraft hereunder.
8.4 Finality of Acceptance
The Buyer's acceptance of delivery of each Aircraft will constitute
waiver by the Buyer of any right it may have under the Uniform
Commercial Code as adopted by the State of New York or otherwise to
revoke such acceptance for any reason, whether known or unknown to the
Buyer at the time of acceptance, provided however that this acceptance
shall not impair the Buyer's rights that derive from the warranties and
guarantees relating to the Aircraft set forth in this Agreement.
8.5 Indemnity
The Seller will indemnify and hold harmless the Buyer, its directors,
officers, agents and employees from and against all liabilities,
damages, losses, costs and expenses (i) for all injuries to and death
of persons (excepting injuries to and death of the Buyer's
representatives participating in any ground or flight tests under this
Clause 8) caused by the Buyer or its representatives and (ii) for any
loss of or damage to property (excepting loss of or damage to property
of the Buyer's representatives) caused by the Buyer or its
representatives, in either case when arising out of or in connection
with the operation of the Aircraft during any ground or flight tests
under this Clause 8. This indemnity of the Seller will not apply to any
such liabilities, damages, losses, costs or expenses arising out of or
caused by the negligence or willful misconduct of the Buyer's
representatives.
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<PAGE> 28
The Buyer will indemnify and hold harmless the Seller, the
Manufacturer, each of the Associated Contractors and each of their
respective Affiliates, directors, officers, agents and employees from
and against all liabilities, damages, losses, costs and expenses (i)
for injuries to or death of the Buyer's representatives participating
in any ground or flight tests under this Clause 8, (ii) for loss of or
damage to property of the Buyer's representatives in undertaking such
tests or (iii) arising out of or caused by the willful misconduct or
negligence of the Buyer's representatives in undertaking such tests.
With respect to Subclauses (i) and (ii) of the preceding sentence, the
Buyer will not be obligated to indemnify or hold harmless the Seller
where the liabilities, damages, losses, costs or expenses arise from
the Seller's negligence or willful misconduct.
In the event any claim is made or lawsuit is brought against either
party (or its respective directors, officers, agents or employees) for
damages for death or injury or for property damage, the liability for
which has been assumed by the other party pursuant to this Subclause
8.5, the former (indemnitee) will promptly give notice to the other
party (indemnitor), and the indemnitor will assume and conduct the
defense thereof, and will effect any settlement which it, in its
opinion, deems proper except that the indemnitor will not make any
settlement which includes any admission, settlement or compromise to be
made by the indemnitee without the indemnitee's consent. In such case
the indemnitor agrees to keep the indemnitee fully advised of the
conduct of the defense. In the event that the indemnitor does not
assume and conduct the defense of the claim or suit, then the
indemnitee will have the right to proceed with defense of the claim or
lawsuit as it deems appropriate and will have an action against the
indemnitor for any judgments, settlements, costs or expenses incurred
in conducting the defense. For the purpose of this Subclause 8.5, a
claim or lawsuit against the Manufacturer or any of the Associated
Contractors or any of their respective directors, officers, agents or
employees will be deemed to be a lawsuit against the Seller.
-23-
<PAGE> 29
9 - DELIVERY
9.1 A319 Aircraft Delivery Schedule
Subject to the provisions of this Agreement, the Seller will have the
A319 Aircraft ready for delivery at Daimler-Benz's works in Hamburg,
Germany, and the Buyer will accept the same, during the months set
forth below:
<TABLE>
<CAPTION>
A319 Aircraft No. Month/Year of Delivery
----------------- ----------------------
<S> <C>
1
2
{CONFIDENTIAL
3 MATERIAL
OMITTED AND
4 FILED
SEPARATELY
5 WITH THE
SECURITIES AND
6 EXCHANGE
COMMISSION
7 PURSUANT TO A
REQUEST FOR
8 CONFIDENTIAL
TREATMENT}
9
10
11
12
{CONFIDENTIAL
13 MATERIAL
OMITTED AND
14 FILED
SEPARATELY
15 WITH THE
SECURITIES AND
16 EXCHANGE
COMMISSION
17 PURSUANT TO A
REQUEST FOR
18 CONFIDENTIAL
TREATMENT}
19
20
21
22
</TABLE>
The Seller will, no earlier than{CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}, provide the Buyer with the
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} such A319 Aircraft will be tendered for delivery to the
Buyer in a condition which is "ready for delivery" as set forth in
Subparagraph 9.3 below and otherwise in accordance with this Agreement.
The Seller shall give the Buyer not less than{CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} notice of
the date on which the Aircraft will be tendered for delivery to the
Buyer in a condition which is "ready for delivery" as set forth in
Subparagraph 9.3 below and otherwise in accordance with this Agreement.
-24-
<PAGE> 30
9.2 A320 Aircraft Delivery Schedule
Subject to the provisions of this Agreement, the Seller will have the
A320 Aircraft ready for delivery at Aerospatiale's works near Toulouse,
France, and the Buyer will accept the same, during the months set forth
below:
<TABLE>
<CAPTION>
A320 Aircraft No. Month/Year of Delivery
----------------- ----------------------
<S> <C>
1
2
{CONFIDENTIAL
3 MATERIAL
OMITTED AND
4 FILED
SEPARATELY
5 WITH THE
SECURITIES AND
6 EXCHANGE
COMMISSION
7 PURSUANT TO A
REQUEST FOR
8 CONFIDENTIAL
TREATMENT}
9
10
11
12
13
14
{CONFIDENTIAL
15 MATERIAL
OMITTED AND
16 FILED
SEPARATELY
17 WITH THE
SECURITIES AND
18 EXCHANGE
COMMISSION
19 PURSUANT TO A
REQUEST FOR
20 CONFIDENTIAL
TREATMENT}
21
22
23
24
</TABLE>
The Seller will, no earlier than{CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}, provide the Buyer with
the{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} such A320 Aircraft will be tendered for
delivery to the Buyer in a condition which is "ready for delivery" as
set forth in Subparagraph 9.3 below and otherwise in accordance with
this Agreement. The Seller shall give the Buyer not less
than{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} notice of the date on which the Aircraft will
be tendered for delivery to the Buyer in a condition which is "ready
for delivery" as set forth in Subparagraph 9.3 below and otherwise in
accordance with this Agreement.
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<PAGE> 31
9.3 Certificate of Airworthiness
Each Aircraft will for the purpose of this Agreement be deemed to be
"ready for delivery" upon the satisfactory completion of its acceptance
tests and the issuance of an LBA (in the case of A319 Aircraft) or a
DGAC (in the case of A320 Aircraft) Certificate of Airworthiness for
Export in the "Transport Category" with respect thereto and the
Seller's compliance with the other obligations to be performed by it
under Subclause 2.3 hereof (including but not limited to the Aircraft
being delivered in a condition enabling the Buyer (or a person eligible
to obtain such certificate under then applicable law) to obtain a
Standard Airworthiness Certificate).
9.4 Title
Title to and risk of loss of and damage to the Aircraft will pass to
the Buyer upon delivery of the Aircraft concurrently with the execution
of the Certificate of Acceptance and the payment of the Final Contract
Price for such Aircraft. The Seller will provide the Buyer with such
appropriate documents of title (such title to be good and marketable)
or other documents as the Buyer may reasonably request.
9.5 Overdue Payment or Flyaway
In the event that:
(i) the delivery of and payment of the Final Contract Price for an
Aircraft is delayed more than {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
after the firm delivery date established pursuant to Subclause
9.1 (in the case of A319 Aircraft) or Subclause 9.2 (in the
case of A320 Aircraft) due to any act or omission of the Buyer
(except if due to a defect in an Aircraft as identified
pursuant to Subclause 8.1 above, or the rescheduling of the
acceptance tests by the Seller pursuant to this Agreement), or
(ii) within {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT} after delivery of an
Aircraft the Buyer has failed to remove such Aircraft for
whatever reason (except for reasons directly attributable to
the Seller),
then the Buyer will on demand reimburse the Seller for all reasonable
costs and expenses (including, without limitation, costs and expenses
attributable to storage, preservation and protection, insurance and
taxes) sustained by the Seller and resulting from any such delay or
failure. Such reimbursement will be in addition to any other rights
that the Seller may have as a result of any such delay or failure.
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<PAGE> 32
9.6 Flyaway Expenses
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
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10 - EXCUSABLE DELAY
10.1 Scope
Neither the Seller nor the Manufacturer will be responsible for or be
deemed to be in default on account of delays in delivery or failure to
deliver or otherwise in the performance of this Agreement or any part
hereof due to causes reasonably beyond the Seller's, the Manufacturer's
or any Associated Contractor's control or not occasioned by the
Seller's, the Manufacturer's or any Associated Contractor's fault or
negligence unless caused by the Seller's or the Manufacturer's gross
negligence or willful misconduct ("Excusable Delay"), including, but
not limited to: acts of God or the public enemy, natural disasters,
fires, floods, storms beyond ordinary strength, explosions or
earthquakes; epidemics or quarantine restrictions; serious accidents;
total or constructive total loss; any law, decision, regulation,
directive or other act (whether or not having the force of law) of any
government or of the Council of the European Community or the
Commission of the European Community or of any national, Federal,
State, municipal or other governmental department, commission, board,
bureau, agency, court or instrumentality, domestic or foreign;
governmental priorities, regulations or orders affecting allocation of
materials, facilities or a completed Aircraft; war, civil war or
warlike operations, terrorism, insurrection or riots; failure of
transportation; strikes or labor troubles causing cessation, slow down
or interruption of work; after timely and good faith application, delay
in obtaining any airworthiness or type certification; inability after
due and timely diligence to procure materials, accessories, equipment
or parts; general hindrance in transportation; or failure of a
subcontractor or Vendor to furnish materials, components, accessories,
equipment or parts.
It is expressly understood and agreed that each of any (i) delay caused
by the action or inaction of the Buyer, and (ii) delay in delivery or
otherwise in the performance of this Agreement by the Seller due in
whole or in part to any delay in or failure of the delivery of, or any
other event or circumstance relating to, the Propulsion Systems, SSBFE,
or Buyer Furnished Equipment, will constitute Excusable Delay for the
Seller. A delay in delivery relating to a delay contemplated under
Subclause 3.4 of this Agreement shall be an Excusable Delay under this
Clause 10. A delay in delivery relating to a delay contemplated under
Clause 9 of this Agreement due to an Aircraft not being "ready for
delivery" shall be covered by the provisions of Clause 11 of this
Agreement.
The Seller will as soon as practicable after becoming aware of any
delay or failure falling within the provisions of this Subclause 10.1
(x) notify the Buyer of such delay and of the probable extent thereof
and (y) subject to the following provisions, as soon as practicable
after the removal of the cause or causes for delay or failure, resume
the performance of those obligations affected under this Agreement.
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<PAGE> 34
10.2 Unanticipated Excusable Delay
In the event that the delivery of any Aircraft is delayed by reason of
an Excusable Delay for a period of more than {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} after the
Scheduled Date of Delivery, the Buyer or the Seller will each be
entitled to terminate this Agreement with respect only to the Aircraft
so affected upon written notice given within thirty (30) days after the
expiration of such {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} period. Such termination will discharge all
obligations and liabilities of the parties hereunder with respect to
such affected Aircraft, except as set forth otherwise in Letter
Agreement No. 4 to the Agreement.
10.3 Anticipated Excusable Delay
In respect of any Aircraft, if in good faith and in accordance with its
normal scheduling procedures, the Seller concludes that Excusable
Delays will (i) cause delay in delivery of such Aircraft for a period
of more than {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} after the Scheduled Date of Delivery, or (ii)
prevent delivery of such Aircraft, the Seller will give written notice
to the Buyer of either (i) such delay and its related rescheduling
reflecting such delay(s) or (ii) such nondelivery. Within thirty (30)
days after the Buyer's receipt of such notice, either party may
terminate this Agreement as to such rescheduled or nondeliverable
Aircraft by giving written notice to the other party. Such termination
will discharge all obligations and liabilities of the parties hereunder
with respect to such affected Aircraft, except as set forth otherwise
in Letter Agreement No. 4 to the Agreement.
10.4 Delivery Date
If, following notice of an anticipated delay under Subclause 10.3, this
Agreement is not terminated in accordance with the provisions of such
Subclause (with respect to the affected Aircraft), then the date of
delivery otherwise required hereunder will be extended by a period
equal to the delay specified in such notice.
10.5 Lost, Destroyed or Damaged Aircraft
If any Aircraft is lost, destroyed or damaged beyond economic repair
prior to delivery thereof, then this Agreement will be terminated with
respect to such Aircraft and the obligations and liabilities of the
parties hereunder with respect to such Aircraft will be discharged
except as set forth otherwise in Letter Agreement No. 4 to the
Agreement.
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<PAGE> 35
10.6 Remedies
This Clause 10 and Letter Agreement No. 4 to the Agreement set forth
the sole and exclusive remedy of the Buyer for Excusable Delays in
delivery or for Aircraft lost, destroyed, or damaged beyond repair, and
the Buyer hereby waives all rights, including without limitation any
rights to incidental and consequential damages or specific performance,
to which it would otherwise be entitled in respect thereof.
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<PAGE> 36
11 - INEXCUSABLE DELAY
11.1 Liquidated Damages
Should an Aircraft not be ready for delivery to the Buyer within
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} of the Scheduled Date of Delivery for reasons other than as
are described in Clause 10, the Buyer will, in respect of any
subsequent delay in delivery of such Aircraft, have the right to claim
and the Seller will in respect of any subsequent delay, at the Seller's
option, pay or credit to the Buyer as liquidated damages for the delay
in delivery of such Aircraft {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT} until either the actual date of
delivery of the Aircraft or the effective date of the written notice of
termination referred to in Subclause 11.3 or 11.4 plus any amount
referred to in Letter Agreement No. 4 to the Agreement, if applicable.
11.2 Total Liability
The total liability of the Seller under this Clause 11 and this
Agreement with respect to any Aircraft will in no event exceed the
total sum of US ${CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} (Dollars-{CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}) plus any amount referred to
in Letter Agreement No. 4 to the Agreement, if applicable.
11.3 Unanticipated Inexcusable Delay
In the event that the delivery of any Aircraft is delayed by reason of
a delay as described in this Clause 11 for a period of more than
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} after the Scheduled Date of Delivery, the Buyer or the
Seller will each be entitled to terminate this Agreement with respect
only to the Aircraft so affected upon written notice given within
thirty (30) days after the expiration of such {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} period.
Such termination will discharge all obligations and liabilities of the
parties hereunder with respect to such affected Aircraft, except as set
forth otherwise in Letter Agreement No. 4 to the Agreement.
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<PAGE> 37
11.4 Anticipated Inexcusable Delay
In respect of any Aircraft, if in good faith and in accordance with its
normal scheduling procedures, the Seller concludes that a delay as
described in this Clause 11 will (i) cause delay in delivery of such
Aircraft for a period of more than {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT} after the Scheduled Date of
Delivery, or (ii) prevent delivery of such Aircraft, the Seller will
give written notice to the Buyer of either (i) such delay and its
related rescheduling reflecting such delay(s) or (ii) such nondelivery.
Within thirty (30) days after the Buyer's receipt of such notice,
either party may terminate this Agreement as to such rescheduled or
nondeliverable Aircraft by giving written notice to the other party.
Such termination will discharge all obligations and liabilities of the
parties hereunder with respect to such affected Aircraft, except as set
forth otherwise in Letter Agreement No. 4 to the Agreement.
11.5 Delivery Date
If, following notice of an anticipated delay under Subclause 11.4, this
Agreement is not terminated in accordance with the provisions of such
Subclause (with respect to the affected Aircraft), then the Scheduled
Date of Delivery will be extended by a period equal to the delay
specified in such notice.
11.6 Remedies
This Clause 11 sets forth the sole and exclusive remedy of the Buyer
for delays in delivery or failure to deliver, other than such delays or
failures as are covered by Clause 10, and the Buyer hereby waives all
rights, including without limitation any rights to incidental and
consequential damages or specific performance, to which it would
otherwise be entitled in respect thereof. The Buyer will not be
entitled to claim the remedies and receive the benefits provided in
this Clause 11 or in Letter Agreement No. 4 to the Agreement where the
delay or failure to deliver referred to in this Clause 11 is caused by
the negligence or fault of the Buyer or its representatives.
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<PAGE> 38
12 - WARRANTIES AND SERVICE LIFE POLICY
The Seller, in its capacity as "Buyer" under its arrangements with the
Manufacturer, has negotiated and obtained the following Standard
Warranty, Service Life Policy, Vendor Warranties and Interface
Commitment from the Manufacturer with respect to the Aircraft, subject
to the terms, conditions, limitations and restrictions (including, but
not limited to, the Exclusivity of Warranties and General Limitations
of Liability and Duplicate Remedies provisions) all as hereinafter set
out. The Seller hereby assigns to the Buyer, and the Buyer hereby
accepts, all of the rights and obligations of the Seller in its
capacity as "Buyer" as aforesaid under the Standard Warranty, Service
Life Policy, Vendor Warranties and Interface Commitment and the Seller
subrogates the Buyer into all such rights and obligations in respect of
the Aircraft. The Seller hereby warrants to the Buyer that it has all
requisite authority to make the foregoing assignment and effect the
foregoing subrogation to and in favor of the Buyer and that it will not
enter into any amendment of the provisions so assigned without the
prior written consent of the Buyer. Capitalized terms utilized in the
following provisions have the meanings assigned thereto in this
Agreement, except that the term "Seller" refers to the Manufacturer and
the term "Buyer" refers to the Seller.
QUOTE
12.1 Standard Warranty
12.1.1 Nature of Warranty
Subject to the limitations and conditions as hereinafter provided, and
except as provided in Subclause 12.1.2, the Seller warrants to the
Buyer that each Aircraft and each Warranted Part will at the time of
delivery to the Buyer:
(i) be free from defects in material,
(ii) be free from defects in workmanship, including, without
limitation, processes of manufacture,
(iii) be free from defects in design (including, without limitation,
selection of materials) having regard to the state of the art
at the date of such design,
(iv) be free from defects arising from failure to conform to the
Specification, except as to those portions of the
Specification that are expressly stated in the Specification
to be estimates or approximations or design aims, and
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
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<PAGE> 39
For the purposes of this Agreement, the term "Warranted Part" will mean
any Seller proprietary component, equipment, accessory or part that (a)
is installed on such Aircraft, (b) is manufactured to the detail design
of the Seller or a subcontractor of it and (c) bears a part number of
the Seller.
12.1.2 Exceptions
The warranties set forth in Subclause 12.1.1 will not apply to Buyer
Furnished Equipment, SSBFE, nor to the Propulsion Systems, nor to any
component, accessory, equipment or part purchased by the Buyer that is
not a Warranted Part, provided, however, that:
(i) any defect in the Seller's workmanship in respect of the
installation of such items in the Aircraft, including any
failure by the Seller to conform to the installation
instructions of the manufacturers of such items that
invalidates any applicable warranty from such manufacturers,
will constitute a defect in workmanship for the purpose of
this Subclause 12.1 and be covered by the warranty set forth
in Subclause 12.1.1(ii), and
(ii) any defect inherent in the Seller's design of the
installation, in view of the state of the art at the date of
such design, that impairs the use of such items will
constitute a defect in design for the purposes of this
Subclause 12.1 and be covered by the warranty set forth in
Subclause 12.1.1(iii).
12.1.3 Warranty Periods
The warranties described in Subclauses 12.1.1 and 12.1.2 hereinabove
will be limited to those defects that become apparent {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
12.1.4 Buyer's Remedy and Seller's Obligation
12.1.4.1 The Buyer's remedy and the Seller's obligation and liability under
Subclauses 12.1.1 and 12.1.2 are limited to the repair, replacement or
correction, (or to the supply of modification kits rectifying the
defect) at the Seller's expense and option, of any Warranted Part which
is defective together with a credit by the Seller for the account of
the Buyer in an amount equal to the direct labor costs (such credit not
to exceed the rate set forth in Subclause 12.1.7(v)) expended by the
Buyer {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} in the removal, disassembly, reassembly and
reinstallation of such Warranted Part, such credit being subject to the
Buyer's proper and efficient handling of such tasks.
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<PAGE> 40
Alternatively, the Seller may at its option furnish a credit to the
Buyer for the future purchase of Material equal to the price at which
the Buyer is then entitled to acquire a replacement for the defective
Warranted Part. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} Nothing herein contained will obligate the
Seller to correct any failure to conform to the Specification with
respect to components, equipment, accessories or parts that the parties
agree in writing at the time of delivery of the affected Aircraft are
acceptable deviations.
12.1.4.2 In the event a defect covered by Subclause 12.1.1(iii), 12.1.1(iv) and
12.1.2(ii) becomes apparent within the applicable period set forth in
Subclause 12.1.3 and the Seller is obligated to correct such defect,
the Seller will also make such correction in any Aircraft that has not
already been delivered to the Buyer, provided however, that the Seller
will not be responsible nor deemed to be in default on account of any
delay in delivery of any Aircraft due to the Seller's undertaking to
make such correction {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}, and provided further that, rather
than accept a delay in delivery of any such Aircraft, the Buyer and the
Seller may agree to deliver such Aircraft with subsequent correction of
the defect by the Buyer at the Seller's expense, or the Buyer may elect
to accept delivery and thereafter file a Warranty Claim as though the
defect had become apparent immediately after delivery of such Aircraft.
12.1.4.3 In addition to the remedies set forth in Subclauses 12.1.4.1 and
12.1.4.2, the Seller will reimburse the Buyer for its direct labor
costs (together with reasonable material cost) spent by the Buyer in
performing inspections of the Aircraft to determine whether a defect
exists in any Warranted Part up to expiration of the warranty period
set forth above in Subclause 12.1.3 {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}. The labor rate will be as
defined below in Subclause 12.1.7(v). The above commitment is subject
to the following conditions:
(i) such inspections are recommended by the Buyer's FAA-approved
maintenance program, an airworthiness directive, or a Seller
Service Bulletin to be performed within the above covered
period;
(ii) such inspections will be performed, if possible, during a
scheduled maintenance check recommended by the Buyer's
FAA-approved maintenance program;
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<PAGE> 41
(iii) the Buyer has not unreasonably rejected the Seller's offer for
corrective action before or at the time of the Buyer's
performance of such inspections; and
(iv) the Buyer has consulted in good faith with the RCSR to review
and agree on the manhours to be used by the Buyer for such
inspections.
12.1.4.4 The Seller will also assist the Buyer upon request in loaning or
leasing a replacement part for the Warranted Part under warranty repair
under this Clause 12. {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}
12.1.5 Warranty Claim Requirements
The Buyer's remedy and the Seller's obligation and liability under this
Subclause 12.1, with respect to each claimed defect, are subject to the
following conditions precedent:
(i) the existence of a defect covered by the provisions of this
Subclause 12.1,
(ii) the defect's having become apparent within the applicable
warranty period, as set forth in Subclause 12.1.3,
(iii) the Buyer's having submitted to the Seller proof reasonably
satisfactory to the Seller that the claimed defect is due to a
matter embraced within this Subclause 12.1, and that such
defect was not caused by the Buyer's misuse of the Aircraft or
the Warranted Part, as the case may be,
(iv) at the Seller's request, the Buyer's having returned within
industry practice leadtime, the Warranted Part claimed to be
defective to such repair facilities as may be designated by
the Seller, except where the Buyer elects to repair a
defective Warranted Part in accordance with the provisions of
Subclause 12.1.7, and
(v) the Seller's having received a Warranty Claim fulfilling the
conditions of and in accordance with the provisions of
Subclause 12.1.6 and 12.1.7 below,{CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
12.1.6 Warranty Administration
The warranties set forth in Subclause 12.1 will be administered as
hereinafter provided:
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<PAGE> 42
(i) Claim Determination
Warranty Claim determination by the Seller will be
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} from the date of receipt of the
Buyer's Warranty Claim.
(ii) Transportation and Insurance Costs
Transportation, insurance and any other costs associated with
(i) the sending of a defective Warranted Part to the
facilities designated by the Seller, and (ii) the return to
the Buyer thereof shall be borne by the {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
(iii) Return of an Aircraft
In the event that the Buyer desires to return an Aircraft to
the Seller for consideration of a Warranty Claim, the Buyer
will notify the Seller of its intention to do so and the
Seller will, prior to such return, have the right to inspect
such Aircraft and thereafter, without prejudice to its rights
hereunder, to repair such Aircraft, at its sole option, either
at the Buyer's facilities or at another place acceptable to
the Seller at the {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} expense. If
the Seller agrees that the return of the Aircraft is necessary
to effect the necessary repairs, the Aircraft will be
transported to and from the Seller's facilities at the
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} expense. If the Seller does not agree
that the return of an Aircraft is the best reasonable handling
of a Warranty Claim, then the return of such Aircraft by the
Buyer to the Seller and return of such Aircraft to the Buyer's
facilities shall be at the {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} expense.
(iv) On-Aircraft Work by the Seller
In the event the Seller agrees that the dispatch of a working
team to repair or correct such defect at the Buyer's
facilities is the most efficient procedure, the Seller shall
bear the cost of its team's dispatch in addition to the direct
costs incurred in performing such repair or correction.
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<PAGE> 43
Any work performed by the Seller to rectify defects, which if
performed by the Buyer would not be eligible for a warranty
credit under the terms of Subclause 12.1.7(v), shall be at the
Buyer's expense, but must be authorized by the Buyer prior to
performance. The rate charged by the Seller for any such
services shall be as set forth in Subclause 12.1.7(v).
(v) Warranty Claim Substantiation
In connection with each claim by the Buyer made under this
Subclause 12.1, the Buyer shall file a claim on the Buyer's
form ("Warranty Claim") within {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
after such defect becomes apparent. Such form must contain at
least the following data:
(a) description of defect and action taken, if any,
(b) date of incident and/or of removal,
(c) description of the defective part,
(d) part number,
(e) serial number (if applicable),
(f) position on Aircraft, according to Catalog Sequence
Number (CSN) of the Illustrated Parts Catalog,
Component Maintenance Manual or Structural Repair
Manual (as such documents are defined in Clause 14
and Exhibit H hereto) as applicable,
(g) total flying hours or calendar times, as applicable,
at the date of appearance of a defect, if available
(h) time since last shop visit at the date of defect
appearance, if available
(i) Manufacturer's serial number of the Aircraft and/or
its registration number,
(j) Aircraft total flying hours and/or number of landings
at the date of defect appearance,
(k) claim number,
(l) date of claim, and
(m) date of delivery of an Aircraft or part to the Buyer.
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<PAGE> 44
and in the case of Warranty Claim under Subclause 12.1.7, with
the additional data required under Subclause 12.1.7(iv).
Claims are to be addressed as follows:
AIRBUS INDUSTRIE
SUPPORT DIVISION
WARRANTY ADMINISTRATION
ROND-POINT MAURICE BELLONTE
F-31707 BLAGNAC
FRANCE
FAX - 33-5-61-71-22-25
(vi) Replacements
Replacements made pursuant to this Subclause 12.1 will be made
within the leadtime defined in the Seller's Spare Parts Price
List {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT}
Title to and risk of loss of any Aircraft, component,
accessory, equipment or part returned by the Buyer to the
Seller shall at all times remain with the Buyer, except title
to and risk of loss of a returned component, accessory,
equipment or part shall pass to the Seller upon receipt by the
Buyer of any item furnished by the Seller to the Buyer as a
replacement therefor. Upon the Buyer's receipt of any
replacement component, accessory, equipment or part provided
by the Seller pursuant to this Subclause 12.1, title to and
risk of loss of such component, accessory, equipment or part
shall pass to the Buyer. In addition to the other
responsibilities set out herein, the Seller shall have
responsibility for returned Aircraft, and for any returned
component, accessory, equipment or part so long as the Buyer
has title thereto, as is chargeable by law to a bailee for
hire, but the Seller shall not be liable for loss of use
except in the event of gross negligence or willful misconduct.
(vii) Seller's Rejection
The Seller shall provide reasonable, written substantiation in
case of rejection of a claim. {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
to pay to the Seller reasonable inspection and test charges
incurred by the Seller in connection with the investigation
and processing of such claim, provided that the Buyer shall
not be liable for the abovementioned investigation, test and
other charges in the event the Buyer has tested and/or removed
a Warranted Part in strict observance of all
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<PAGE> 45
of the Seller's documentation affecting such Warranted Part,
as well as in full accordance with the indications of the
Aircraft's electronic monitoring systems and with the
agreement of the Seller's field representative.
Transportation, insurance, and any other costs associated with
the sending of any Warranted Part or any other item,
equipment, component or part for which the Buyer's warranty
claim is rejected by the Seller will be borne by the Buyer.
(viii) Seller's Inspection
The Seller shall have the right to inspect the affected
Aircraft and documents and other records relating thereto in
the event of any claim under this Subclause 12.1, provided
that such inspection does not interfere with the Buyer's
operation of the Aircraft.
12.1.7 In-house Warranty
(i) Buyer's Authorization
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} the Buyer {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
is hereby authorized to perform the repair of Warranted Parts,
subject to the terms of this Subclause 12.1.7 ("In-house
Warranty").
(ii) Conditions for Buyer's Authorization
The Buyer {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT} will be entitled to repair
such Warranted Parts:
(a) only if adequate facilities and qualified personnel
are available to the Buyer {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT},
(b) in accordance with the Seller's written instructions
set forth in documents such as the Aircraft
Maintenance Manual, Component Maintenance Manual
(Manufacturer), Component Maintenance Manual (Vendor)
and Structural Repair Manual, and
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<PAGE> 46
(c) only to the extent specified by the Seller, or, in
the absence of such specification, to the extent
reasonably necessary to correct the defect, in
accordance with the standards set forth in Subclause
12.1.10.
(iii) Seller's Rights
The Seller shall have the right to have any Warranted Part, or
any part removed therefrom, which is claimed to be defective,
returned to the Seller, as set forth in Subclause 12.1.6(ii),
if, in the judgment of the Seller, the nature of the defect
requires technical investigation provided that the return of
such Warranted Part to the Seller does not unreasonably
deplete the Buyer's availability of spare parts,{CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}. The Seller and the Buyer shall further have the
right to each have a representative present during the
disassembly, inspection and testing of any Warranted Part
claimed to be defective.
(iv) In-house Warranty Claim Substantiation
Claims for In-house Warranty credit will be filed within the
time period set forth in and will contain the same information
required in Warranty Claims under Subclause 12.1.6(v) and in
addition will include:
(a) a report of technical findings with respect to the
defect,
(b) for parts required to remedy the defect:
- part numbers,
- serial numbers (if applicable),
- description of the parts,
- quantity of parts,
- unit price of parts,
- total price of parts,
- related Seller's or third party's invoices (if
applicable),
(c) detailed number of labor hours,
(d) agreed In-house Warranty Labor Rate,
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<PAGE> 47
(e) total claim value.
(v) Credit
The Buyer's sole remedy, and the Seller's sole obligation and
liability, in respect of In-house Warranty Claims, will be a
credit to the Buyer's account. {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
The credit to the Buyer's account will be equal to the direct
labor cost expended in performing a repair and to the direct
cost of materials incorporated in the repair. Such costs will
be determined as set forth below.
(a) To determine direct labor costs, only man-hours spent
on removal, replacement, disassembly, inspection,
repair, reassembly, and final inspection and test
(including flight tests if flight tests prove
necessary to complete a repair under the In-house
Warranty) of the Warranted Part alone will be
counted. Man-hours required for maintenance work
concurrently being carried out on the Aircraft or
Warranted Part will not be included.
The man-hours counted as set forth above will be
multiplied by an agreed labor rate representing the
Buyer's {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} composite average hourly labor rate
(excluding all fringe benefits, premium time
allowances, social security charges, business taxes
and similar items) paid to the Buyer's employees
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT} whose jobs
are directly related to the performance of the repair
(the "In-house Warranty Labor Rate"). It is agreed
that for the purpose hereof the In-house Warranty
Labor Rate is US ${CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} (Dollars--{CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}) at economic conditions prevailing in
January 1996.
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<PAGE> 48
Such In-house Warranty Labor Rate is subject to
adjustment annually by multiplying by the ratio
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}. For the
purposes of this Subclause 12.1.7(v)
only,{CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} is equal to the Labor Index defined in
Exhibit D of this Agreement for January of the year
in which man-hours are spent and {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT} is equal to such
Labor Index for January 1996.
(b) Direct material costs are determined by the prices at
which the Buyer {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} acquired such material, excluding any
parts and materials used for overhaul furnished
free-of-charge by the Seller.
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}
(vi) Limitation on Credit
The Buyer will in no event be credited for repair costs
(including labor and material) for any Warranted Part
exceeding sixty-five percent (65%) of the Seller's current
catalog price as set forth in Letter Agreement No. 1 hereto
for a replacement of such defective Warranted Part
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
(vii) Scrapped Material
The Buyer will retain any Warranted Part defective beyond
economic repair and any defective part removed from a
Warranted Part during repair for a period of {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} after submission of a claim for In-house Warranty
credit relating thereto. Such parts will be returned to the
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<PAGE> 49
Seller within {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} of receipt
of the Seller's request to that effect.
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}.
Notwithstanding the foregoing, the Buyer may, with the
agreement of the Seller's field representative, scrap any such
defective parts that are beyond economic repair and not
required for technical evaluation.
(viii) LIMITATIONS ON LIABILITY OF SELLER
EXCEPT AS SPECIFIED HEREIN, THE SELLER WILL NOT BE LIABLE FOR
ANY RIGHT, CLAIM OR REMEDY, AND THE BUYER WILL INDEMNIFY THE
SELLER AGAINST THE CLAIMS OF ANY THIRD PARTIES FOR ANY DEFECT,
NONCONFORMANCE OR PROBLEM OF ANY KIND, ARISING OUT OF OR IN
CONNECTION WITH ANY REPAIR OF WARRANTED PARTS UNDER THIS
SUBCLAUSE 12.1.7, INCLUDING BUT NOT LIMITED TO: (i) LIABILITY
IN CONTRACT OR TORT, AND (II) LIABILITY ARISING FROM THE
BUYER'S ACTUAL OR IMPUTED NEGLIGENCE, INTENTIONAL TORTS AND/OR
STRICT LIABILITY.
12.1.8 Standard Warranty Transferability
The warranties provided for in this Subclause 12.1 for any Warranted
Part will accrue to the benefit of any airline in revenue service other
than the Buyer, if the Warranted Part enters into the possession of any
such airline as a result of a pooling or leasing agreement between such
airline and the Buyer, in accordance with the terms and subject to the
limitations and exclusions of the foregoing warranties.
12.1.9 Warranty for Corrected, Replacement or Repaired Warranted Parts
Whenever any Warranted Part that contains a defect for which the Seller
is liable under Subclause 12.1 has been corrected, repaired or replaced
pursuant to the terms of this Clause 12, the period of the Seller's
warranty with respect to such corrected, repaired or replaced Warranted
Part, whichever may be the case, will be {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
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<PAGE> 50
12.1.10 Good Airline Operation - Normal Wear and Tear
The Buyer shall maintain, operate and repair the Aircraft and each
component, equipment, accessory and part thereof in accordance with
good commercial airline practice, all technical documentation and
generally in accordance with other recommendations issued by the
Seller, the Vendors or the manufacturer of the Propulsion Systems and
all applicable rules, regulations and directives of the FAA, provided
however that all applicable rules, regulations and directives of the
FAA shall prevail over the recommendations issued by the Seller, the
Vendors, or the manufacturer of the Propulsion Systems in the event of
conflict, up until such conflict is resolved by the parties to the
Buyer's and Seller's satisfaction.
The Seller's liability under this Subclause 12.1 will not extend to
normal wear and tear nor to:
(i) any Aircraft or component, equipment, accessory or part
thereof that has been repaired, altered or modified after
delivery except by the Seller or by the Buyer or the Buyer's
contractor pursuant to this Clause 12 in a manner approved by
the Seller if such repair, alteration or modification caused
the Warranted Part to be defective;
(ii) any Aircraft or component, equipment, accessory or part
thereof that has been operated in a damaged state if such
damage caused a Warranted Part to be defective; or
(iii) any component, equipment, accessory or part from which the
trademark, trade name, part or serial number or other
identification marks have been removed,
unless the Buyer submits evidence satisfactory to the Seller that the
defect did not arise from or was not contributed to by any one or more
of the above cases.
12.2 Seller Service Life Policy
In addition to the warranties set forth in Subclause 12.1 above, the
Seller further agrees that should a Failure occur in any Item, then,
subject to the general conditions and limitations set forth in
Subclause 12.2.4 below, the provisions of this Subclause 12.2 will
apply.
12.2.1 Definitions
For the purposes of this Subclause 12.2, the following definitions will
apply:
12.2.1.1 "Item" means any of the Seller components, equipment,
accessories or parts listed in Exhibit F hereto which are
installed on an Aircraft at any time during the period of
effectiveness of the Service Life Policy as defined below in
Subclause 12.2.2.
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<PAGE> 51
12.2.1.2 "Failure" means any breakage of, or defect in, an Item which
has occurred, and which can reasonably be expected to occur on
a repetitive or fleetwide basis, and which measurably impairs
the utility or safety of the Item.
12.2.2 Periods and Seller's Undertaking
Subject to the general conditions and limitations set forth in
Subclause 12.2.4 below, the Seller agrees that if a Failure occurs in
an Item within {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} after the delivery of the Aircraft to the
Buyer, the Seller will, at its own discretion, as promptly as
practicable and for a price that reflects the Seller's financial
participation as hereinafter provided, either:
12.2.2.1 design and furnish to the Buyer a correction for such Item
subject to a Failure and provide any parts required for such
correction (including Seller designed standard parts but
excluding industry standard parts), or,
12.2.2.2 replace such Item.
12.2.3 Seller's Participation in the Cost
Any part or Item that the Seller is required to furnish to the Buyer
under this Service Life Policy in connection with the correction or
replacement of an Item will be furnished to the Buyer at the Seller's
current sales price therefor, but with deduction to take into account
the Seller's financial participation determined in accordance with the
following formula:
C (N - T)
----------
P = N
where
P: financial participation of the Seller,
C: the Seller's then current sales price for the required Item or
required Seller designed parts,
T: total time in months since delivery of the particular Aircraft
in which the Item subject to a Failure was originally
installed, and,
N: {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
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<PAGE> 52
12.2.4 General Conditions and Limitations
12.2.4.1 The undertakings given in this Subclause 12.2 shall not apply
during the period of the Seller's warranty under Subclause
12.1.
12.2.4.2 (i) The Buyer will maintain log books and other
historical records with respect to each Item adequate
to enable determination as to whether the alleged
Failure is covered by this Service Life Policy (and
keep the Seller informed of any significant incidents
through the RCSR) and, if so, to define the portion
of the cost to be borne by the Seller in accordance
with Subclause 12.2.3 above.
(ii) The Buyer will comply with the terms of Subclause
12.1.10 above and provide proof reasonably
satisfactory to the Seller that the Failure is due to
a matter embraced within this Subclause 12.2. and
that such Failure was not caused by the misuse of the
Aircraft or the Item, as the case may be.
(iii) The Buyer will carry out specific structural
inspection programs for monitoring purposes
compatible with the Buyer's operational requirements
as may be established from time to time by mutual
agreement between the Buyer and the Seller and in
accordance with the Buyer's FAA-approved maintenance
program.
(iv) In the case of any breakage or defect, the Buyer will
report the same in writing to the Seller within
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT} after any
breakage or defect in an Item becomes apparent, if
the breakage or defect can reasonably be expected to
occur in any other Aircraft, and the Buyer will
inform the Seller in sufficient detail about the
breakage or defect to enable the Seller to determine
whether the breakage or defect is subject to this
Service Life Policy,{CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
12.2.4.3 Except as otherwise provided in this Subclause 12.2, any claim
under this Service Life Policy will be administered as
provided in, and will be subject to the terms and conditions
of, Subclause 12.1.6.
12.2.4.4 If the Seller has issued a modification applicable to an
Aircraft, the purpose of which is to avoid a Failure, the
Seller may elect to supply the necessary modification kit free
of charge or under a pro rata formula established by the
Seller in accordance with the provisions of Subclause 12.2.3
in lieu of making the
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<PAGE> 53
payment described herein. If such a kit is so offered to the
Buyer, then, in respect of such Failure and any Failures that
could ensue therefrom, the validity of the Seller's commitment
under this Subclause 12.2 will be subject to the Buyer's
incorporating such modification in the relevant Aircraft,
within a reasonable time, as promulgated by the Seller and in
accordance with the Seller's instructions, {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
12.2.4.5 THIS SERVICE LIFE POLICY IS NEITHER A WARRANTY,
PERFORMANCE GUARANTEE, NOR AN AGREEMENT TO MODIFY ANY
AIRCRAFT OR AIRFRAME COMPONENTS TO CONFORM TO NEW
DEVELOPMENTS OCCURRING IN THE STATE OF AIRFRAME DESIGN
AND MANUFACTURING ART. THE SELLER'S OBLIGATION UNDER
THIS SUBCLAUSE 12.2 IS TO MAKE ONLY THOSE CORRECTIONS TO
THE ITEMS OR FURNISH REPLACEMENTS THEREFOR AS PROVIDED IN
THIS SUBCLAUSE 12.2. THE BUYER'S SOLE REMEDY AND RELIEF FOR
THE NONPERFORMANCE OF ANY OBLIGATION OR LIABILITY OF THE
SELLER ARISING UNDER OR BY VIRTUE OF THIS SERVICE LIFE
POLICY WILL BE IN MONETARY DAMAGES, LIMITED TO THE
AMOUNT THE BUYER REASONABLY EXPENDS IN PROCURING A
CORRECTION OR REPLACEMENT FOR ANY ITEM THAT IS THE
SUBJECT OF A FAILURE COVERED BY THIS SERVICE LIFE POLICY
AND TO WHICH SUCH NONPERFORMANCE IS RELATED, LESS THE
AMOUNT THAT THE BUYER OTHERWISE WOULD HAVE BEEN
REQUIRED TO PAY UNDER THIS SUBCLAUSE 12.2 IN RESPECT OF
SUCH CORRECTED OR REPLACEMENT ITEM. WITHOUT LIMITING
THE WAIVER, RELEASE AND RENUNCIATION SET FORTH IN
SUBCLAUSE 12.5, THE BUYER HEREBY WAIVES, RELEASES AND
RENOUNCES ALL CLAIMS TO ANY FURTHER DAMAGES, DIRECT,
INCIDENTAL OR CONSEQUENTIAL, INCLUDING LOSS OF PROFITS
AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES, ARISING UNDER
OR BY VIRTUE OF THIS SERVICE LIFE POLICY.
12.2.5 Transferability
The Buyer's rights under this Subclause 12.2 will not be assigned,
sold, leased, transferred or otherwise alienated by operation of law or
otherwise, without the Seller's prior written consent which shall not
be unreasonably withheld except as provided in Clause 19 of this
Agreement.
Any unauthorized assignment, sale, lease, transfer or other alienation
of the Buyer's rights under this Service Life Policy will, as to the
particular Aircraft involved, immediately void this Service Life Policy
in its entirety.
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<PAGE> 54
12.3 VENDOR WARRANTIES
[Intentionally deleted]
12.4 INTERFACE COMMITMENT
[Intentionally deleted]
12.5 EXCLUSIVITY OF WARRANTIES AND
GENERAL LIMITATIONS OF LIABILITY
THIS CLAUSE 12 AND LETTER AGREEMENTS NOS. 6 THROUGH 10 OF THIS
AGREEMENT (INCLUDING THEIR SUBPROVISIONS) SET FORTH THE EXCLUSIVE
WARRANTIES, EXCLUSIVE LIABILITIES AND EXCLUSIVE OBLIGATIONS OF THE
SELLER, AND THE EXCLUSIVE REMEDIES AVAILABLE TO THE BUYER, WHETHER
UNDER THIS AGREEMENT OR OTHERWISE, ARISING FROM ANY DEFECT OR
NONCONFORMITY OR PROBLEM OF ANY KIND IN ANY AIRCRAFT, COMPONENT,
EQUIPMENT, ACCESSORY, PART OR SERVICE DELIVERED UNDER THIS AGREEMENT.
THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES,
OBLIGATIONS, GUARANTEES AND LIABILITIES OF THE SELLER AND ALL OTHER
RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER, WHETHER
EXPRESS OR IMPLIED BY CONTRACT, TORT, OR STATUTORY LAW OR OTHERWISE,
WITH RESPECT TO ANY NONCONFORMITY OR DEFECT OR PROBLEM OF ANY KIND IN
ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART OR SERVICE
DELIVERED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO:
(1) ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS
FOR ANY GENERAL OR PARTICULAR PURPOSE;
(2) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(3) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(4) ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY THEORY OF
LIABILITY, HOWEVER ALLEGED, INCLUDING, BUT NOT LIMITED TO,
ACTIONS AND/OR CLAIMS FOR NEGLIGENCE, GROSS NEGLIGENCE,
INTENTIONAL ACTS, WILLFUL DISREGARD, IMPLIED WARRANTY, PRODUCT
LIABILITY, STRICT LIABILITY OR FAILURE TO WARN;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM
COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL STATUTE;
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<PAGE> 55
(6) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS
OR STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL,
STATE OR LOCAL STATUTE OR AGENCY;
(7) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED
FOR:
(a) LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED
UNDER THIS AGREEMENT;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED
UNDER THIS AGREEMENT;
(c) LOSS OF PROFITS AND/OR REVENUES;
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.
THE WARRANTIES AND SERVICE LIFE POLICY PROVIDED BY THIS AGREEMENT WILL
NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN INSTRUMENT
SIGNED BY THE SELLER AND THE BUYER. IN THE EVENT THAT ANY PROVISION OF
THIS CLAUSE 12 OR LETTER AGREEMENTS NOS. 6 THROUGH 10 OF THIS AGREEMENT
SHOULD FOR ANY REASON BE HELD UNLAWFUL, OR OTHERWISE UNENFORCEABLE, THE
REMAINDER OF THIS CLAUSE 12 OR LETTER AGREEMENTS NOS. 6 THROUGH 10 OF
THIS AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT.
12.6 DUPLICATE REMEDIES
The remedies provided to the Buyer under this Clause 12 and Letter
Agreements Nos. 6 through 10 of this Agreement as to any defect in
respect of the Aircraft or any part thereof are mutually exclusive and
not cumulative. The Buyer will be entitled to the remedy that provides
the maximum benefit to it, as the Buyer may elect, pursuant to the
terms and conditions of this Clause 12 and Letter Agreements Nos. 6
through 10 of this Agreement for any such particular defect for which
remedies are provided under this Clause 12 and Letter Agreements Nos. 6
through 10 of this Agreement, provided, however, that the Buyer will
not be entitled to elect a remedy under one part of this Clause 12 and
Letter Agreements Nos. 6 through 10 of this Agreement that constitutes
a duplication of any remedy elected by it under any other part hereof
for the same defect; and provided further that the Buyer's rights and
remedies herein for the nonperformance of any obligations or
liabilities of the Seller arising under these warranties will be in
monetary damages limited to the rights and remedies specifically set
forth in this Clause 12 and Letter Agreements Nos. 6 through 10 of this
Agreement.
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<PAGE> 56
UNQUOTE
In consideration of the assignment and subrogation by the Seller under
this Clause 12 and Letter Agreements Nos. 6 through 10 of this
Agreement in favor of the Buyer in respect of the Seller's rights
against and obligations to the Manufacturer under the provisions quoted
above, the Buyer hereby accepts such assignment and subrogation and
agrees to be bound by all of the terms, conditions and limitations
therein contained, specifically including, without limitation, the
Exclusivity of Warranties and General Limitations of Liability
provisions and Duplicate Remedies provisions.
THIS CLAUSE 12 AND LETTER AGREEMENTS NOS. 6 THROUGH 10 OF THIS
AGREEMENT (INCLUDING THEIR SUBPROVISIONS) SET FORTH THE EXCLUSIVE
WARRANTIES, EXCLUSIVE LIABILITIES AND EXCLUSIVE OBLIGATIONS OF THE
SELLER, AND THE EXCLUSIVE REMEDIES AVAILABLE TO THE BUYER, WHETHER
UNDER THIS AGREEMENT OR OTHERWISE, ARISING FROM ANY DEFECT OR
NONCONFORMITY OR PROBLEM OF ANY KIND IN ANY AIRCRAFT, COMPONENT,
EQUIPMENT, ACCESSORY, PART OR SERVICE DELIVERED UNDER THIS AGREEMENT.
THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES,
OBLIGATIONS, GUARANTEES AND LIABILITIES OF THE SELLER AND ALL OTHER
RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER, WHETHER
EXPRESS OR IMPLIED BY CONTRACT, TORT, OR STATUTORY LAW OR OTHERWISE,
WITH RESPECT TO ANY NONCONFORMITY OR DEFECT OR PROBLEM OF ANY KIND IN
ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART OR SERVICE
DELIVERED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO:
(1) ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS
FOR ANY GENERAL OR PARTICULAR PURPOSE;
(2) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(3) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(4) ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY THEORY OF
LIABILITY, HOWEVER ALLEGED, INCLUDING, BUT NOT LIMITED TO,
ACTIONS AND/OR CLAIMS FOR NEGLIGENCE, GROSS NEGLIGENCE,
INTENTIONAL ACTS, WILLFUL DISREGARD, IMPLIED WARRANTY, PRODUCT
LIABILITY, STRICT LIABILITY OR FAILURE TO WARN;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM
COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL STATUTE;
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<PAGE> 57
(6) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS
OR STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL,
STATE OR LOCAL STATUTE OR AGENCY;
(7) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED
FOR:
(a) LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED
UNDER THIS AGREEMENT;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED
UNDER THIS AGREEMENT;
(c) LOSS OF PROFITS AND/OR REVENUES;
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.
THE WARRANTIES AND SERVICE LIFE POLICY PROVIDED BY THIS AGREEMENT WILL
NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN INSTRUMENT
SIGNED BY THE SELLER AND THE BUYER. IN THE EVENT THAT ANY PROVISION OF
THIS CLAUSE 12 OR LETTER AGREEMENTS NOS. 6 THROUGH 10 OF THIS AGREEMENT
SHOULD FOR ANY REASON BE HELD UNLAWFUL, OR OTHERWISE UNENFORCEABLE, THE
REMAINDER OF THIS CLAUSE 12 OR LETTER AGREEMENTS NOS. 6 THROUGH 10 OF
THIS AGREEMENT WILL REMAIN IN FULL FORCE AND EFFECT.
The remedies provided to the Buyer under this Clause 12 and Letter
Agreements Nos. 6 through 10 of this Agreement as to any defect in
respect of the Aircraft or any part thereof are mutually exclusive and
not cumulative. The Buyer will be entitled to the remedy that provides
the maximum benefit to it, as the Buyer may elect, pursuant to the
terms and conditions of this Clause 12 and Letter Agreements Nos. 6
through 10 of this Agreement for any such particular defect for which
remedies are provided under this Clause 12 and Letter Agreements Nos. 6
through 10 of this Agreement, provided, however, that the Buyer will
not be entitled to elect a remedy under one part of this Clause 12 and
Letter Agreements Nos. 6 through 10 of this Agreement that constitutes
a duplication of any remedy elected by it under any other part hereof
for the same defect; and provided further that the Buyer's rights and
remedies herein for the nonperformance of any obligations or
liabilities of the Seller arising under these warranties will be in
monetary damages limited to the rights and remedies specifically set
forth in this Clause 12 and Letter Agreements Nos. 6 through 10 of this
Agreement.
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<PAGE> 58
12.7 NEGOTIATED AGREEMENT
The Buyer and the Seller agree that this Clause 12 and Letter
Agreements Nos. 6 through 10 have been the subject of discussion and
negotiation and it is fully understood by the parties and that the
price of the Aircraft and the other mutual agreements of the parties
set forth in this Agreement were arrived at in consideration of, inter
alia, the provisions of this Clause 12 and Letter Agreements Nos. 6
through 10, specifically including without limitation the Exclusivity
of Warranties and General Limitations of Liability provisions and the
Duplicate Remedies provisions set forth following Subclause 12.5
herein.
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13 - PATENT INDEMNITY
The Seller, in its capacity as "Buyer" under its arrangements with the
Manufacturer, has negotiated and obtained the following Patent
Indemnity from the Manufacturer with respect to the Aircraft, subject
to the terms, conditions, limitations and restrictions (including, but
not limited to, the waiver, release and renunciation provision) all as
hereinafter set out. The Seller hereby assigns to the Buyer, and the
Buyer hereby accepts, all of the rights and obligations of the Seller
in its capacity as "Buyer" as aforesaid under the Patent Indemnity and
the Seller subrogates the Buyer into all such rights and obligations in
respect of the Aircraft. The Seller hereby warrants to the Buyer that
it has all requisite authority to make the foregoing assignment and
effect the foregoing subrogation to and in favor of the Buyer and that
it will not enter into any amendment of the provisions so assigned
without the prior written consent of the Buyer. Capitalized terms
utilized in the following provisions have the meanings assigned thereto
in this Agreement, except that the term "Seller" refers to the
Manufacturer and the term "Buyer" refers to the Seller.
QUOTE
13.1 Scope
The Seller will indemnify the Buyer from and against any damages, costs
and expenses including reasonable legal costs arising from or related
to the infringement of any patent, {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}(together a "patent")
(excluding damages, costs, expenses, loss of profits and other
liabilities in respect of or resulting from loss of use of any
Aircraft):
(1) to the extent of one hundred percent (100%) thereof in case of
any actual or alleged infringement by any Aircraft or any
Warranted Part or the use thereof of (a) any British, French,
German, Spanish or US patent, or (b) any patent issued under
the laws of any other country that (i) is bound by and
entitled to all benefits of Article 27 of the Chicago
Convention on International Civil Aviation of December 7,
1944, or (ii) is a party to the International Convention for
the Protection of Industrial Property or (iii) has in full
force and effect patent laws that recognize and give adequate
protection to patents issued under the laws of other
countries, and
(2) to the extent of fifty percent (50%) thereof in case of any
actual or alleged infringement by any Aircraft or any
Warranted Part or the use thereof of any patent issued under
the laws of any country not covered by (1) above in which the
Buyer is from time to time lawfully operating the Aircraft.
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<PAGE> 60
The Seller's undertaking under this Clause 13 will not apply to
components, accessories, equipment or parts which are not Warranted
Parts.
13.2 Seller's Action
If any part of an Aircraft infringes a patent covered by Subclause
13.1, the Seller will, at its option and expense, either promptly (i)
procure for the Buyer the right to use such part free of any liability
for patent infringement or (ii) replace such part with a noninfringing
substitute otherwise complying with the requirements of this Agreement.
13.3 Seller's Obligation
The Seller's obligation hereunder with respect to any actual or alleged
infringement is conditioned upon:
(i) the existence of an infringement or a claim of
infringement being made by a third party; or
(ii) commencement of suit against the Buyer for
infringement or the Buyer's receipt of a claim
alleging infringement, and upon written notice by the
Buyer to the Seller within ten (10) days after
receipt by the Buyer of notice of the institution of
such suit, giving particulars thereof,{CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}.
The Seller will have the option but not the obligation at any time to
conduct negotiations with the party or parties charging infringement
and may intervene in any suit commenced. Whether or not the Seller
intervenes in any such suit, it will be entitled at any stage of the
proceedings to assume, conduct or control the defense thereof. If the
Seller assumes the defense of the claim:
(i) the Buyer shall {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} furnish to the Seller all the data,
papers, records and assistance material to the
resistance of or defense against any such charge or
suits for infringement;
(ii) the Buyer shall {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} use diligent efforts in full cooperation
with the Seller to reduce royalties, damages, costs
and expenses involved;
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(iii) the Buyer shall have obtained the Seller's prior
approval of the Buyer's payment, assumption or
admission of any liabilities, expenses, costs or
royalties for which the Seller is asked to respond,
and
(iv) the Buyer shall not otherwise act in a manner
prejudicial to its or the Seller's defense of the
action, provided the Buyer shall be allowed to
operate its business in normal course.
13.4 Waiver
The indemnity provided in this Clause 13 and the obligations and
liabilities of the Seller under this Clause 13 are exclusive and in
substitution for, and the Buyer hereby waives, releases and renounces
all other indemnities, warranties, obligations, guarantees and
liabilities on the part of the Seller and rights, claims and remedies
of the Buyer against the Seller, express or implied, arising by law or
otherwise (including without limitation any obligation, liability,
right, claim or remedy arising from or with respect to loss of use or
revenue or consequential damages), with respect to any actual or
alleged patent infringement by any Aircraft, accessory, equipment or
part, or the use or sale thereof. This patent indemnity will not be
extended, altered or varied except by a written instrument signed by
the Seller and the Buyer.
UNQUOTE
In consideration of the assignment and subrogation by the Seller under
this Clause 13 in favor of the Buyer in respect of the Seller's rights
against and obligations to the Manufacturer under the provisions quoted
above, the Buyer hereby accepts such assignment and subrogation and
agrees to be bound by all of the terms, conditions and limitations
therein contained (specifically including, without limitation, the
waiver, release and renunciation provision).
The indemnity provided in this Clause 13 and the obligations and
liabilities of the Seller under this Clause 13 are exclusive and in
substitution for, and the Buyer hereby waives, releases and renounces
all other indemnities, warranties, obligations, guarantees and
liabilities on the part of the Seller and rights, claims and remedies
of the Buyer against the Seller, express or implied, arising by law or
otherwise (including without limitation any obligation, liability,
right, claim or remedy arising from or with respect to loss of use or
revenue or consequential damages), with respect to any actual or
alleged patent infringement by any Aircraft, accessory, equipment or
part, or the use or sale thereof. This patent indemnity will not be
extended, altered or varied except by a written instrument signed by
the Seller and the Buyer.
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14 - TECHNICAL PUBLICATIONS
14.1 Scope
The Seller will provide the Buyer or cause the Buyer to be provided
with a set of Technical Publications to support the operation of the
Aircraft in accordance with the terms set forth in this Clause 14. Such
Technical Publications are listed in Exhibit H of this Agreement
together with the form, type, format and quantity of each such
Technical Publication (the "Technical Publications").
14.2 Specification
14.2.1 The Technical Publications are prepared according to applicable ATA
specifications. Exhibit H references the relevant ATA specification for
each affected Technical Publication.
14.2.2 Technical Publications will be customized as indicated in Exhibit H.
14.2.3 Technical Publications at delivery of the Aircraft will correspond to
the Specification of the Aircraft as defined at least six (6) months
before such delivery. The Specification at delivery of the Aircraft
will be introduced into the Technical Publications at the first
revision after delivery of the Aircraft whenever reasonably practicable
or otherwise no later than three (3) months after delivery of the
Aircraft.
14.3 Delivery
The Technical Publications and corresponding revisions that the Seller
will supply or cause to be supplied in accordance with the terms of
this Clause 14 will be sent to one address only, as defined by the
Buyer.
The quantities of the Technical Publications to be delivered on or
before the delivery of the Buyer's first Aircraft will be as set forth
in Exhibit H. The Seller will send or cause to be sent additional
quantities of Technical Publications as required by the Buyer upon
thirty (30) days' prior notice.
Technical Publications and their revisions will be shipped by the
quickest transportation methods. The shipments will be Free Carrier
(FCA) Toulouse, France, and/or Hamburg, Germany, as the term Free
Carrier is defined in publication No. 460 of the International Chamber
of Commerce, published in April 1990.
14.4 Language
The Technical Publications (including drawings) will be supplied in the
English language using aeronautical terminology in common use.
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14.5 Revision Service
14.5.1 General
Unless otherwise specifically stated, revision service will be offered
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}. Mandatory changes will be incorporated into the Technical
Publications at no charge for as long as one (1) Aircraft is in service
with the Buyer.
14.5.2 Service Bulletins
Service Bulletin information will be incorporated into the Technical
Publications after notice from the Buyer of embodiment of a Service
Bulletin, provided that such notice is given to the Seller within two
(2) years after issue of such Service Bulletin. The split between
Aircraft modified and not yet modified by the Buyer will be reflected
in the corresponding Service Bulletin and will remain in the Technical
Publications until notification from the Buyer that embodiment of such
Service Bulletin has been completed for all the Aircraft.
14.5.3 Customer Originated Changes
14.5.3.1 Buyer-originated data documented in the Buyer's own Airline
Engineering Bulletin (AEB) ("Customer Originated Changes" or
"COC") may be introduced into the following customized
Technical Publications:
(i) Aircraft Maintenance Manual
(ii) Illustrated Parts Catalog
(iii) Trouble Shooting Manual
(iv) Wiring Manual (Schematics, Wirings, Lists)
14.5.3.2 The Buyer will issue COC in accordance with the provisions of
the "Guidelines for Customer Originated Changes" issued by the
Seller.
14.5.3.3 The Seller will introduce the COC into the relevant Technical
Publications within two (2) revisions following the receipt of
complete and accurate data for processing.
14.5.3.4 COC data will be incorporated by the Seller in all affected
customized Technical Publications, unless the Buyer specifies
in writing to the Seller into which Technical Publications the
COC data will be incorporated. The customized Technical
Publications into which the COC data are incorporated will
only show the Aircraft configuration that reflects the COC
data and not the configuration before incorporation of such
COC data.
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<PAGE> 64
14.5.3.5 The Buyer hereby acknowledges and accepts that the
incorporation of any COC into the Technical Publication issued
by or caused to be issued by the Seller will be entirely at
the Buyer's risk. Accordingly, the Seller will be under no
liability whatsoever in respect of either the engineering
contents of any COC, including any omissions or inaccuracies
therein, or the effect that incorporation of such COC may have
on the Technical Publications.
14.5.3.6 The Seller will not be required to check any COC data
submitted for incorporation as aforementioned, and the Buyer
will ensure that all COC data submitted for incorporation into
a Technical Publication have received prior approval from its
local airworthiness authority.
14.5.3.7 In the event that the Seller and/or the Manufacturer is
required under any court order or settlement to indemnify in
whole or in part any third party for injury, loss or damage
incurred as a result of incorporation of any COC into the
Technical Publications issued or caused to be issued by the
Seller, the Buyer agrees to defend, indemnify or hold harmless
the Seller and/or the Manufacturer for all payments or
settlements made in respect of such injury, loss or damage
including any expenses incurred by the Seller and/or the
Manufacturer in defending such claims. This indemnification by
the Buyer will in no event be affected by any written or oral
communication that the Seller or the Manufacturer may make to
the Buyer in respect of such documentation.
14.5.3.8 The price for the incorporation of any COC as aforesaid will
be invoiced to the Buyer under conditions specified in the
Seller's then current Support Services Price Catalog.
14.6 Aircraft Identification for Technical Publications
For the customized Technical Publications the Buyer agrees to the
allocation of fleet serial numbers from 001 up to 999 ("FSNs"). The
sequence will be interrupted only if two (2) different Propulsion
Systems manufacturers are selected and/or different aircraft models are
chosen.
The Buyer will indicate to the Seller the FSNs allocated to the
Aircraft Manufacturer's Serial Number within forty-five (45) days after
execution of this Agreement. The allocation of FSNs to Manufacturer's
Serial Numbers will not constitute any proprietary, insurable or other
interest whatsoever of the Buyer in any Aircraft prior to delivery of
and payment for such Aircraft as provided in this Agreement.
The relevant customized Technical Publications are:
(i) Aircraft Maintenance Manual
(ii) Illustrated Parts Catalog
(iii) Trouble Shooting Manual
(iv) Wiring Manuals (Schematics, Wirings, Lists)
(v) Flight Crew Operating Manual
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<PAGE> 65
14.7 Vendor Equipment
14.7.1 Information relating to Vendor equipment that is installed on the
Aircraft by the Seller will be included free-of-charge in the basic
issue of the Technical Publications, to the extent necessary for the
understanding of the systems concerned.
14.7.2 The Buyer will supply or cause to be supplied to the Seller the data
related to Buyer Furnished Equipment and SSBFE at least six (6) months
before the scheduled delivery of the customized Technical Publications
and will ensure revision service thereof. The related transportation
costs will be the responsibility of the Buyer.
14.7.3 The Seller will introduce into the basic issue of the Technical
Publications the data related to Buyer Furnished Equipment, SSBFE, and
Seller Furnished Equipment, at no charge.
14.8 Airworthiness Authority
It will be the responsibility of the Buyer to provide its local
airworthiness authority with such Technical Publications as it may
require, using the Technical Publications delivered by the Seller to
the Buyer in accordance with the terms hereof.
14.9 Additional Requirements
The Seller will comply with the Buyer's request to change the form,
quantity, type and/or revisions of any of the data specified in Exhibit
H, upon receipt of the Buyer's purchase order. The charges for such
changes will be invoiced to the Buyer under conditions specified in the
Seller's then current Support Services Price Catalog, {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
14.10 Future Developments
The Seller will continuously monitor technological developments and
apply them to document production and method of transmission where
beneficial and economical.
14.11 Proprietary Rights
14.11.1 All proprietary rights, including but not limited to patent,
design and copyrights, relating to Technical Publications and
data supplied under this Agreement, will remain with the
Seller. All such Technical Publications and data are supplied
to the Buyer for the sole use of the Buyer, who undertakes not
to divulge the contents thereof to any third party
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE
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COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT},
save as permitted therein or otherwise pursuant to any
governmental or legal requirement imposed upon the Buyer.
These proprietary rights will also apply to any translation
into a language or languages or media that may have been
performed or caused to be performed by the Buyer.
14.11.2 The supply of Technical Publications and data by the Seller
will not give the Buyer any right to design or manufacture any
Aircraft or spare parts except as expressly provided in this
Agreement. Further, any right of manufacture granted to the
Buyer by the Seller under this Agreement will in no way be
construed as express or implied approval of any such
manufactured products.
14.11.3 Drawings of the Manufacturer are provided to the Buyer under
the express condition that the Manufacturer will have no
liability, whether in contract or tort, arising from or in
connection with the use of a drawing of the Manufacturer by
the Buyer except as set forth to the contrary in Clause 12 of
the Agreement.
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<PAGE> 67
15 - FIELD ASSISTANCE
15.1 Seller's Service
The Seller will provide or cause to be provided at no charge to the
Buyer the following services at the Buyer's main base or at other
locations to be mutually agreed.
15.1.1 Starting upon the date hereof, the Seller will provide to the Buyer the
services of a Resident Customer Support Representative (the "RCSR")
acting in an advisory capacity {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}. In addition, to support the
operation of the Aircraft, the Seller will provide {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} man-months
of RCSR(s) to the Buyer starting upon the date hereof. The RCSR(s)
will be based, on a full-time, priority basis (but not exclusive to the
Buyer) at the Buyer's main base. The actual number of RCSR(s) allocated
to the Buyer will be mutually agreed. At no time, however, will that
number exceed three (3) persons.
15.1.2 The Seller has set up a worldwide technical services network that is
available for non-exclusive use by all operators of aircraft
manufactured by the Manufacturer. The Buyer will have free access to
this worldwide network at any time in the course of its operation of
the Aircraft. In particular, the Buyer will have access to the regional
customer support representatives closest to the Buyer's main base. A
list of the names of contacts for the worldwide technical services
network, including those of the regional customer support
representatives, will be provided to the Buyer.
15.1.3 The Seller will use reasonable efforts to arrange for similar services
to be procured by competent representatives of the Propulsion Systems
manufacturer and, when necessary and applicable, by representatives of
Vendors (other than Vendors of Buyer Furnished Equipment and SSBFE).
15.1.4 The Seller will provide one (1) Customer Support Director based in
Herndon, VA, to liaise between the Manufacturer and the Buyer on
product support matters after execution of this Agreement for as long
as any of the Aircraft is operated by the Buyer.
15.2 Buyer's Service
15.2.1 For as long as the RCSR(s) specified in Subclause 15.1.1 above
remain(s) with the Buyer, the Buyer will furnish without charge
secretarial assistance on a non-exclusive basis, suitable space, office
equipment and facilities in or conveniently near the Buyer's
maintenance facilities. The Buyer will provide telecommunications
facilities at the Seller's cost to be invoiced on a monthly basis.
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15.2.2 In accordance with the Buyer's policies, the Buyer will provide at no
charge to the Seller:
(i) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}; and
(ii) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}.
15.2.3 The Buyer will give the Seller all necessary reasonable assistance with
general administrative functions specific to the Buyer's country and
procurement of the documents necessary to live and work there.
15.3 Representatives' Status
In providing the above technical service, the Seller's employees,
including RCSR(s) and the Customer Support Director, are deemed to be
acting in an advisory capacity only and at no time will they be deemed
to be acting, either directly or indirectly, as the Buyer's employees
or agents.
15.4 Indemnity and Insurance
The Buyer will indemnify and hold harmless the Seller, the
Manufacturer, ASC and each of the Associated Contractors and their
respective Affiliates, directors, officers, agents and employees from
and against all liabilities, damages, losses, loss of use, costs and
expenses (i) for all injuries to and death of persons (excepting
injuries to and death of the Seller's representatives providing the
services under this clause) caused by the Seller or its representatives
and (ii) for loss of or damage to property (excepting loss of or damage
to property of the Seller's representatives) caused by the Seller or
its representatives, in either case when arising out of or in
connection with the provision of services under this Clause 15. This
indemnity of the Buyer will not apply for any such liabilities,
damages, losses, costs or expenses arising out of or caused by the
negligence or willful misconduct of the Seller's representatives.
The Seller will indemnify and hold harmless the Buyer, its directors,
officers, agents and employees from and against all liabilities,
damages, losses, costs and expenses (i) for injuries to or death of the
Seller's representatives providing the services under this clause, (ii)
for loss of or damage to property of the Seller's representatives or
(iii) arising out of or caused by the willful misconduct or negligence
of the Seller's representatives. With respect to Subclauses (i) and
(ii) of the preceding sentence, the Seller will not be obligated to
indemnify or hold harmless the Buyer where the Seller's liabilities,
damages, losses, costs or expenses arise from the Buyer's negligence or
willful misconduct.
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In the event any claim is made or lawsuit is brought against either
party (or its respective directors, officers, agents or employees) for
damages for death or injury or for property damage, the liability for
which has been assumed by the other party pursuant to this Subclause
15.4, the former (indemnitee) will promptly give notice to the other
party (indemnitor), and the indemnitor will assume and conduct the
defense thereof, and will have the right to effect any settlement that
it, in its opinion, deems proper except that the indemnitor will not
make any settlement which includes any admission, settlement or
compromise to be made by the indemnitee without the indemnitee's
consent. In such case, the indemnitor agrees to keep the indemnitee
fully advised of the conduct of the defense. In the event that the
indemnitor does not assume and conduct the defense of the claim or
lawsuit, then the indemnitee will have the right to proceed with the
defense of the claim or lawsuit as it deems appropriate and will have
an action against the indemnitor for any judgments, settlements, costs
or expenses incurred in conducting the defense. For the purpose of this
Subclause 15.4, a claim or lawsuit against the Manufacturer or any of
the Associated Contractors or any of their respective Affiliates,
directors, officers, agents or employees will be deemed to be a claim
or lawsuit against the Seller.
For the period of performance described in this Clause 15, the Buyer
will (i) indemnify and waive any rights of recourse or subrogation
against the Seller, the Manufacturer and ASC, and each of the
Associated Contractors and their respective Affiliates, directors,
officers, agents, employees and subcontractors in respect of all risks
hull insurance policy; and (ii) effect insurance to cover third-party
liability risks arising during the performance in an amount
satisfactory to the Seller, naming the Seller and its directors,
officers, agents and employees as additional insured. Such insurance
will contain a cross-liability clause and will also contain a thirty
(30)-day notice-of-cancellation provision. Upon request, the Buyer will
deliver to the Seller a certificate of insurance evidencing the
coverage required by this Clause 15.
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16 - TRAINING AND TRAINING AIDS
[Intentionally deleted]
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<PAGE> 71
17 - VENDORS' PRODUCT SUPPORT
17.1 The Seller has obtained product support agreements transferable to the
Buyer from Vendors of Seller Furnished Equipment as listed in the
Specification ("Supplier Product Support Agreements").
17.2 These Supplier Product Support Agreements are based on the "World
Airlines and Suppliers Guide" and include Vendor commitments as
contained in the Supplier Product Support Agreements, which include the
following provisions:
17.2.1 Technical data and manuals required to operate, maintain, service and
overhaul the Vendor items. Such technical data and manuals will be
prepared in accordance with the applicable provisions of ATA
Specification 100 and 101 in accordance with Clause 14 of this
Agreement, will include revision service and will be published in the
English language.
17.2.2 Warranties and guarantees including Vendors' standard warranties. In
addition, Vendors of landing gear will provide service life policies
for landing gear structures.
17.2.3 Training to ensure efficient operation, maintenance and overhaul of the
Vendors' items for the Buyer's instructors, shop and line service
personnel (a manual on the Vendor's training has been provided to the
Buyer).
17.2.4 Spares data in compliance with ATA Specification 200 or 2000, Initial
Provisioning Recommendations as defined in Subclause 2.5 of Letter
Agreement No. 1, spares and logistics service, including routine and
emergency deliveries.
17.2.5 Technical service to assist the Buyer with maintenance, overhaul,
repair, modification, operation and inspection of Vendor items as well
as required tooling and spares provisioning.
17.3 Vendor Compliance
The Seller will monitor Vendor compliance with support commitments
defined in the Supplier Product Support Agreements and will take
remedial action together with the Buyer if requested by the Buyer or if
the Seller becomes aware of a Vendor's non-compliance through its
monitoring process.
17.4 Vendor Part Repair Stations
17.4.1 The Manufacturer has developed with the Vendors a program aimed at
building a comprehensive network of repair stations in North America
for those Vendor Parts originating from outside this territory.
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17.4.2 As a result of the above, most Vendor Parts are now repairable in North
America, and corresponding repair stations are listed in a document,
the AOG and Repair Guide, which is issued and regularly updated by the
Manufacturer.
The Seller undertakes that the Vendor Parts that have to be forwarded
for repair outside North America will be sent back to the Buyer with
proper tagging as required by the FAA and the Buyer.
17.4.3 The Seller will support the Buyer in cases where the agreed repair turn
time of an approved repair station is not met by causing free-of-charge
loans or exchanges (as specified in the relevant Supplier Product
Support Agreements) to be offered to the Buyer until such time as the
situation will have been remedied to the Buyer's satisfaction.
17.5 Further matters relating to Vendor product support and the Seller's
obligations relating thereto are described in Letter Agreement No. 6 to
the Agreement.
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18 - BUYER FURNISHED EQUIPMENT AND DATA
18.1 Installation and Delivery
18.1.1 Without additional charge, and in accordance with the Specification,
the Seller will cause the Manufacturer to provide for the installation
of the Buyer Furnished Equipment.
18.1.2 The Seller will cause the Manufacturer to advise the Buyer of the dates
by which, in the planned release of engineering for an Aircraft, the
Manufacturer requires a written detailed description of the dimensions
and weight of Buyer Furnished Equipment for such Aircraft and
information necessary for the installation and operation thereof, and
the Buyer will furnish such detailed description and information by the
dates so specified. Such dimensions and weights will not thereafter be
revised unless mutually agreed and set forth in a SCN.
18.1.3 The Seller will also cause the Manufacturer to furnish in due time to
the Buyer a schedule of dates by and locations to which Buyer Furnished
Equipment for such Aircraft must be delivered to the Manufacturer to
permit installation in and delivery of such Aircraft in accordance with
the delivery schedule referred to in Clause 9. The Buyer will furnish
such equipment to the Manufacturer at such locations by such dates. The
Buyer, at its own expense, will also furnish or cause to be present at
the works where such Buyer Furnished Equipment is to be installed, when
requested by the Manufacturer, at least one field service
representative to provide the Manufacturer technical advice regarding
the installation and calibration of Buyer Furnished Equipment.
18.2 Specification and Airworthiness Approvals
The Buyer warrants that all Buyer Furnished Equipment will meet the
requirements of the Specification, will comply with applicable LBA (in
the case of A319 Aircraft), DGAC (in the case of A320 Aircraft) and FAA
regulations and will be approved by the LBA (in the case of A319
Aircraft) or the DGAC (in the case of A320 Aircraft) and the FAA for
installation and use on an Aircraft at the time of delivery of such
Aircraft. The Seller will bear no expense in connection with adjusting
and calibrating Buyer Furnished Equipment to the extent necessary to
obtain LBA or DGAC approval, as appropriate, and FAA approval.
18.3 Delay and Nonperformance
Any delay or failure in complying with the warranty in the foregoing
Subclause 18.2, in providing the descriptive information and services
mentioned in Subclause 18.1 hereof, in furnishing the Buyer Furnished
Equipment or in obtaining any required approval of such equipment under
the LBA or DGAC, as appropriate, or FAA regulations will be the
responsibility of the Buyer, and to the extent that such delay or
failure:
(i) delays the performance of any act to be performed by or on
behalf of the Seller or the Manufacturer, or
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(ii) causes the Final Contract Price of the Aircraft to be
increased by the amount of the Seller's additional costs, if
any, attributable to such delay or failure by the Buyer,
including, without limitation, storage, taxes, insurance and
costs of out-of-sequence installation,
any resulting cost will be borne by the Buyer.
Further, in any such event, the Seller may elect to take any of the
actions set forth below in Subclauses 18.3.2, 18.3.3 or 18.3.4:
18.3.2 The Seller acting reasonably and in good faith will be entitled to
cause the Manufacturer to select, purchase and install replacement
Buyer Furnished Equipment {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT} in which event the Final Contract
Price of the affected Aircraft will be increased by the reasonable
costs and expenses incurred by the Manufacturer for handling charges,
transportation, insurance, packaging and, if so required and not
already provided for in the Final Contract Price of such Aircraft, for
adjustment and calibration.
18.3.3 If (i) delivery of the Buyer Furnished Equipment is delayed by more
than thirty (30) days after the date specified by the Manufacturer for
the delivery of such Buyer Furnished Equipment or (ii) the Buyer
Furnished Equipment required or not required to obtain certification of
the Aircraft in accordance with Subclause 2.3 hereof is not approved by
the LBA or the DGAC, as applicable, or the FAA within thirty (30) days
after the date specified by the Manufacturer for the delivery of such
Buyer Furnished Equipment, then, notwithstanding the terms of Subclause
2.3 if applicable, the Seller will be entitled to deliver the affected
Aircraft with no obligation to install such Buyer Furnished Equipment.
Upon such delivery the Seller will be relieved of all obligations to
install such Buyer Furnished Equipment.
18.3.4 Any Buyer Furnished Equipment installed on an Aircraft and subsequently
removed, as a result of action or inaction by the Buyer, will be
removed at the Buyer's expense.
18.4 Delivery
The Buyer will cause all Buyer Furnished Equipment to be delivered at
its own expense to the following addresses, unless the Seller notifies
the Buyer otherwise in writing.
For A319 Aircraft (or A321 Aircraft, if applicable):
DAIMLER-BENZ AEROSPACE AIRBUS GmbH
Division Hamburger Flugzeugbau
Kreetslag 10
21129 HAMBURG
GERMANY
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For A320 Aircraft:
AEROSPATIALE, SOCIETE NATIONALE INDUSTRIELLE
316, Route de Bayonne
31300 TOULOUSE
FRANCE
18.5 Risk of Loss
Title to and risk of loss of Buyer Furnished Equipment will at all
times remain with the Buyer. When Buyer Furnished Equipment is in the
possession of the Seller, the Seller will have only such responsibility
therefor as is chargeable by law to a bailee for hire, but will not be
liable for loss of use except in the event of gross negligence or
willful misconduct.
18.6 Seller-Supplied Buyer Furnished Equipment
If the Buyer requests the Seller to cause the Manufacturer to supply
directly certain items that are considered Buyer Furnished Equipment
pursuant to the Standard Specification, and if compliance with such
request by the Seller and the Manufacturer in their judgment will not
affect the delivery date of an Aircraft referred to in Clause 9, then
the Seller will order such items, and will order all the items
identified as SSBFE in Exhibit B1 and B2 to this Agreement, subject to
the execution of a SCN reflecting the effect on price and any other
items and conditions of this Agreement (the "SSBFE"). In such a case,
the Seller will bear no liability in respect of any delay caused and
product support commitments assumed by the Vendor of such SSBFE
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}. The provisions of Subclauses 18.2 and 18.3 will apply to
SSBFE covered under this Subclause 18.6 in the event of any delay in
approval or delivery of such SSBFE.
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19 - ASSIGNMENT
19.1 Successors and Assigns
Except as otherwise set forth in and subject to the provisions of this
Clause 19, this Agreement will inure to the benefit of and be binding
upon the successors and assigns of the parties hereto. This Agreement
will not be assigned in whole or in part by either party without the
prior written consent of the other party. Notwithstanding anything
herein to the contrary, the Seller may at any time, without the Buyer's
consent, assign any of its rights to receive money, and any of its
duties to effect sale and delivery of any Aircraft, or any of its
responsibilities, duties or obligations to perform any other
obligations hereunder to the Manufacturer, any of the Associated
Contractors, ASC or any Affiliate of the Seller, the Manufacturer or
any Associated Contractor,{CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}.
19.2 Seller's Designations
The Seller may at any time by notice to the Buyer designate particular
facilities or particular personnel of the Manufacturer, ASC, any of the
Associated Contractors or any Affiliate of the Manufacturer or any
Associated Contractor at which or by whom the services to be performed
under this Agreement will be performed. The Seller may also designate
the Manufacturer, any Associated Contractor or any Affiliate of the
Manufacturer or any Associated Contractor as the party responsible on
behalf of the Seller for providing to the Buyer all or any of the
services described in this Agreement. {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
19.3 Transfer Prior to Delivery
Prior to delivery the Buyer will not resell, lease or transfer the
Aircraft, or finalize a contract to do so, without the Seller's written
consent. However, subject to the provisions of Subclause 19.5 and 19.6
of this Agreement, the Buyer may immediately prior to the delivery of
any Aircraft, cause any of the Aircraft to be subjected to an equipment
trust, leveraged lease, finance lease, conditional sale, security
interest, lien or other arrangement for the financing by the Buyer of
such Aircraft or finalize a contract to do so and the Seller will, at
the Buyer's request, take any action reasonably requested by the Buyer
for the purpose of effecting the foregoing. No action by the Buyer or
the Seller under this Subclause 19.3 will require the Seller to divest
itself of title to or possession of such Aircraft until delivery and
payment therefor as provided in this Agreement.
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19.4 Post Delivery Resale or Lease
In the event of the post delivery resale or lease of any Aircraft, the
Buyer's rights with respect to such Aircraft under this Agreement will
automatically, to the extent provided in the contract relating to such
assignment, sale or lease, inure to the benefit of such assignee,
purchaser or lessee, as the case may be, but only if the Buyer obtains
from such assignee, purchaser or lessee an express agreement, in
writing, to be bound by and comply with all applicable terms,
conditions and limitations of this Agreement, provided that the copy of
such agreement may be an extract of the assignee, purchaser, or
lessee's overall agreement. The Buyer will promptly furnish to the
Seller a true copy of such agreement with any such purchaser or lessee
with sensitive commercial terms redacted.
19.5 Assignment for Predelivery Payment Financing
Without limiting the foregoing, the Seller agrees that the Buyer may
assign its rights under this Agreement with respect to any Aircraft
(excluding, however, the Letter Agreements) outright or, as collateral
security for the payment of amounts owed in respect of any financing of
its Predelivery Payments hereunder with respect to such Aircraft,
provided that (i) the Seller shall receive an executed true and
complete original of the written instrument of assignment with
sensitive commercial terms redacted, and (ii) the assignee shall agree
in a manner reasonably satisfactory to the Seller that the exercise of
its rights hereunder is subject to all of the terms and conditions
hereof, including, without limitation, the obligation to pay for the
Aircraft in full on delivery as provided in Clause 6 of the Agreement,
and provided further that in no event shall such assignee obtain any
rights in or to such Predelivery Payments or obtain any other rights
under or with respect to this Agreement greater than the rights of the
Buyer hereunder. The Seller shall provide reasonable cooperation in
connection with such an assignment, however, no action taken by the
Buyer or the Seller under this Subclause 19.5 shall subject the Seller
or the Manufacturer to any liability to which it would not otherwise be
subject hereunder, or adversely modify in any way the Seller's contract
rights hereunder, or require the Seller to divest itself of title to or
possession of such Aircraft prior to delivery and payment therefor as
provided in this Agreement.
19.6 Limitation on Assignable Provisions
Notwithstanding any other provisions of this Agreement, the Letter
Agreements hereto may not be assigned by the Buyer to any other party
without the Seller's consent, and any attempted assignment of the
Letter Agreements by the Buyer, without the Seller's consent, will be
null and void. For the avoidance of doubt, it is hereby understood that
this provision shall include {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}. In the event of any inconsistency
between the terms of the provisions of this Clause 19 and the terms of
this Subclause 19.6, then the provisions of Subclause 19.6 shall
prevail.
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<PAGE> 78
19.7 Buyer's Obligations
In the event of any assignment pursuant to the provisions of this
Clause 19, the Buyer will furnish the Seller with a true copy of such
assignment(s) with such purchaser, lessor, or other financing party,
clearly stating that such purchaser or lessor acknowledges that it is
bound by and will comply with all applicable assigned terms, conditions
and limitations of this Agreement, provided that the copy of such
assignment may be an extract of such assignee's overall agreement with
sensitive commercial terms redacted.
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<PAGE> 79
20 - DATA RETRIEVAL
On the Seller's reasonable request, the Buyer will provide the Seller
with all the necessary technical data, as customarily compiled by the
Buyer and pertaining to the operation of the Aircraft, to assist the
Seller in making an efficient and coordinated survey of all
reliability, maintenance and operational data (if specifically agreed
to by the Buyer on a case by case basis) with a view to improving the
safety, reliability, maintainability and operation of the Aircraft.
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<PAGE> 80
21 - TERMINATION FOR CERTAIN EVENTS; FURTHER ASSURANCES
21.1 Termination Events
21.1.1 Any of the following will constitute "Termination Events" under this
Agreement:
(i) The Buyer or the Parent Company will commence any case,
proceeding or other action with respect to the Buyer or the
Parent Company or its property in any jurisdiction relating to
bankruptcy, insolvency, reorganization or relief from debtors
or seeking a reorganization, arrangement, winding-up,
liquidation, dissolution or other relief with respect to all
or substantially all of its debts or obligations.
(ii) Any other party will commence any case, proceeding or other
action with respect to the Buyer or the Parent Company or its
property in any jurisdiction relating to bankruptcy,
insolvency, reorganization or relief from debtors or seeking a
reorganization, arrangement, winding-up, liquidation,
dissolution or other relief with respect to all or
substantially all of its debts or obligations {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
(iii) An action is commenced seeking the appointment of a receiver,
trustee, custodian or other similar official for the Buyer or
the Parent Company for all or substantially all of its assets
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}, or the Buyer or the Parent Company
makes a general assignment for the benefit of its creditors.
(iv) An action is commenced against the Buyer or the Parent Company
seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or substantially all
of its assets {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
(v) The Buyer is unable to pay its debts as they come due.
(vi) There is a liquidation, winding up or analogous event with
respect to the Buyer or the Parent Company.
(vii) The Buyer fails to make any Predelivery Payment required to be
made pursuant to this Agreement {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
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<PAGE> 81
(viii) (a) an event defined as an event of default or its equivalent
has occurred and is continuing under {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT},
or (b) any payment or payments of scheduled amounts of
principal or interest or lease rental or other similar
payments to any and all other party or parties is not made
when due {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}.
(ix) The Buyer fails to take delivery of an Aircraft under this
Agreement or fails to make payment of all or part of the Final
Contract Price required to be made pursuant to Subclause 6.3
of this Agreement {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
(x) the Buyer consolidates with or merges into any other
corporation or voluntarily sells or transfers all or
substantially all of its assets as an entirety to any person,
in one transaction or a series of transactions, and the
successor entity formed by such consolidation or into which
the Buyer is merged or the successor entity that acquires all
or substantially all of the Buyer's assets as an entirety does
not execute and deliver to the Seller an agreement in form and
substance reasonably satisfactory to the Seller assuming all
of the obligations, liabilities, and responsibilities of the
Buyer under this Agreement {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
(xi) the Parent Company consolidates with or merges into any other
corporation or voluntarily sells or transfers all or
substantially all of its assets as an entirety to any person,
in one transaction or a series of transactions, and the
successor entity formed by such consolidation or into which
the Parent Company is merged or the successor entity that
acquires all or substantially all of the Parent Company's
assets as an entirety prevents the Buyer (or its successors)
from performing or causes the Buyer (or its successors) not to
perform all of the obligations, liabilities, and
responsibilities of the Buyer under this Agreement
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
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<PAGE> 82
21.1.2 In the event of the occurrence of a Termination Event which is
continuing {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}, the Buyer will be deemed in material breach of
this Agreement, and the Seller will at its option have the right to
resort to any remedy under applicable law, including, without
limitation, the right by written notice, effective immediately, to (i)
suspend or delay its performance under the Agreement, (ii) terminate
this Agreement (provided that no such notice need be delivered, and
this Agreement including all Appendixes, Exhibits and Letter Agreements
thereto will automatically terminate, upon the occurrence of a
Termination Event specified in Subclause 21.1.1(i), (ii), (iii), or
(iv)) with respect to any or all Aircraft, services, data and other
items undelivered or unfurnished on the effective date of such
termination, and (iii) retain, as part of the damages for breach and
not as a penalty, an amount equal to all Predelivery Payments and all
other payments made theretofore under this Agreement {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
21.1.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
21.2 Further Assurances
The Seller and the Buyer will have those rights and remedies provided
in Article 2-609 of the Uniform Commercial Code as in effect on the
date hereof in the State of New York, including but not limited to the
right to suspend performance and/or terminate this Agreement in
circumstances contemplated by Article 2-609.
21.3 Further Termination Rights for the Seller
In addition to the Seller's rights under Subclause 21.1 and 21.2, the
Seller shall have the right to terminate this Agreement with respect to
any or all Aircraft, services, data, and other items undelivered or
unfurnished on the effective date of such termination, in the event
that (any one of the following events is referred to as an "Illegality
Event"):
(i) the Buyer does not remain in existence as a corporation except
as permitted under Subclause 21.3(ii) below, or the Buyer will
have lost its status as a US certificated air carrier
organized under the laws of the United States of America, a
state thereof or the District of Columbia and such loss of
status shall have continued for more than ninety (90) days;
(ii) the Buyer consolidates with or merges into any other
corporation or voluntarily sells or transfers all or
substantially all of its assets as an entirety to any person
in one transaction or a series of transactions, and the
successor entity formed by such consolidation or into which
the Buyer is merged or the successor entity that acquires all
or substantially all of the Buyer's assets as an entirety (a)
is not a
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<PAGE> 83
corporation existing under the laws of the U.S. or any state
thereof or the District of Columbia, or (b) is not a "citizen
of the U.S." within the meaning of Section 101(16) of the
Federal Aviation Act of 1958, as amended;
(iii) the Buyer sells, assigns or transfers more than {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} of its assets in one transaction (or a series of
transactions which have the effect of materially diminishing
the creditworthiness of the Buyer) to an Affiliate, holding
company, or unconsolidated subsidiary without the Seller's
consent in a transaction in which the assignee or transferee
does not assume the obligations of this Agreement.
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
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<PAGE> 84
22 - MISCELLANEOUS PROVISIONS
22.1 Notices
All notices and requests required or authorized hereunder will be given
in writing either by personal delivery, by commercial courier,
certified air mail (return receipt requested), registered mail or
facsimile at the addresses and numbers set forth below. The date upon
which any such notice or request is so personally delivered, or if such
notice or request is given by commercial courier, certified air mail,
registered mail or facsimile, the date upon which received unless sent
by facsimile transmission and received outside of business hours in
which case the notice shall be deemed received on the next succeeding
Working Day, will be deemed to be the effective date of such notice or
request.
The Seller will be addressed at:
2, rond-point Maurice Bellonte
31700 BLAGNAC FRANCE
Attention: Director - Contracts
Telephone: 33 05 61 30 40 12
Facsimile: 33 05 61 30 40 11
The Buyer will be addressed at:
America West Airlines, Inc.
Phoenix Sky Harbor International Airport
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034 USA
Attn.: Senior VP Finance/Chief Financial Officer
Telephone: (602) 693-5882
Facsimile: (602) 693-5261
From time to time, the party receiving the notice or request may
designate another address or another person.
22.2 Waiver
The failure of either party to enforce at any time any of the
provisions of this Agreement, to exercise any right herein provided or
to require at any time performance by the other party of any of the
provisions hereof will in no way be construed to be a present or future
waiver of such provisions nor in any way to affect the validity of this
Agreement or any part hereof or the right of the other party thereafter
to enforce each and every such
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<PAGE> 85
provision. The express waiver by either party of any provision,
condition or requirement of this Agreement will not constitute a waiver
of any future obligation to comply with such provision, condition or
requirement.
22.3 Interpretation and Law; Jurisdiction; Payment Currency
This Agreement will be governed by and construed and the performance
thereof will be determined in accordance with the laws of the state of
New York without giving regard to the conflict of law provisions
contained therein.
The parties hereby also agree that the United Nations Convention on the
international sale of goods will not apply to this transaction.
Each party (i) hereby irrevocably submits itself to the non-exclusive
jurisdiction of the courts of the state of New York in New York County,
and, to the extent permitted by applicable law, to the non-exclusive
jurisdiction of the United States District Court for the Southern
District of New York, for the purposes of any suit, action or other
proceeding arising out of this Agreement including all Appendixes,
Exhibits and Letter Agreements thereto or any of the transactions
contemplated hereby brought by any party or parties hereto, or their
successors or assigns, and (ii) hereby irrevocably waives, and agrees
not to assert, by way of motion, as a defense, counterclaim or
otherwise, in any such action or proceeding with respect to this
Agreement including all Appendixes, Exhibits and Letter Agreements
thereto, the defense of sovereign immunity, any claim that it is not
personally subject to the jurisdiction of the above-named courts by
reason of sovereign immunity or otherwise that it or its property is
exempt or immune from jurisdiction of any court or from any legal
process (whether through service of notice, attachment prior to
judgment, attachment in aid or execution of judgment, execution of
judgment or otherwise), and to the fullest extent permitted by
applicable law, that the suit, action or proceeding is brought in an
inconvenient forum, that the venue of the suit, action or proceeding is
improper or that this Agreement including all Appendixes, Exhibits and
Letter Agreements thereto, or the subject matter hereof or thereof may
not be enforced in or by such courts. The Seller hereby irrevocably
designates and appoints CT Corporation, New York City offices, to
receive for and on its behalf service of process in any proceeding with
respect to any matter as to which it submits to jurisdiction as set
forth above, it being agreed that service upon CT Corporation will
constitute valid service upon the Seller. The Buyer hereby generally
consents to service of process by registered mail, return receipt
requested, at its address for notice under this Agreement.
It is of the essence of this Agreement that the Buyer and the Seller
make the payments due hereunder in Dollars. The obligation to make each
payment in Dollars will not be discharged or satisfied by any tender,
or any recovery pursuant to any judgment, which is expressed in or
converted into any other currency until and except to the extent such
tender or recovery will result in the actual receipt by the receiving
party in Dollars of the amount expressed to be payable in Dollars. The
obligation to make payments in Dollars will be enforceable as an
alternative or additional cause of action for the purpose of
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<PAGE> 86
recovery in Dollars of the amount (if any) by which such actual receipt
will fall short of the full amount of Dollars and will not be affected
by judgment being obtained for any other sums due hereunder.
22.4 Confidentiality
Subject to any legal or governmental requirements of disclosure, the
parties (which for this purpose will include their employees, agents,
advisors and accountants) will maintain the terms and conditions of
this Agreement and any reports or other data furnished hereunder
strictly confidential. Without limiting the generality of the
foregoing, the Buyer will use its best efforts to limit the disclosure
of the contents of this Agreement to the extent legally permissible in
any filing required to be made by the Buyer with any governmental
agency and will make such applications as will be necessary to
implement the foregoing. With respect to any public disclosure or
filing, the Buyer agrees to submit to the Seller a copy of the proposed
document to be filed or disclosed and will give the Seller a reasonable
period of time in which to review the document (provided that the
Seller shall prepare a copy of this Agreement with the confidential
terms redacted as agreed with the Buyer which shall be filed with the
Security and Exchange Commission within fifteen (15) Working Days of
the date hereof). The Buyer and the Seller will consult with each other
prior to the making of any other public disclosure or filing, permitted
hereunder, of this Agreement or the terms and conditions thereof. The
provisions of this Subclause 22.4 will survive any termination of this
Agreement.
22.5 Alterations to Contract
This Agreement, including its Exhibits, Appendixes and Letter
Agreements, contains the entire agreement between the parties with
respect to the subject matter hereof and thereof and supersedes any
previous understanding, commitments or representations whatsoever,
whether oral or written (including, without limitation, that certain
(i) Airbus Term Sheet dated September 12, 1996 (reference AVSA
5175.17), (ii) Airbus Term Sheet dated June 25, 1997 (reference AVSA
5175.30) and (iii) Amended Terms Letter dated June 25, 1997 (reference
AVSA 5175.31) between the Seller and the Buyer and all letter
agreements, exhibits, and appendices ancillary thereto).
The Buyer and the Seller hereby agree that the 1990 Purchase Agreement
is terminated in its entirety and replaced by this Agreement. The terms
and conditions contained in the 1990 Purchase Agreement are no longer
effective or enforceable, and neither the Buyer nor the Seller has any
obligation to the other thereunder except as to any rights or
obligations that may have accrued to any party thereunder prior to the
date hereof.
This Agreement will not be varied except by an instrument in writing of
even date herewith or subsequent hereto executed by both parties or by
their fully authorized representatives.
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<PAGE> 87
22.6 Inconsistencies
In the event of any inconsistency between the terms of this Agreement
and the terms contained in either (i) the Specification, or (ii) any
other Exhibit or Letter Agreement attached to this Agreement, in each
such case the terms of such Specification, Exhibit or Letter Agreement
will prevail over the terms of this Agreement. For the purpose of this
Subclause 22.6, the term Agreement will not include the Specification
or any other Exhibit or Letter Agreement hereto.
22.7 Language
All correspondence, documents and any other written matters in
connection with this Agreement will be in English.
22.8 Headings
All headings in this Agreement are for convenience of reference only
and do not constitute a part of this Agreement.
22.9 Counterparts
This Agreement may be executed by the parties hereto 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.
22.10 Opinions of Counsel
The Buyer will, concurrently with the execution of this Agreement,
deliver to the Seller an opinion of internal counsel for the Buyer and
dated as of such date to the effect that the execution, delivery and
performance of this Agreement are within the corporate power of the
Buyer. The Seller will, concurrently with the execution of this
Agreement, deliver to the Buyer an opinion of internal counsel for the
Seller and dated as of such date to the effect that the execution,
delivery and performance of this Agreement are within the corporate
power of the Seller.
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<PAGE> 88
IN WITNESS WHEREOF, these presents were entered into as of the day and year
first above written.
AVSA, S.A.R.L.
By: /s/ M. Lascaux
Title: Director - Contracts
AMERICA WEST AIRLINES, INC.
By: /s/ S. L. Johnson
Title: Sr. Vice President - Legal Affairs
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<PAGE> 89
EXHIBIT A1
The A319 Standard Specification is contained in a separate folder.
<PAGE> 90
EXHIBIT A2
The A320 Standard Specification is contained in a separate folder.
<PAGE> 91
EXHIBIT B1
CHANGE ORDERS TO A319 AIRCRAFT
STANDARD SPECIFICATION (SCNs)
All Change orders listed in this Exhibit B1 Part 1 and Part 2 shall be SCNs for
the purpose of Subclause 4.1.1 of the Agreement. All prices are expressed in
January 1996 delivery conditions and are subject to escalation in accordance
with the provisions of this Agreement. The list of items in this Exhibit B1 Part
3 constitutes Engineering Orders to be further studied by the Seller.
<PAGE> 92
EXHIBIT B1
Part 1
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<PAGE> 93
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TREATMENT}
</TABLE>
- ------------------
(1) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}
Exh. B1/Part 1-2
<PAGE> 94
ATA CHAPTER TITLE
- ----------- -----
{CONFIDENTIAL {CONFIDENTIAL MATERIAL OMITTED AND FILED
MATERIAL SEPARATELY WITH THE SECURITIES AND EXCHANGE
OMITTED AND COMMISSION PURSUANT TO A REQUEST FOR
FILED CONFIDENTIAL TREATMENT}
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
Exh. B1/Part 1 - 3
<PAGE> 95
ATA CHAPTER TITLE
- ----------- -----
{CONFIDENTIAL {CONFIDENTIAL MATERIAL OMITTED AND FILED
MATERIAL SEPARATELY WITH THE SECURITIES AND EXCHANGE
OMITTED AND COMMISSION PURSUANT TO A REQUEST FOR
FILED CONFIDENTIAL TREATMENT}
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
Exh. B1/Part 1 - 4
<PAGE> 96
ATA CHAPTER TITLE
- ----------- -----
{CONFIDENTIAL {CONFIDENTIAL MATERIAL OMITTED AND FILED
MATERIAL SEPARATELY WITH THE SECURITIES AND EXCHANGE
OMITTED AND COMMISSION PURSUANT TO A REQUEST FOR
FILED CONFIDENTIAL TREATMENT}
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
Exh. B1/Part 1 - 5
<PAGE> 97
EXHIBIT B1
Part 2
ATA CHAPTER TITLE
- ----------- -----
{CONFIDENTIAL {CONFIDENTIAL MATERIAL OMITTED AND FILED
MATERIAL SEPARATELY WITH THE SECURITIES AND EXCHANGE
OMITTED AND COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
FILED TREATMENT}
SEPARATELY
WITH THE
SECURITIES
AND EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
<PAGE> 98
EXHIBIT B1
Part 3
AMERICA WEST AIRLINES -{CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
In order for the Buyer to accelerate the entry into revenue service of the
Aircraft, the Buyer has asked the Seller to make a proposal that considers
including the following Buyer's Engineering Orders in the Aircraft prior to
delivery. Within 30 days of the date hereof, the Seller will provide the Buyer
with a commercial offer on a per Aircraft basis for the incorporation of any or
all of these Engineering Orders into the Aircraft,{CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}. Such proposal will consider the Seller and
the Manufacturer's industrial, commercial and certification constraints. The
Buyer shall (i) within 30 days of receipt of the Seller's offer, execute all
relevant RFCs and SCNs corresponding to the Engineering Orders selected to be
incorporated in the Aircraft prior to delivery and (ii) comply with all
requirements of Clause 18 of the Agreement in the event certain equipments are
provided by the Buyer as BFE.
ATA CHAPTER TITLE
- ----------- -----
{CONFIDENTIAL {CONFIDENTIAL MATERIAL OMITTED AND FILED
MATERIAL SEPARATELY WITH THE SECURITIES AND EXCHANGE
OMITTED AND COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
FILED TREATMENT}
SEPARATELY
WITH THE
SECURITIES
AND EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
<PAGE> 99
ATA CHAPTER TITLE
- ----------- -----
{CONFIDENTIAL {CONFIDENTIAL MATERIAL OMITTED AND FILED
MATERIAL SEPARATELY WITH THE SECURITIES AND EXCHANGE
OMITTED AND COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
FILED TREATMENT}
SEPARATELY
WITH THE
SECURITIES
AND EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
STUDY ITEMS (SELLER'S OFFER SUBJECT TO CERTIFICATION OF THE MODIFICATION)
- ----------- -------------------------------------------------------------
{CONFIDENTIAL {CONFIDENTIAL MATERIAL OMITTED AND FILED
MATERIAL SEPARATELY WITH THE SECURITIES AND EXCHANGE
OMITTED AND COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
FILED TREATMENT}
SEPARATELY
WITH THE
SECURITIES
AND EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
Exh. B1/Part 3 - 2
<PAGE> 100
EXHIBIT B2
CHANGE ORDERS TO A320 AIRCRAFT
STANDARD SPECIFICATION (SCNs)
All Change orders listed in this Exhibit B2 Part 1 and Part 2 shall be SCNs for
the purpose of Subclause 4.2.1 of the Agreement. All prices are expressed in
January 1996 delivery conditions and are subject to escalation in accordance
with the provisions of this Agreement. The list of items in this Exhibit B2 Part
3 constitutes Engineering Orders to be further studied by the Seller.
<PAGE> 101
EXHIBIT B2
Part 1
ATA CHAPTER TITLE
- ----------- -----
{CONFIDENTIAL {CONFIDENTIAL MATERIAL OMITTED AND FILED
MATERIAL SEPARATELY WITH THE SECURITIES AND EXCHANGE
OMITTED AND COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
FILED TREATMENT}
SEPARATELY
WITH THE
SECURITIES
AND EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
<PAGE> 102
ATA CHAPTER TITLE
- ----------- -----
{CONFIDENTIAL {CONFIDENTIAL MATERIAL OMITTED AND FILED
MATERIAL SEPARATELY WITH THE SECURITIES AND EXCHANGE
OMITTED AND COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
FILED TREATMENT}(1)
SEPARATELY
WITH THE
SECURITIES
AND EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
- -------------------------------
(1) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}
Exh. B2/Part 1 - 2
<PAGE> 103
ATA CHAPTER TITLE
- ----------- -----
{CONFIDENTIAL {CONFIDENTIAL MATERIAL OMITTED AND FILED
MATERIAL SEPARATELY WITH THE SECURITIES AND EXCHANGE
OMITTED AND COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
FILED TREATMENT}
SEPARATELY
WITH THE
SECURITIES
AND EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
Exh. B2/Part 1 - 3
<PAGE> 104
ATA CHAPTER TITLE
- ----------- -----
{CONFIDENTIAL {CONFIDENTIAL MATERIAL OMITTED AND FILED
MATERIAL SEPARATELY WITH THE SECURITIES AND EXCHANGE
OMITTED AND COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
FILED TREATMENT}
SEPARATELY
WITH THE
SECURITIES
AND EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
Exh. B2/Part 1 - 4
<PAGE> 105
ATA CHAPTER TITLE
- ----------- -----
{CONFIDENTIAL {CONFIDENTIAL MATERIAL OMITTED AND FILED
MATERIAL SEPARATELY WITH THE SECURITIES AND EXCHANGE
OMITTED AND COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
FILED TREATMENT}
SEPARATELY
WITH THE
SECURITIES
AND EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
Exh. B2/Part 1 - 5
<PAGE> 106
EXHIBIT B2
Part 2
ATA CHAPTER TITLE
- ----------- -----
{CONFIDENTIAL {CONFIDENTIAL MATERIAL OMITTED AND FILED
MATERIAL SEPARATELY WITH THE SECURITIES AND EXCHANGE
OMITTED AND COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
FILED TREATMENT}
SEPARATELY
WITH THE
SECURITIES
AND EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
<PAGE> 107
EXHIBIT B2
Part 3
AMERICA WEST AIRLINES -{CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
In order for the Buyer to accelerate the entry into revenue service of the
Aircraft, the Buyer has asked the Seller to make a proposal that considers
including the following Buyer's Engineering Orders in the Aircraft prior to
delivery. Within 30 days of the date hereof, the Seller will provide the Buyer
with a commercial offer on a per Aircraft basis for the incorporation of any or
all of these Engineering Orders into the Aircraft,{CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}. Such proposal will consider the Seller and
the Manufacturer's industrial, commercial and certification constraints. The
Buyer shall (i) within 30 days of receipt of the Seller's offer, execute all
relevant RFCs and SCNs corresponding to the Engineering Orders selected to be
incorporated in the Aircraft prior to delivery and (ii) comply with all
requirements of Clause 18 of the Agreement in the event certain equipments are
provided by the Buyer as BFE.
ATA CHAPTER TITLE
- ----------- -----
{CONFIDENTIAL {CONFIDENTIAL MATERIAL OMITTED AND FILED
MATERIAL SEPARATELY WITH THE SECURITIES AND EXCHANGE
OMITTED AND COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
FILED TREATMENT}
SEPARATELY
WITH THE
SECURITIES
AND EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
<PAGE> 108
ATA CHAPTER TITLE
- ----------- -----
{CONFIDENTIAL {CONFIDENTIAL MATERIAL OMITTED AND FILED
MATERIAL SEPARATELY WITH THE SECURITIES AND EXCHANGE
OMITTED AND COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
FILED TREATMENT}
SEPARATELY
WITH THE
SECURITIES
AND EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
STUDY ITEMS (SELLER'S OFFER SUBJECT TO CERTIFICATION OF THE MODIFICATION)
- ----------- -------------------------------------------------------------
{CONFIDENTIAL {CONFIDENTIAL MATERIAL OMITTED AND FILED
MATERIAL SEPARATELY WITH THE SECURITIES AND EXCHANGE
OMITTED AND COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
FILED TREATMENT}
SEPARATELY
WITH THE
SECURITIES
AND EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
Exh. B2/Part 3 - 2
<PAGE> 109
EXHIBIT C
SCN FORM
<PAGE> 110
AVSA SCN No.
SPECIFICATION CHANGE NOTICE Issue
(SCN) Dated
Page No.
- --------------------------------------------------------------------------------
TITLE
DESCRIPTION
EFFECT ON WEIGHT
Manufacturer's Weight Empty Change:
Operational Weight Empty Change:
Allowable Payload Change:
REMARKS/REFERENCES
Response to RFC
SPECIFICATION CHANGED BY THIS SCN
THIS SCN REQUIRES PRIOR OR CONCURRENT ACCEPTANCE OF THE
FOLLOWING SCN(s)
Exh. C - 2
<PAGE> 111
PRICE PER AIRCRAFT
US DOLLARS:
AT DELIVERY CONDITIONS:
This change will be effective on __________________ Aircraft No. __________ and
subsequent provided approval is received by __________________________________ .
BUYER APPROVAL SELLER APPROVAL
By: By:
Title: Date:
By:
Title:
Date:
Exh. C - 3
<PAGE> 112
AVSA SCN No.
SPECIFICATION CHANGE NOTICE Issue
(SCN) Dated
Page No.
- --------------------------------------------------------------------------------
SCOPE OF CHANGE (FOR INFORMATION ONLY)
Exh. C - 4
<PAGE> 113
EXHIBIT D
AIRFRAME PRICE REVISION FORMULA
l. BASE PRICE
The Base Price of the Airframe is as quoted in Subclause 4.1.1 and
Subclause 4.2.1 of the Agreement.
2. BASE PERIOD
The above Base Prices have been established in accordance with the
averaged economic conditions prevailing in December 1994/January
1995/February 1995 and corresponding to theoretical delivery conditions
prevailing in January 1996 as defined by {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} index values
indicated in Paragraph 4 of this Exhibit D.
These Base Prices are subject to adjustment for changes in economic
conditions as measured by data obtained from the US Department of
Labor, Bureau of Labor Statistics, and in accordance with the
provisions of Paragraphs 4 and 5 of this Exhibit D.
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} index values indicated in Paragraph 4 of this Exhibit D will
not be subject to any revision of these indexes.
3. REFERENCE INDEXES
Labor Index: {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}.
Material Index: {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
<PAGE> 114
4. REVISION FORMULA
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}
In determining the Revised Base Price at delivery of the Aircraft, each
quotient shall be calculated to the nearest ten thousandth (4
decimals). If the next succeeding place is five (5) or more, the
preceding decimal place shall be raised to the next higher figure. The
final factor shall be rounded to the nearest ten thousandth (4
decimals).
After final computation, Pn shall be rounded to the next whole number
(0.5 or more rounded to l).
5. GENERAL PROVISIONS
5.1 Substitution of Indexes
In the event that:
(i) the U.S. Department of Labor substantially revises the
methodology of calculation of any of the indexes referred to
hereabove, or
(ii) the U.S. Department of Labor discontinues, either temporarily
or permanently, any of the indexes referred to hereabove, or
(iii) the data samples used to calculate any of the indexes referred
to hereabove are substantially changed,
the Seller will select a substitute index.
Such substitute index will reflect as closely as possible the actual
variations of the wages or of the material costs, as the case may be,
used in the calculation of the original index.
As a result of this selection of a substitute index, the Seller will
make an appropriate adjustment to its price revision formula, allowing
to combine the successive utilization of the original index and of the
substitute index.
5.2 Final Index Values
The Revised Base Price at the date of Aircraft delivery will be final
and will not be subject to further adjustments of any kind and for any
reason to the applicable indexes as published at the date of Aircraft
delivery.
Exh. D - 2
<PAGE> 115
EXHIBIT E1
IAE PRICE REVISION FORMULA FOR A319 AIRCRAFT
l. REFERENCE PRICE
The V2524-A5 Reference Price of a set of two (2) International Aero
Engines V2524-A5 Propulsion Systems is as quoted in Subclause 4.1.2 of
the Agreement.
This V2524-A5 Reference Price is valid for Aircraft delivered
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}, and is subject to adjustment for changes in economic
conditions as measured by data obtained from the US Department of
Labor, Bureau of Labor Statistics, and in accordance with the
provisions of Paragraphs 4 and 5 of this Exhibit E1.
2. REFERENCE PERIOD
The above V2524-A5 Reference Price has been established in accordance
with the economic conditions prevailing in November 1990 (or March 1991
theoretical delivery conditions) as defined, according to International
Aero Engines, by the HEb, MMPb and EPb index values indicated in
Paragraph 4 of this Exhibit E1.
3. INDEXES
Labor Index: "Aircraft Engines and Engine Parts" Standard Industrial
Classification 3724--Average hourly earnings (hereinafter referred to
as "HE SIC 3724"), published by the US Department of Labor, Bureau of
Labor Statistics, in "Employment and Earnings," Establishment Data:
Hours and Earnings (Table B-15: Average hours and earnings of
production or nonsupervisory workers on private nonfarm payrolls by
detailed industry) or such other names which may be from time to time
used for the publication title and/or table.
Material Index: "Metals and Metal Products" Code l0 (hereinafter
referred to as "MMP-Index"), published by the US Department of Labor,
Bureau of Labor Statistics, in "PPI Detailed Report" (Table 6: Producer
price indexes and percent changes for commodity groupings and
individual items, not seasonally adjusted) (Base year 1982 = 100) or
such other names which may be from time to time used for the
publication title and/or table.
Energy Index: "Fuels and Related Products and Power" Code 5
(hereinafter referred to as "EP-Index"), published by the US Department
of Labor, Bureau of Labor Statistics, in "PPI Detailed Report" (Table
6: Producer price indexes and percent changes for commodity groupings
and individual items, not seasonally adjusted) (Base year 1982 = 100)
or such other names which may be from time to time used for the
publication title and/or table.
<PAGE> 116
4. REVISION FORMULA
Pn = Pb [(0.60 HEn)/HEb + (0.30 MMPn)/MMPb + (0.l0 EPn)/EPb]
Where
Pn = Revised V2524-A5 Reference Price of a set of two
(2) A319 Propulsion Systems at delivery of the
Aircraft.
Pb = V2524-A5 Reference Price at economic conditions
November 1990.
HEn = HE SIC 3724 for the fourth month prior to the month
of delivery of the Aircraft.
HEb = HE SIC 3724 for November 1990 (= 15.20)
MMPn = MMP-Index for the fourth month prior to the month of
delivery of the Aircraft.
MMPb = MMP-Index for November 1990 (= 123.3)
EPn = EP-Index for the fourth month prior to the month of
delivery of the Aircraft.
EPb = EP-Index for November 1990 (= 97.4)
In determining the Revised V2524-A5 Reference Price each quotient
((0.60 HEn)/HEb, (0.30 MMPn)/MMPb, (0.l0 EPn)/EPb) will be calculated
to the nearest ten thousandth (4 decimals). If the next succeeding
place is five (5) or more the preceding decimal place will be raised to
the next higher figure.
After final computation, Pn will be rounded to the next whole number
(0.5 or more rounded to l).
5. GENERAL PROVISIONS
5.1 The Revised V2524-A5 Reference Price at delivery of the Aircraft will
be the final price and will not be subject to further adjustments in
the indexes.
5.2 If no final index value is available for any of the applicable months,
the published preliminary figures will be the basis on which the
Revised V2524-A5 Reference Price will be computed.
Exh. E1 - 2
<PAGE> 117
5.3 If the US Department of Labor substantially revises the methodology of
calculation of the indexes referred to in this Exhibit E1 or
discontinues any of these indexes, the Seller will, in agreement with
International Aero Engines, apply a substitute for the revised or
discontinued index, such substitute index to lead in application to the
same adjustment result, insofar as possible, as would have been
achieved by continuing the use of the original index as it may have
fluctuated had it not been revised or discontinued. Appropriate
revision of the formula will be made to accomplish this result.
5.4 Should the above escalation provisions become null and void by action
of the US Government, the V2524-A5 Reference Price will be adjusted to
reflect increases in the cost of labor, material and fuel which have
occurred from the period represented by the applicable V2524-A5
Reference Price Indexes to the fourth month prior to the scheduled
delivery of the Aircraft.
5.5 The Revised V2524-A5 Reference Price at delivery of the Aircraft in no
event will be less than the V2524-A5 Reference Price defined in
Paragraph 1 of this Exhibit E1.
Exh. E1 - 3
<PAGE> 118
EXHIBIT E2
IAE PRICE REVISION FORMULA FOR A320 AIRCRAFT
l. REFERENCE PRICE
The V2527-A5 Reference Price of a set of two (2) International Aero
Engines V2527-A5 Propulsion Systems is as quoted in Subclause 4.2.2 of
the Agreement.
This V2527-A5 Reference Price is valid for Aircraft delivered
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}, and is subject to adjustment for changes in economic
conditions as measured by data obtained from the US Department of
Labor, Bureau of Labor Statistics, and in accordance with the
provisions of Paragraphs 4 and 5 of this Exhibit E2.
2. REFERENCE PERIOD
The above V2527-A5 Reference Price has been established in accordance
with the economic conditions prevailing in March 1988 (or July 1988
theoretical delivery conditions) as defined, according to International
Aero Engines, by the HEb, MMPb and EPb index values indicated in
Paragraph 4 of this Exhibit E2.
3. INDEXES
Labor Index: "Aircraft Engines and Engine Parts" Standard Industrial
Classification 3724--Average hourly earnings (hereinafter referred to
as "HE SIC 3724"), published by the US Department of Labor, Bureau of
Labor Statistics, in "Employment and Earnings," Establishment Data:
Hours and Earnings (Table B-15: Average hours and earnings of
production or nonsupervisory workers on private nonfarm payrolls by
detailed industry) or such other names which may be from time to time
used for the publication title and/or table.
Material Index: "Metals and Metal Products" Code l0 (hereinafter
referred to as "MMP- Index"), published by the US Department of Labor,
Bureau of Labor Statistics, in "PPI Detailed Report" (Table 6: Producer
price indexes and percent changes for commodity groupings and
individual items, not seasonally adjusted) (Base year 1982 = 100) or
such other names which may be from time to time used for the
publication title and/or table.
Energy Index: "Fuels and Related Products and Power" Code 5
(hereinafter referred to as "EP-Index"), published by the US Department
of Labor, Bureau of Labor Statistics, in "PPI Detailed Report" (Table
6: Producer price indexes and percent changes for commodity groupings
and individual items, not seasonally adjusted) (Base year 1982 = 100)
or such other names which may be from time to time used for the
publication title and/or table.
<PAGE> 119
4. REVISION FORMULA
Pn = Pb [(0.60 HEn)/HEb + (0.30 MMPn)/MMPb + (0.l0 EPn)/EPb]
Where
Pn = Revised V2527-A5 Reference Price of a set of two
(2) A320 Propulsion Systems at delivery of the
Aircraft.
Pb = V2527-A5 Reference Price at March 1988 economic
conditions.
HEn = HE SIC 3724 for the fourth month prior to the month
of delivery of the Aircraft.
HEb = HE SIC 3724 for March 1988 (= 13.58)
MMPn = MMP-Index for the fourth month prior to the month of
delivery of the Aircraft.
MMPb = MMP-Index for March 1988 (= 115.4)
EPn = EP-Index for the fourth month prior to the month of
delivery of the Aircraft.
EPb = EP-Index for March 1988 (= 65.9)
In determining the Revised V2527-A5 Reference Price each quotient
((0.60 HEn)/HEb, (0.30 MMPn)/MMPb, (0.l0 EPn)/EPb) will be calculated
to the nearest ten thousandth (4 decimals). If the next succeeding
place is five (5) or more the preceding decimal place will be raised to
the next higher figure.
After final computation, Pn will be rounded to the next whole number
(0.5 or more rounded to l).
5. GENERAL PROVISIONS
5.1 The Revised V2527-A5 Reference Price at delivery of the Aircraft will
be the final price and will not be subject to further adjustments in
the indexes.
5.2 If no final index value is available for any of the applicable months,
the published preliminary figures will be the basis on which the
Revised V2527-A5 Reference Price will be computed.
Exh. E2 - 2
<PAGE> 120
5.3 If the US Department of Labor substantially revises the methodology of
calculation of the indexes referred to in this Exhibit E2 or
discontinues any of these indexes, the Seller will, in agreement with
International Aero Engines, apply a substitute for the revised or
discontinued index, such substitute index to lead in application to the
same adjustment result, insofar as possible, as would have been
achieved by continuing the use of the original index as it may have
fluctuated had it not been revised or discontinued. Appropriate
revision of the formula will be made to accomplish this result.
5.4 Should the above escalation provisions become null and void by action
of the US Government, the V2527-A5 Reference Price will be adjusted to
reflect increases in the cost of labor, material and fuel which have
occurred from the period represented by the applicable V2527-A5
Reference Price Indexes to the fourth month prior to the scheduled
delivery of the Aircraft.
5.5 The Revised V2527-A5 Reference Price at delivery of the Aircraft in no
event will be less than the V2527-A5 Reference Price defined in
Paragraph 1 of this Exhibit E2.
Exh. E2 - 3
<PAGE> 121
EXHIBIT F
SELLER SERVICE LIFE POLICY
1. The Items of primary and auxiliary structure described hereunder
are covered by the Service Life Policy described in Subclause 12.2
of the Agreement.
2. WINGS - CENTER AND OUTER WING BOX
2.1 Spars
2.2 Ribs Inside the Wing Box
2.3 Upper and Lower Panels of the Wing Box
2.4 Fittings
2.4.1 Attachment fittings for the flap structure
2.4.2 Attachment fittings for the engine pylons
2.4.3 Attachment fittings for the main landing gear
2.4.4 Attachment fittings for the center wing box
2.5 Auxiliary Support Structure
2.5.1 For the slats:
2.5.1.1 Ribs supporting the track rollers on wing box structure
2.5.1.2 Ribs supporting the actuators on wing box structure
2.5.2 For the ailerons:
2.5.2.1 Hinge brackets and ribs on wing box rear spar or shroud box
2.5.2.2 Actuator fittings on wing box rear spar or shroud box
2.5.3 For airbrakes, spoilers, lift dumpers:
2.5.3.1 Hinge brackets and ribs on wing box rear spar or shroud box
2.5.3.2 Actuator fittings on wing box rear spar or shroud box
<PAGE> 122
3. FUSELAGE
3.1 Fuselage Structure
3.1.1 Fore and aft bulkheads
3.1.2 Pressurized floors and bulkheads surrounding the main and nose
gear wheel well and center wing box
3.1.3 Skins with doublers, stringers and frames from the forward
pressure bulkheads to the frame supporting the rear attachment of
horizontal stabilizer
3.1.4 Window and windscreen attachment structure but excluding
transparencies
3.1.5 Passenger and cargo doors internal structure
3.1.6 Sills excluding scuff plates and upper beams surrounding passenger
and cargo door apertures
3.1.7 Cockpit floor structure and passenger cabin floor beams excluding
floor panels and seat rails
3.1.8 Cargo floor structure, excluding floor panels
3.1.9 Keel beam structure
3.1.10 All fittings fixed on primary structure and related to main and
nose landing gear doors.
3.2 Fittings
3.2.1 Landing gear attachment and uplock fittings
3.2.2 Support structure and attachment fittings to the
vertical/horizontal stabilizers, and to trim screw actuators.
4. STABILIZERS
4.1 Horizontal Stabilizer Main Structural Box
4.1.1 Spars
4.1.2 Ribs
4.1.3 Upper and lower skins and stringers
Exh. F - 2
<PAGE> 123
4.1.4 Attachment fittings to fuselage and to the trim screw actuator and
center joint
4.1.5 Elevator support structure
4.1.5.1 Hinge bracket
4.1.5.2 Servocontrol attachment brackets
4.2 Vertical Stabilizer Main Structural Box
4.2.1 Spars
4.2.2 Ribs
4.2.3 Skins and stringers
4.2.4 Attachment fittings to fuselage
4.2.5 Rudder support structure
4.2.5.1 Hinge brackets
4.2.5.2 Servocontrol attachment brackets
5. ENGINE PYLON BOX
5.1 Lower spar and beams
5.2 Upper horizontal panels and beams
5.3 Vertical ribs
5.4 Side walls with stringers
5.5 Attachment fittings to wings
5.6 Attachment fittings to engine
6. Bearing and roller assemblies, bearing surfaces, bushings, bolts,
rivets, access and inspection doors, including manhole doors,
latching mechanisms, all system components, commercial interior
parts, insulation and related installation and connecting devices
are excluded from this Seller Service Life Policy.
Exh. F - 3
<PAGE> 124
EXHIBIT G
CERTIFICATE OF ACCEPTANCE
In accordance with the terms of that certain Airbus A319/A320 Purchase Agreement
(the "Purchase Agreement") dated as of September 12, 1997 between AVSA, S.A.R.L.
("AVSA") and
America West Airlines, Inc. ("AWE"), the acceptance inspection relating to the
AIRBUS A319 Aircraft (or the A320 Aircraft) (the "Aircraft"), manufacturer's
serial no. ______, FAA Registration No.:_____________, with two (2) IAE
____________ series propulsion systems installed thereon, serial nos. (position
#1) and ___________ (position #2) has taken place at Hamburg, Germany, for the
A319 Aircraft and Toulouse, France, for the A320 Aircraft on the _____ day of
__________, _________.
In view of said inspection having been carried out with satisfactory results,
and with any remaining discrepancies noted separately, AWE hereby accepts
delivery of the Aircraft as being in conformity with the provisions of the
Purchase Agreement.
This acceptance shall not impair the rights of AWE that derive from the
warranties relating to the Aircraft set forth in the Purchase Agreement.
AWE specifically recognizes that it has waived any right it may have at law or
otherwise to revoke this acceptance of the Aircraft.
RECEIPT AND ACCEPTANCE OF THE
ABOVE-DESCRIBED AIRCRAFT
ACKNOWLEDGED
________________________________
America West Airlines, Inc.
By:
________________________________
Title:
________________________________
<PAGE> 125
EXHIBIT H
TECHNICAL PUBLICATIONS
GENERAL
This Exhibit H lists the form, type, quantity and delivery dates for
the Technical Publications to be provided to the Buyer pursuant to
Clause 14 of the Agreement.
It is hereby agreed and understood that Technical Publications listed
hereafter will be provided by the Seller to the Buyer under a revision
service format to include both A319 Aircraft and A320 Aircraft with the
exception of the following Technical Publications which shall be
provided specifically for the A319 Aircraft:
- Maintenance Facility Planning Manual
- Flight Manual
- Master Minimum Equipment List
- Weight and Balance Manual
- Component Documentation Status
- Airplane Characteristics
- Aircraft Recovery Manual
- Crash Crew Chart
The Technical Publications are published in accordance with ATA
Specification 200 revision 23, with the exception of certain Component
Maintenance Manuals, which may be written to an ATA Specification 200
revision other than revision 23.
<PAGE> 126
1. ENGINEERING DOCUMENTS
1.1 Installation and Assembly Drawings (IAD)--C
The IAD will be delivered according to the Seller's standard for the
major Assembly and Installation drawings.
1.2 Drawing Number Index (DNI)--C
The DNI lists applicable drawings of the Aircraft delivered under the
Agreement.
1.3 Process and Material Specification (PMS)
The PMS contains data related to manufacturing processes, material
identification and treatments used in the construction and assembly of
the Aircraft.
1.4 Standards Manual (SM)
The SM contains data about Seller approved standards and includes cross
reference lists.
2. MAINTENANCE AND ASSOCIATED MANUALS
2.1 APU Build-up Manual (ABM)
The ABM follows the format adopted for the Power Plant Build-up Manual.
2.2 Aircraft Maintenance Manual (AMM)--C
The component location section of the AMM will show those components
detailed in the AMM maintenance procedures. The trouble shooting part
is covered in Subparagraph 2.19 below.
*Aircraft Maintenance Manual Chapter 05 Time Limits (Service Life
Limits) and Maintenance Checks are only delivered in hard copies.
2.3 Aircraft Schematics Manual (ASM)--C
The ASM is part of the Wiring Manual. Supplied as a separate manual for
schematics.
2.4 Aircraft Wiring Manual (AWM)--C
The AWM is part of the Wiring Manual. Supplied as a separate manual for
wirings.
Exh. H - 2
<PAGE> 127
2.5 Aircraft Wiring Lists (AWL)--C
The AWL is part of the Wiring Manual. Supplied as a separate document
for lists.
2.6 Consumable Material List (CML)
The CML details the characteristics and gives procurement sources of
consumable materials such as grease, oil, etc.
2.7 Duct Repair Manual (DRM)
The DRM contains all the data necessary to locate, identify, repair
and/or replace sub-assemblies of metallic ducts. It also includes
details of tests necessary after repair.
2.8 Fuel Pipe Repair Manual (FPRM)
The FPRM provides workshop repair procedures and data for specific fuel
pipes, after removal from any aircraft of the Manufacturer of the type
of the Aircraft.
2.9 Illustrated Parts Catalog (IPC)--C
The IPC for the power plant is provided separately.
2.10 Illustrated Parts Catalog (power plant) (PPIPC)--C
The PPIPC covers line replaceable parts and units of the power plant,
provided by the Propulsion Systems manufacturer.
2.11 Illustrated Tool and Equipment Manual (TEM)
The TEM provides information on Ground Equipment and Tools listed in
the Seller's Aircraft Maintenance Manual.
2.12 Maintenance Facility Planning (MFP)
The MFP provides information that will assist airline personnel
concerned with long term planning of ramp or terminal operations,
Aircraft maintenance on the ramp and in the hangar, overhaul and
testing of structure and system components.
2.13 Maintenance Planning Document (MPD)
The MPD provides maintenance data necessary to plan and conduct
Aircraft maintenance checks and inspections.
Exh. H - 3
<PAGE> 128
2.14 Power Plant Build-up Manual (PPBM)
The PPBM provides instructions for the installation of a quick engine
change kit on a bare engine.
2.15 Support Equipment Summary (SES)
The SES lists support equipment recommended by the Seller, the
Propulsion Systems manufacturer and Vendors.
2.16 Tool Drawings (TD)
TD's will be supplied in the form of aperture cards for the Seller and,
when available, Vendor maintenance tools. A Tool Drawing Index (TDI)
will be supplied.
2.17 Tool Drawing Index (TDI)
The TDI is an alpha-numeric listing of the TD's.
2.18 Tool and Equipment Bulletin (TEB)
The TEB provides advance information related to tools and test
equipment development.
2.19 Trouble Shooting Manual (TSM)--C
The TSM complements the CFDS and provides trouble-shooting data in the
following three levels:
Level 1 - Aimed at line use. Fault isolation guidance for
systems or parts of systems monitored mainly by CFDS.
Also guidance for systems not monitored by CFDS.
Level 2 - Aimed at hangar use. Fault isolation guidance for
non-CFDS monitored systems in the form of functional
block diagrams, charts and tables.
Level 3 - Aimed at engineering use. List of CFDS messages and
decoding of trouble shooting data (decoding of coded
messages provided by the CFDS). Level 3 is supplied
on floppy disk.
Exh. H - 4
<PAGE> 129
3. MISCELLANEOUS DOCUMENTATION
3.1 Airplane Characteristics for Airport Planning (AC)
The AC will be in general accordance with Specification NAS 3601.
3.2 Aircraft Recovery Manual (ARM)
The ARM provides the following planning information: preparing and
moving a disabled aircraft that may be obstructing airport traffic.
3.3 Cargo Loading System Manual (CLS)
The CLS details handling procedures for the Cargo Loading System.
3.4 Crash Crew Chart (CCC)
The CCC provides information concerning access to the Aircraft
interior, location of safety equipment, hazardous liquids, etc.
3.5 Guidelines for Customer Originated Changes (GCOC)
The GCOC provides production and presentation rules for the data
covering Buyer originated changes on the Aircraft to be incorporated by
the Seller in the Technical Publications as per Subclause 14.11 of the
Agreement.
3.6 List of Radioactive and Hazardous Elements (LRE)
The LRE provides information on components and materials for which
specific precautions have to be taken.
3.7 List of Applicable Publications (LAP)--C
The LAP will record the Seller's various Airframe Technical
Publications indicating the last valid revision number and issue date.
3.8 Livestock Transportation Manual (LTM)
The LTM details the facilities, equipment and procedures necessary for
live animal transportation in aircraft of the Manufacturer of the type
of the Aircraft.
Exh. H - 5
<PAGE> 130
3.9 Service Bulletins (SB)--C
The Buyer will receive all Service Bulletins applicable to the
Aircraft.
3.10 Service Bulletin Index (SBI)
The SBI is a listing of all Service Bulletins issued in ATA 100 chapter
sequence.
The SBI provides details of SB number, SB title, associated
modification number, issue status, Vendor SB number (if applicable) and
affected fleet.
3.11 Service Information Letters (SIL)
SILs give information of a general nature and also about minor changes
or inspections the Buyer may wish to apply under the Buyer's authority.
3.12 Transportability Manual (TM)
The TM gives cargo hold dimensions for currently available cargo
Aircraft, transportation information and requirements for large
Aircraft components. Component dimensions, weights and shelf life
limitations are also given.
3.13 Supplier Product Support Agreements (SPSA)
The SPSA is a collection of product support conditions negotiated by
the Manufacturer with the suppliers of Aircraft equipment.
3.14 Vendor Information Manual (VIM)
The VIM provides Vendor contact information.
3.15 Vendor Information Manual (GSE) (VIM/GSE)
The VIM/GSE gives contact names and addresses of Ground Support
Equipment (GSE) vendors and their product support organizations.
4. OPERATIONAL MANUALS
4.1 Abnormal/Emergency Check List (CL)--C
The CL is an extract from the FCOM presented as a booklet for quick
in-flight use.
Exh. H - 6
<PAGE> 131
4.2 Flight Crew Operating Manual (FCOM)--C
The FCOM provides Aircraft and systems descriptions, normal, abnormal
and emergency procedures as well as operational performance.
4.3 FAA Approved Flight Manual (AFM)--C
The AFM provides Aircraft performance operating limitations and other
flight data required by the relevant airworthiness authorities for
certification. It includes the Configuration Deviation List (CDL).
4.4 Master Minimum Equipment List (MMEL)
The MMEL defines the components and the related conditions under which,
when the components are defective, the Aircraft may be cleared for
flight. In addition, the MMEL provides the necessary information to
establish the Buyer's own Minimum Equipment List (MEL).
4.5 Performance Engineering Program (PEP)
The PEP consists of a Low Speed Performance data base and a High Speed
Performance data base together with their respective programs. The
Performance Engineering Program may be used by the Buyer under the
license conditions set forth in Appendix A to this Exhibit H.
The Low Speed Performance programs consist of the Take-off and Landing
Chart computation program (TLC) which permits the computation of:
- regulatory take-off and landing performance,
- noncertified take-off performance accounting for runway data and
weather, together with the Tabulation and Interpolation program (TAB),
issued with the AFM, which permits the reading, editing and
interpolation of the tables listed in the AFM.
The High Speed Performance programs are the In Flight Performance
computation program (IFP) which permits computation of Aircraft
performance for each flight phase and the Aircraft Performance
Monitoring program (APM) which permits analysis of Aircraft cruise
performance from data recorded during stabilized flight periods.
4.6 Performance Program Manual (PPM)
The PPM is the users' guide for the Performance Engineering Program
(PEP).
Exh. H - 7
<PAGE> 132
4.7 Weight and Balance Manual (WBM) and
Weight and Balance Manual Supplements--C
The corresponding supplements:
-Delivery Weighing Report,
-Equipment List,
will be delivered with each Aircraft.
5. OVERHAUL DATA
5.1 Component Documentation Status (CDS)--C
The CDS lists Component Maintenance Manuals in accordance with
Subparagraphs 5.4 and 5.5 below.
5.2 Component Evolution List (CEL)
The CEL is a noncustomized document listing all components on the
Aircraft and also gives the evolution of each component.
The information is provided in order of:
- part number
- FSCM
- ATA reference.
5.3 Cable Fabrication Manual (CFM)
The CFM contains all the data necessary to locate, identify,
manufacture and test control cables used on the Aircraft. An appendix
contains cable end fitting specification sheets, and detailed
manufacturing instructions.
5.4 Component Maintenance Manual Manufacturer (CMMM)
The CMMM contains all the data necessary to locate, identify and
maintain Aircraft components manufactured by the Seller.
5.5 Component Maintenance Manual Vendor (CMMV)
The Seller shall endeavor to ensure that each Vendor of repairable
components shall deliver to the Buyer a Component Maintenance Manual
Vendor with revision service.
Exh. H - 8
<PAGE> 133
6. STRUCTURAL MANUALS
6.1 Nondestructive Testing Manual (NTM)
The NTM supplies Airframe data necessary to carry out nondestructive
testing.
6.2 Structural Repair Manual (SRM)
The SRM contains descriptive information for identification and repair
of the Airframe primary and secondary structure.
Exh. H - 9
<PAGE> 134
FORMAT
AC APERTURE CARD. Refers to 35mm film contained on punched aperture cards.
CD CD-ROM.
D FLOPPY DISK
F MICROFILM. Refers to 16mm roll film in 3M type cartridges.
MP Refers to paper printed one side, unpunched quality shall be suitable
for further reproduction or microfilming.
MT MAGNETIC TAPE
P1 PRINTED ONE SIDE. Refers to manuals in paper with print on one side of
the sheets only.
P2 PRINTED BOTH SIDES. Refers to manuals with print on both sides of the
sheets.
SMF SILVER MASTER FILM. Refers to thick diazo film suitable for further
reproduction.
TYPE
C CUSTOMIZED. Refers to manuals which are customized to specific MSNs.
E ENVELOPE. Refers to manuals which are not customized.
P PRELIMINARY. Refers to preliminary data or manuals which may consist
of:
-either one time issue not maintained by revision service, or
-preliminary issues maintained by revision service until final manual
or data delivery, or
-supply of best available data under final format with progressive
completion through revision service.
Exh. H - 10
<PAGE> 135
DELIVERY
Manual delivery is expressed either as the number of days prior to delivery of
the first Aircraft or as nil (0), which designates the date of delivery of the
first Aircraft.
It is agreed that the number of days indicated will be rounded up to the next
regular revision release date.
Quantity reflects the number of revision or full manual whenever appropriate,
which shall be provided to the Buyer.
MANUALS AVAILABLE (headlines)
1 - ENGINEERING DOCUMENTS
2 - MAINTENANCE & ASSOCIATED MANUALS
3 - MISCELLANEOUS PUBLICATIONS
4 - OPERATIONAL MANUALS AND DATA
5 - OVERHAUL DATA
6 - STRUCTURAL MANUALS
Exh. H - 11
<PAGE> 136
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
MANUALS AVAILABLE {CONFIDENTIAL
(detailed) Abbr MATERIAL Rev Deliv.
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
1. ENGINEERING DOCUMENTS
+(1) Installation and Assembly IAD (2) 0
Drawings
{CONFIDENTIAL
+ Parts Usage (Effectivity) PU MATERIAL (2) 0
OMITTED AND
+ Schedule (Drawing S FILED (2) 0
Nomenclature) SEPARATELY
+ Drawing Number Index DNI WITH THE (2) 0
+ Process and Material PMS SECURITIES AND AN 0
Specification EXCHANGE AN 0
+ Standards Manual SM COMMISSION AN 0
+ Electrical Load Analysis ELA PURSUANT TO A AN 0
Stress Data and Analysis(3) REQUEST FOR
CONFIDENTIAL
TREATMENT}
</TABLE>
- --------
(1)Plus (+) sign indicates a combined A319/A320/A321 (if applicable)
Technical Publication.
(2)Revision service for the manufacture drawings is restricted to cover
the Aircraft configuration at delivery.
(3)The Seller will provide, after the date hereof, an index of
available stress data for the Aircraft. The Seller will provide the Buyer stress
data on a case-by-case basis upon the Buyer's request. Upon receipt of the
Buyer's request, the Seller will immediately make available the requested stress
data through its design office.
Exh. H - 12
<PAGE> 137
<TABLE>
<S> <C> <C> <C> <C>
MANUALS AVAILABLE {CONFIDENTIAL
(detailed) Abbr MATERIAL Rev Deliv.
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
2. MAINTENANCE & ASSOCIATED MANUALS
+ APU Build-up Manual ABM AN 90
+ Aircraft Maintenance Manual AMM 4 90
4 90
4 90
+ Aircraft Schematics Manual ASM {CONFIDENTIAL 4 90
MATERIAL 4 90
OMITTED AND 4 90
FILED 4 90
+ Aircraft Wiring Manual AWM SEPARATELY 4 90
WITH THE 4 90
SECURITIES AND 4 90
EXCHANGE 4 90
+ Aircraft Wiring Lists AWL COMMISSION 4 90
PURSUANT TO A 4 90
REQUEST FOR 4 90
CONFIDENTIAL 4 90
+ Consumable Material List CML TREATMENT} AN 90
+ Component Location Manual CLM 4 90
+ Duct Repair Manual DRM AN 90
+ Fuel Pipe Repair Manual FPRM AN 90
</TABLE>
Exh. H - 13
<PAGE> 138
<TABLE>
<S> <C> <C> <C> <C>
MANUALS AVAILABLE {CONFIDENTIAL
(detailed) Abbr MATERIAL Rev Deliv.
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
+ Illustrated Parts Catalog IPC 4 90
(Airframe) 4 90
4 90
+ Illustrated Parts Catalog PIPC {CONFIDENTIAL 4 90
(Power Plant)(5) MATERIAL 4 90
OMITTED AND 4 90
+ Illustrated Tool and Equipment TEM FILED AN 360
Manual SEPARATELY
Maintenance Facility Planning MF WITH THE AN 90
+ Maintenance Planning MPD SECURITIES AND AN 360
Document EXCHANGE
+ Power Plant Build-up Manual(5) PPBM COMMISSION AN 90
+ Support Equipment Summary SES PURSUANT TO A AN 360
REQUEST FOR AN 360
CONFIDENTIAL AN 360
+ Tool and Equipment Drawings TD TREATMENT} AN 360
+ Tool and Equipment Index TEI AN 360
</TABLE>
- ------------------
(5)Supplied by the Propulsion Systems Manufacturer
(5)Supplied by the Propulsion Systems manufacturer
Exh. H - 14
<PAGE> 139
<TABLE>
<S> <C> <C> <C> <C>
MANUALS AVAILABLE {CONFIDENTIAL
(detailed) Abbr MATERIAL Rev Deliv.
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
+ Trouble Shooting Manual TSM {CONFIDENTIAL 4 90
MATERIAL 4 90
OMITTED AND 4 90
FILED 4 90
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
+ Aircraft Documentation ADRES 4
Retrieval System
+ Computer Assisted Aircraft CAATS 4
Troubleshooting
3. MISCELLANEOUS PUBLICATIONS
Airplane Characteristics for AC {CONFIDENTIAL AN 360
Airport Planning MATERIAL
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
Aircraft Recovery Manual ARM AN 90
AN 90
AN 90
AN 90
Crash Crew Chart CCC AN 180
+ Guidelines for Customer GCOC AN 0
Originated Changes
+ List of Radioactive and LRE AN 90
Hazardous Elements
</TABLE>
Exh. H - 15
<PAGE> 140
<TABLE>
<S> <C> <C> <C> <C>
MANUALS AVAILABLE {CONFIDENTIAL
(detailed) Abbr MATERIAL Rev Deliv.
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
+ List of Applicable Publications LAP {CONFIDENTIAL 4 90
MATERIAL
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
+ Livestock Transportation LTM AN 90
Manual
+ Service Bulletin SB AN 0
AN 0
AN 0
+ Service Bulletin Index SBI AN 90
+ Service Information Letters SIL AN 0
+ Technical Publications TPCI AN
Combined Index
+ Transportability Manual TM AN 90
Supplier Product Support SPSA AN 360
Agreements (SPSA)
Vendor Information Manual VIM AN 360
+ Vendor Information Manual VIM\ AN 360
GSE GSE
</TABLE>
4. OPERATIONAL MANUALS AND DATA
Exh. H - 16
<PAGE> 141
<TABLE>
<S> <C> <C> <C> <C>
MANUALS AVAILABLE {CONFIDENTIAL
(detailed) Abbr MATERIAL Rev Deliv.
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
+ Check CL/QRH {CONFIDENTIAL AN 90
List/Abnormal/Emergency/ MATERIAL
Quick Reference Handbook OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
+ Flight Crew Operating Manual(6) FCOM AN 90
Flight Manual FM AN 0
Master Minimum Equipment MMEL AN 90
List AN 90
+ Performance Engineering PEP AN 90
Program
+ Performance Program Manual PPM AN 90
Weight and Balance Manual WBM AN 0
AN 0
5 OVERHAUL DATA
</TABLE>
- ------------------
(6){CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
Exh. H - 17
<PAGE> 142
<TABLE>
<S> <C> <C> <C> <C>
MANUALS AVAILABLE {CONFIDENTIAL
(detailed) Abbr MATERIAL Rev Deliv.
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
Component Documentation CDS AN 180
Status {CONFIDENTIAL
MATERIAL
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
+ Component Evolution List(7) CEL AN
+ Cable Fabrication Manual CFM AN 90
+ Component Maintenance CMMM AN 180
Manual Airframe
Manufacturer(8)
+ Component Maintenance CMMV AN 180
Manual Vendor
</TABLE>
- ------------------
(7)Optional - Delivered as follow-on for CDS.
(8)The Buyer will receive one generic preliminary copy prior to
delivery of the first Aircraft.
Exh. H - 18
<PAGE> 143
<TABLE>
<S> <C> <C> <C> <C>
MANUALS AVAILABLE {CONFIDENTIAL
(detailed) Abbr MATERIAL Rev Deliv.
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
6 STRUCTURAL MANUALS
+ Nondestructive Testing Manual NTM {CONFIDENTIAL 4 90
MATERIAL
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
+ Structural Repair Manual SRM EXCHANGE 4 90
COMMISSION 4 90
PURSUANT TO A 4 90
REQUEST FOR
CONFIDENTIAL
TREATMENT}
</TABLE>
Exh. H/App. A - 19
<PAGE> 144
APPENDIX A TO
EXHIBIT H
LICENSE FOR USE
OF THE PERFORMANCE ENGINEERING PROGRAMS (PEP)
1. GRANT
The Seller grants to the Buyer the right to use the Performance
Engineering Programs (PEP) in machine readable form on a single
computer network during the term of this license agreement (the
"License Agreement").
Use of the PEP in readable form shall be limited to one (1) copy.
However, the Buyer may make duplicate copies, provided that they are
either contained in the same network as the original copy, or produced
for checkpoint and restart purposes or made with the consent of the
Seller for a specific need.
2. MERGING
The PEP may be used and adapted in machine readable form for the
purpose of merging it into other program material of the Buyer, but, on
termination of this License Agreement, the Buyer shall remove the PEP
from the other program material with which it has been merged.
The Buyer agrees to reproduce the copyright and other notices as they
appear on or within the original media on any copies that the Buyer
makes of the PEP.
3. PERSONAL LICENSE
The above described license is personal to the Buyer and its computer
service contractors, nontransferable and nonexclusive.
4. INSTALLATION
It is the Buyer's responsibility to install the PEP and to perform any
mergings and checks. The Seller shall, however, assist the Buyer's
operations engineers in the initial phase following the delivery of the
PEP until such personnel reach the familiarization level required to
make inputs and correlate outputs.
Exh. H/App. A - 1
<PAGE> 145
5. PROPRIETARY RIGHTS AND NONDISCLOSURE
5.1 The PEP and the copyright and other proprietary rights of whatever
nature in the PEP are and shall remain with the Seller. The PEP and its
contents are designated as confidential.
5.2 The Buyer undertakes not to disclose the PEP, parts thereof or its
contents to any third party except the Buyer's computer service
provider, without the prior written consent of the Seller. Insofar as
it is necessary to disclose aspects of the PEP to employees, such
disclosure is permitted only for the purpose for which the PEP is
supplied and only to the employee who needs to know the same.
6. CONDITIONS OF USE
6.1 The Seller does not warrant that the PEP shall contain no errors.
However, should the PEP be found to contain any error at delivery of
the PEP, the Buyer shall notify the Seller promptly thereof and the
Seller shall take all proper steps to correct the same at its own
expense.
6.2 The Buyer shall ensure that the PEP is correctly used in appropriate
machines as indicated in the Performance Programs Manual (PPM) and that
staff are properly trained to use the same, to trace and correct
running faults, to restart and recover after fault and to operate
suitable checks for accuracy of input and output.
6.3 It is understood that the PPM is the user's guide of the PEP and that
the Buyer shall undertake to use the PEP in accordance with the PPM.
6.4 The PEP is supplied under the express condition that the Seller shall
have no liability in contract or in tort arising from or in connection
with the Buyer's use of or inability to use the PEP.
7. DURATION
Subject to the Buyer's compliance with the terms of this License
Agreement, the rights under this License Agreement shall be granted to
the Buyer for as long as the Buyer operates an Aircraft to which the
PEP refers.
Exh. H/App. A - 2
<PAGE> 146
APPENDIX B TO
EXHIBIT H
LICENSE FOR USE OF CD-ROM
1. GRANT
The Seller grants the Buyer the right to use the Aircraft Documentation
Retrieval System (ADRES) and/or the Computer Assisted Aircraft
Troubleshooting (CAATS) on CD-ROM for the term of this License. Use of
ADRES and/or CAATS shall be limited to the number of copies agreed
between the parties.
For clarification, it is hereby stated that the Power Plant IPC is not
part of the electronic IPC and is only available on other media (paper
of film).
2. TERM
The rights under the License shall be granted from the date of first
delivery of ADRES and/or CAATS to the end of the current year. The
grant shall be renewed automatically at the beginning of each calendar
year for another year, unless either the Buyer or the Seller gives
written notice to the other party three (3) months prior to the end of
the License of its intention to terminate the grant. Within thirty (30)
days of termination, the Buyer shall return ADRES and/or CAATS and all
copies thereof to the Seller.
3. REVISION SERVICE
The Seller shall provide revision service for ADRES and/or CAATS during
the term. The revision service shall be based on the revision service
which the Seller provides for the documentation in paper or film
format.
ADRES and/or CAATS CD-ROM shall be revised concurrently with the paper
and film deliveries. However, temporary revisions are not currently
provided in digital data format and are only available in paper format.
4. PERSONAL LICENSE
The License is personal to the Buyer, non-transferable and
non-exclusive. The Buyer shall not permit any third party to use ADRES
and/or CAATS, nor shall it transfer or sub-license ADRES and/or CAATS
to any third party, without prior written consent from the Seller.
5. INSTALLATION
The Seller shall provide the list of hardware on which ADRES and/or
CAATS shall be installed. The Buyer shall be responsible for procuring
such hardware and installing ADRES and/or CAATS.
Exh. H/App. B - 1
<PAGE> 147
6. PROPRIETARY RIGHTS
ADRES and/or CAATS are proprietary to the Seller and the copyright and
all other proprietary rights in ADRES and/or CAATS are and shall remain
the property of the Seller.
7. COPYRIGHT INDEMNITY
The Seller shall defend and indemnify the Buyer against any claim that
the normal use of ADRES and/or CAATS infringes the intellectual
property rights of any third party, provided that the Buyer:
7.1 immediately notifies the Seller of any such claim;
7.2 makes no admission or settlement of any claim;
7.3 allows the Seller to have sole control of all negotiations for its
settlement;
7.4 gives the Seller all reasonable assistance in connection therewith.
8. CONFIDENTIALITY
ADRES and/or CAATS and their contents are designated as confidential.
The Buyer undertakes not to disclose ADRES and/or CAATS or parts
thereof to any third party without the prior written consent of the
Seller. In so far as it is necessary to disclose aspects of ADRES
and/or CAATS to the employees, such disclosure is permitted solely for
the purpose for which ADRES and/or CAATS are supplied and only to those
employees who need to know the same.
9. CONDITIONS OF USE
The Buyer shall not make any copies of ADRES and/or CAATS, except for
installation purposes.
9.1 The Seller does not warrant that the operation of ADRES and/or CAATS
shall be error free. In the event of an error occurring within thirty
(30) days of delivery, the sole and exclusive liability of the Seller
shall be, at its expense, to correct ADRES and/or CAATS in the
following revision.
9.3 THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND
REMEDIES OF THE BUYER SET FORTH IN THIS LICENSE ARE EXCLUSIVE AND
IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES AND
RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF
THE SELLER AND OTHER RIGHTS, CLAIMS OR REMEDIES OF THE BUYER
AGAINST THE SELLER, EXPRESS OR IMPLIED, ARISING BY LAW OR
OTHERWISE, WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT IN THE
ADRES AND/OR CAATS DELIVERED UNDER THIS LICENSE.
Exh. H/App. B - 2
<PAGE> 148
10. TRAINING
In addition to the user guide supplied with ADRES and/or CAATS,
training and other assistance may be provided upon the Buyer's request
on conditions to be mutually agreed.
11. REPLACEMENT OF PRODUCT
For clarification purposes it is hereby expressly stated that ADRES
and/or CAATS shall be offered for a limited time period, not exceeding
the term of this License. In the event that the Seller should offer a
replacement product, the conditions for using such product shall be
subject to a separate agreement.
Exh. H/App. B - 3
<PAGE> 149
EXHIBIT G
CERTIFICATE OF ACCEPTANCE
In accordance with the terms of that certain Airbus A319/A320 Purchase Agreement
(the "Purchase Agreement") dated as of September 12, 1997 between AVSA, S.A.R.L.
("AVSA")
and
America West Airlines, Inc. ("AWE"), the acceptance inspection relating to the
AIRBUS A319 Aircraft (or the A320 Aircraft) (the "Aircraft"), manufacturer's
serial no. , FAA Registration No.: , with two (2) IAE
series propulsion systems installed thereon, serial nos. (position #1)
and (position #2) has taken place at Hamburg, Germany, for the A319
Aircraft and Toulouse, France, for the A320 Aircraft on the day
of , .
In view of said inspection having been carried out with satisfactory results,
and with any remaining discrepancies noted separately, AWE hereby accepts
delivery of the Aircraft as being in conformity with the provisions of the
Purchase Agreement.
This acceptance shall not impair the rights of AWE that derive from the
warranties relating to the Aircraft set forth in the Purchase Agreement.
AWE specifically recognizes that it has waived any right it may have at law or
otherwise to revoke this acceptance of the Aircraft.
RECEIPT AND ACCEPTANCE OF THE
ABOVE-DESCRIBED AIRCRAFT
ACKNOWLEDGED
------------------------------
America West Airlines, Inc.
By:
------------------------------
Title:
------------------------------
<PAGE> 150
EXHIBIT H
TECHNICAL PUBLICATIONS
GENERAL
This Exhibit H lists the form, type, quantity and delivery dates for
the Technical Publications to be provided to the Buyer pursuant to
Clause 14 of the Agreement.
It is hereby agreed and understood that Technical Publications listed
hereafter will be provided by the Seller to the Buyer under a revision
service format to include both A319 Aircraft and A320 Aircraft with the
exception of the following Technical Publications which shall be
provided specifically for the A319 Aircraft:
- Maintenance Facility Planning Manual
- Flight Manual
- Master Minimum Equipment List
- Weight and Balance Manual
- Component Documentation Status
- Airplane Characteristics
- Aircraft Recovery Manual
- Crash Crew Chart
The Technical Publications are published in accordance with ATA
Specification 200 revision 23, with the exception of certain Component
Maintenance Manuals, which may be written to an ATA Specification 200
revision other than revision 23.
<PAGE> 151
1. ENGINEERING DOCUMENTS
1.1 Installation and Assembly Drawings ( IAD)--C
The IAD will be delivered according to the Seller's standard for the
major Assembly and Installation drawings.
1.2 Drawing Number Index (DNI)--C
The DNI lists applicable drawings of the Aircraft delivered under the
Agreement.
1.3 Process and Material Specification (PMS)
The PMS contains data related to manufacturing processes, material
identification and treatments used in the construction and assembly of
the Aircraft.
1.4 Standards Manual (SM)
The SM contains data about Seller approved standards and includes cross
reference lists.
2. MAINTENANCE AND ASSOCIATED MANUALS
2.1 APU Build-up Manual (ABM)
The ABM follows the format adopted for the Power Plant Build-up Manual.
2.2 Aircraft Maintenance Manual (AMM)--C
The component location section of the AMM will show those components
detailed in the AMM maintenance procedures. The trouble shooting part
is covered in Subparagraph 2.19 below.
*Aircraft Maintenance Manual Chapter 05 Time Limits (Service Life
Limits) and Maintenance Checks are only delivered in hard copies.
2.3 Aircraft Schematics Manual (ASM)--C
The ASM is part of the Wiring Manual. Supplied as a separate manual for
schematics.
2.4 Aircraft Wiring Manual (AWM)--C
The AWM is part of the Wiring Manual. Supplied as a separate manual for
wirings.
Exh. H - 2
<PAGE> 152
2.5 Aircraft Wiring Lists (AWL)--C
The AWL is part of the Wiring Manual. Supplied as a separate document
for lists.
2.6 Consumable Material List (CML)
The CML details the characteristics and gives procurement sources of
consumable materials such as grease, oil, etc.
2.7 Duct Repair Manual (DRM)
The DRM contains all the data necessary to locate, identify, repair
and/or replace sub-assemblies of metallic ducts. It also includes
details of tests necessary after repair.
2.8 Fuel Pipe Repair Manual (FPRM)
The FPRM provides workshop repair procedures and data for specific fuel
pipes, after removal from any aircraft of the Manufacturer of the type
of the Aircraft.
2.9 Illustrated Parts Catalog (IPC)--C
The IPC for the power plant is provided separately.
2.10 Illustrated Parts Catalog (power plant) (PPIPC)--C
The PPIPC covers line replaceable parts and units of the power plant,
provided by the Propulsion Systems manufacturer.
2.11 Illustrated Tool and Equipment Manual (TEM)
The TEM provides information on Ground Equipment and Tools listed in
the Seller's Aircraft Maintenance Manual.
2.12 Maintenance Facility Planning (MFP)
The MFP provides information that will assist airline personnel
concerned with long term planning of ramp or terminal operations,
Aircraft maintenance on the ramp and in the hangar, overhaul and
testing of structure and system components.
2.13 Maintenance Planning Document (MPD)
The MPD provides maintenance data necessary to plan and conduct
Aircraft maintenance checks and inspections.
Exh. H - 3
<PAGE> 153
2.14 Power Plant Build-up Manual (PPBM)
The PPBM provides instructions for the installation of a quick engine
change kit on a bare engine.
2.15 Support Equipment Summary (SES)
The SES lists support equipment recommended by the Seller, the
Propulsion Systems manufacturer and Vendors.
2.16 Tool Drawings (TD)
TD's will be supplied in the form of aperture cards for the Seller and,
when available, Vendor maintenance tools. A Tool Drawing Index (TDI)
will be supplied.
2.17 Tool Drawing Index (TDI)
The TDI is an alpha-numeric listing of the TD's.
2.18 Tool and Equipment Bulletin (TEB)
The TEB provides advance information related to tools and test
equipment development.
2.19 Trouble Shooting Manual (TSM)--C
The TSM complements the CFDS and provides trouble-shooting data in the
following three levels:
Level 1 - Aimed at line use. Fault isolation guidance for
systems or parts of systems monitored mainly by CFDS.
Also guidance for systems not monitored by CFDS.
Level 2 - Aimed at hangar use. Fault isolation guidance for
non-CFDS monitored systems in the form of functional
block diagrams, charts and tables.
Level 3 - Aimed at engineering use. List of CFDS messages
and decoding of trouble shooting data (decoding of
coded messages provided by the CFDS). Level 3 is
supplied on floppy disk.
Exh. H - 4
<PAGE> 154
3. MISCELLANEOUS DOCUMENTATION
3.1 Airplane Characteristics for Airport Planning (AC)
The AC will be in general accordance with Specification NAS 3601.
3.2 Aircraft Recovery Manual (ARM)
The ARM provides the following planning information: preparing and
moving a disabled aircraft that may be obstructing airport traffic.
3.3 Cargo Loading System Manual (CLS)
The CLS details handling procedures for the Cargo Loading System.
3.4 Crash Crew Chart (CCC)
The CCC provides information concerning access to the Aircraft
interior, location of safety equipment, hazardous liquids, etc.
3.5 Guidelines for Customer Originated Changes (GCOC)
The GCOC provides production and presentation rules for the data
covering Buyer originated changes on the Aircraft to be incorporated by
the Seller in the Technical Publications as per Subclause 14.11 of the
Agreement.
3.6 List of Radioactive and Hazardous Elements (LRE)
The LRE provides information on components and materials for which
specific precautions have to be taken.
3.7 List of Applicable Publications (LAP)--C
The LAP will record the Seller's various Airframe Technical
Publications indicating the last valid revision number and issue date.
3.8 Livestock Transportation Manual (LTM)
The LTM details the facilities, equipment and procedures necessary for
live animal transportation in aircraft of the Manufacturer of the type
of the Aircraft.
Exh. H - 5
<PAGE> 155
3.9 Service Bulletins (SB)--C
The Buyer will receive all Service Bulletins applicable to the
Aircraft.
3.10 Service Bulletin Index (SBI)
The SBI is a listing of all Service Bulletins issued in ATA 100 chapter
sequence.
The SBI provides details of SB number, SB title, associated
modification number, issue status, Vendor SB number (if applicable) and
affected fleet.
3.11 Service Information Letters (SIL)
SILs give information of a general nature and also about minor changes
or inspections the Buyer may wish to apply under the Buyer's authority.
3.12 Transportability Manual (TM)
The TM gives cargo hold dimensions for currently available cargo
Aircraft, transportation information and requirements for large
Aircraft components. Component dimensions, weights and shelf life
limitations are also given.
3.13 Supplier Product Support Agreements (SPSA)
The SPSA is a collection of product support conditions negotiated by
the Manufacturer with the suppliers of Aircraft equipment.
3.14 Vendor Information Manual (VIM)
The VIM provides Vendor contact information.
3.15 Vendor Information Manual (GSE) (VIM/GSE)
The VIM/GSE gives contact names and addresses of Ground Support
Equipment (GSE) vendors and their product support organizations.
4. OPERATIONAL MANUALS
4.1 Abnormal/Emergency Check List (CL)--C
The CL is an extract from the FCOM presented as a booklet for quick
in-flight use.
Exh. H - 6
<PAGE> 156
4.2 Flight Crew Operating Manual (FCOM)--C
The FCOM provides Aircraft and systems descriptions, normal, abnormal
and emergency procedures as well as operational performance.
4.3 FAA Approved Flight Manual (AFM)--C
The AFM provides Aircraft performance operating limitations and other
flight data required by the relevant airworthiness authorities for
certification. It includes the Configuration Deviation List (CDL).
4.4 Master Minimum Equipment List (MMEL)
The MMEL defines the components and the related conditions under which,
when the components are defective, the Aircraft may be cleared for
flight. In addition, the MMEL provides the necessary information to
establish the Buyer's own Minimum Equipment List (MEL).
4.5 Performance Engineering Program (PEP)
The PEP consists of a Low Speed Performance data base and a High Speed
Performance data base together with their respective programs. The
Performance Engineering Program may be used by the Buyer under the
license conditions set forth in Appendix A to this Exhibit H.
The Low Speed Performance programs consist of the Take-off and Landing
Chart computation program (TLC) which permits the computation of:
- regulatory take-off and landing performance,
- noncertified take-off performance accounting for runway data and
weather, together with the Tabulation and Interpolation program (TAB),
issued with the AFM, which permits the reading, editing and
interpolation of the tables listed in the AFM.
The High Speed Performance programs are the In Flight Performance
computation program (IFP) which permits computation of Aircraft
performance for each flight phase and the Aircraft Performance
Monitoring program (APM) which permits analysis of Aircraft cruise
performance from data recorded during stabilized flight periods.
4.6 Performance Program Manual (PPM)
The PPM is the users' guide for the Performance Engineering Program
(PEP).
Exh. H - 7
<PAGE> 157
4.7 Weight and Balance Manual (WBM) and
Weight and Balance Manual Supplements--C
The corresponding supplements:
-Delivery Weighing Report,
-Equipment List,
will be delivered with each Aircraft.
5. OVERHAUL DATA
5.1 Component Documentation Status (CDS)--C
The CDS lists Component Maintenance Manuals in accordance with
Subparagraphs 5.4 and 5.5 below.
5.2 Component Evolution List (CEL)
The CEL is a noncustomized document listing all components on the
Aircraft and also gives the evolution of each component.
The information is provided in order of:
- part number
- FSCM
- ATA reference.
5.3 Cable Fabrication Manual (CFM)
The CFM contains all the data necessary to locate, identify,
manufacture and test control cables used on the Aircraft. An appendix
contains cable end fitting specification sheets, and detailed
manufacturing instructions.
5.4 Component Maintenance Manual Manufacturer (CMMM)
The CMMM contains all the data necessary to locate, identify and
maintain Aircraft components manufactured by the Seller.
5.5 Component Maintenance Manual Vendor (CMMV)
The Seller shall endeavor to ensure that each Vendor of repairable
components shall deliver to the Buyer a Component Maintenance Manual
Vendor with revision service.
Exh. H - 8
<PAGE> 158
6. STRUCTURAL MANUALS
6.1 Nondestructive Testing Manual (NTM)
The NTM supplies Airframe data necessary to carry out nondestructive
testing.
6.2 Structural Repair Manual (SRM)
The SRM contains descriptive information for identification and repair
of the Airframe primary and secondary structure.
Exh. H - 9
<PAGE> 159
FORMAT
AC APERTURE CARD. Refers to 35mm film contained on punched aperture cards.
CD CD-ROM.
D FLOPPY DISK
F MICROFILM. Refers to 16mm roll film in 3M type cartridges.
MP Refers to paper printed one side, unpunched quality shall be suitable
for further reproduction or microfilming.
MT MAGNETIC TAPE
P1 PRINTED ONE SIDE. Refers to manuals in paper with print on one side of
the sheets only.
P2 PRINTED BOTH SIDES. Refers to manuals with print on both sides of the
sheets.
SMF SILVER MASTER FILM. Refers to thick diazo film suitable for further
reproduction.
TYPE
C CUSTOMIZED. Refers to manuals which are customized to specific MSNs.
E ENVELOPE. Refers to manuals which are not customized.
P PRELIMINARY. Refers to preliminary data or manuals which may consist
of:
-either one time issue not maintained by revision service, or
-preliminary issues maintained by revision service until final manual
or data delivery, or
-supply of best available data under final format with progressive
completion through revision service.
Exh. H - 10
<PAGE> 160
DELIVERY
Manual delivery is expressed either as the number of days prior to delivery of
the first Aircraft or as nil (0), which designates the date of delivery of the
first Aircraft.
It is agreed that the number of days indicated will be rounded up to the next
regular revision release date.
Quantity reflects the number of revision or full manual whenever appropriate,
which shall be provided to the Buyer.
MANUALS AVAILABLE (headlines)
1 - ENGINEERING DOCUMENTS
2 - MAINTENANCE & ASSOCIATED MANUALS
3 - MISCELLANEOUS PUBLICATIONS
4 - OPERATIONAL MANUALS AND DATA
5 - OVERHAUL DATA
6 - STRUCTURAL MANUALS
Exh. H - 11
<PAGE> 161
<TABLE>
<S> <C> <C> <C> <C>
MANUALS AVAILABLE {CONFIDENTIAL
(detailed) Abbr MATERIAL Rev Deliv.
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
1. ENGINEERING DOCUMENTS
+(1) Installation and Assembly IAD (2) 0
Drawings
+ Parts Usage (Effectivity) PU {CONFIDENTIAL (2) 0
MATERIAL
+ Schedule (Drawing S OMITTED AND (2) 0
Nomenclature) FILED
+ Drawing Number Index DNI SEPARATELY (2) 0
+ Process and Material PMS WITH THE AN 0
Specification SECURITIES AND AN 0
+ Standards Manual SM EXCHANGE AN 0
+ Electrical Load Analysis ELA COMMISSION AN 0
Stress Data and Analysis(3) PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
</TABLE>
- ------------------
(1) Plus (+) sign indicates a combined A319/A320/A321 (if applicable)
Technical Publication.
(2) Revision service for the manufacture drawings is restricted to
cover the Aircraft configuration at delivery.
(3) The Seller will provide, after the date hereof, an index of
available stress data for the Aircraft. The Seller will provide the Buyer stress
data on a case-by-case basis upon the Buyer's request. Upon receipt of the
Buyer's request, the Seller will immediately make available the requested stress
data through its design office.
Exh. H - 12
<PAGE> 162
<TABLE>
<S> <C> <C> <C> <C>
MANUALS AVAILABLE {CONFIDENTIAL
(detailed) Abbr MATERIAL Rev Deliv.
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
2. MAINTENANCE & ASSOCIATED MANUALS
+ APU Build-up Manual ABM AN 90
+ Aircraft Maintenance Manual AMM 4 90
4 90
4 90
+ Aircraft Schematics Manual ASM {CONFIDENTIAL 4 90
MATERIAL 4 90
OMITTED AND 4 90
FILED 4 90
+ Aircraft Wiring Manual AWM SEPARATELY 4 90
WITH THE 4 90
SECURITIES AND 4 90
EXCHANGE 4 90
+ Aircraft Wiring Lists AWL COMMISSION 4 90
PURSUANT TO A 4 90
REQUEST FOR 4 90
CONFIDENTIAL 4 90
+ Consumable Material List CML TREATMENT} AN 90
+ Component Location Manual CLM 4 90
+ Duct Repair Manual DRM AN 90
+ Fuel Pipe Repair Manual FPRM AN 90
</TABLE>
Exh. H - 13
<PAGE> 163
<TABLE>
<S> <C> <C> <C> <C>
MANUALS AVAILABLE {CONFIDENTIAL
(detailed) Abbr MATERIAL Rev Deliv.
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
+ Illustrated Parts Catalog IPC 4 90
(Airframe) 4 90
4 90
+ Illustrated Parts Catalog PIPC {CONFIDENTIAL 4 90
(Power Plant)(5) MATERIAL 4 90
OMITTED AND 4 90
+ Illustrated Tool and Equipment TEM FILED AN 360
Manual SEPARATELY
Maintenance Facility Planning MF WITH THE AN 90
+ Maintenance Planning MPD SECURITIES AND AN 360
Document EXCHANGE
+ Power Plant Build-up Manual(5) PPBM COMMISSION AN 90
+ Support Equipment Summary SES PURSUANT TO A AN 360
REQUEST FOR AN 360
CONFIDENTIAL AN 360
+ Tool and Equipment Drawings TD TREATMENT} AN 360
+ Tool and Equipment Index TEI AN 360
</TABLE>
- ------------------
(5) Supplied by the Propulsion Systems Manufacturer
(5) Supplied by the Propulsion Systems manufacturer
Exh. H - 14
<PAGE> 164
<TABLE>
<S> <C> <C> <C> <C>
MANUALS AVAILABLE {CONFIDENTIAL
(detailed) Abbr MATERIAL Rev Deliv.
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
+ Trouble Shooting Manual TSM {CONFIDENTIAL 4 90
MATERIAL 4 90
OMITTED AND 4 90
FILED 4 90
SEPARATELY
WITH THE
+ Aircraft Documentation ADRES SECURITIES AND 4
Retrieval System EXCHANGE
+ Computer Assisted Aircraft CAATS COMMISSION 4
Troubleshooting PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
3. MISCELLANEOUS PUBLICATIONS
Airplane Characteristics for AC {CONFIDENTIAL
Airport Planning MATERIAL
OMITTED AND
FILED
SEPARATELY AN 360
Aircraft Recovery Manual ARM WITH THE AN 90
SECURITIES AND AN 90
EXCHANGE AN 90
COMMISSION AN 90
Crash Crew Chart CCC PURSUANT TO A AN 180
+ Guidelines for Customer GCOC REQUEST FOR AN 0
Originated Changes CONFIDENTIAL
+ List of Radioactive and LRE TREATMENT} AN 90
Hazardous Elements
</TABLE>
Exh. H - 15
<PAGE> 165
<TABLE>
<S> <C> <C> <C> <C>
MANUALS AVAILABLE {CONFIDENTIAL
(detailed) Abbr MATERIAL Rev Deliv.
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
+ List of Applicable Publications LAP {CONFIDENTIAL 4 90
MATERIAL
+ Livestock Transportation LTM OMITTED AND AN 90
Manual FILED
+ Service Bulletin SB SEPARATELY AN 0
WITH THE AN 0
SECURITIES AND AN 0
+ Service Bulletin Index SBI EXCHANGE AN 90
+ Service Information Letters SIL COMMISSION AN 0
+ Technical Publications TPCI PURSUANT TO A AN
Combined Index REQUEST FOR
+ Transportability Manual TM CONFIDENTIAL AN 90
Supplier Product Support SPSA TREATMENT} AN 360
Agreements (SPSA)
Vendor Information Manual VIM AN 360
+ Vendor Information Manual VIM\ AN 360
GSE GSE
4. OPERATIONAL MANUALS AND DATA
</TABLE>
Exh. H - 16
<PAGE> 166
<TABLE>
<S> <C> <C> <C> <C>
MANUALS AVAILABLE {CONFIDENTIAL
(detailed) Abbr MATERIAL Rev Deliv.
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
+ Check CL/QRH {CONFIDENTIAL AN 90
List/Abnormal/Emergency/ MATERIAL
Quick Reference Handbook OMITTED AND
FILED AN 90
+ Flight Crew Operating Manual(6) FCOM SEPARATELY AN 0
Flight Manual FM WITH THE AN 90
Master Minimum Equipment MMEL SECURITIES AND AN 90
List EXCHANGE AN 90
+ Performance Engineering PEP COMMISSION
Program PURSUANT TO A AN 90
+ Performance Program Manual PPM REQUEST FOR AN 0
Weight and Balance Manual WBM CONFIDENTIAL AN 0
TREATMENT}
5 OVERHAUL DATA
</TABLE>
- ------------------
(6) CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
Exh. H - 17
<PAGE> 167
<TABLE>
<S> <C> <C> <C> <C>
MANUALS AVAILABLE {CONFIDENTIAL
(detailed) Abbr MATERIAL Rev Deliv.
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
Component Documentation CDS AN 180
Status {CONFIDENTIAL
MATERIAL
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
+ Component Evolution List(7) CEL AN
+ Cable Fabrication Manual CFM AN 90
+ Component Maintenance CMMM AN 180
Manual Airframe
Manufacturer(8)
Component Maintenance CMMV AN 180
Manual Vendor
</TABLE>
- ------------------
(7) Optional - Delivered as follow-on for CDS.
(8) The Buyer will receive one generic preliminary copy prior to
delivery of the first Aircraft.
Exh. H - 18
<PAGE> 168
<TABLE>
<S> <C> <C> <C> <C>
MANUALS AVAILABLE {CONFIDENTIAL
(detailed) Abbr MATERIAL Rev Deliv.
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
6 STRUCTURAL MANUALS
+ Nondestructive Testing Manual NTM {CONFIDENTIAL 4 90
MATERIAL
OMITTED AND
FILED
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
+ Structural Repair Manual SRM 4 90
4 90
4 90
</TABLE>
Exh. H/App. A - 19
<PAGE> 169
APPENDIX A TO
EXHIBIT H
LICENSE FOR USE
OF THE PERFORMANCE ENGINEERING PROGRAMS (PEP)
1. GRANT
The Seller grants to the Buyer the right to use the Performance
Engineering Programs (PEP) in machine readable form on a single
computer network during the term of this license agreement (the
"License Agreement").
Use of the PEP in readable form shall be limited to one (1) copy.
However, the Buyer may make duplicate copies, provided that they are
either contained in the same network as the original copy, or produced
for checkpoint and restart purposes or made with the consent of the
Seller for a specific need.
2. MERGING
The PEP may be used and adapted in machine readable form for the
purpose of merging it into other program material of the Buyer, but, on
termination of this License Agreement, the Buyer shall remove the PEP
from the other program material with which it has been merged.
The Buyer agrees to reproduce the copyright and other notices as they
appear on or within the original media on any copies that the Buyer
makes of the PEP.
3. PERSONAL LICENSE
The above described license is personal to the Buyer and its computer
service contractors, nontransferable and nonexclusive.
4. INSTALLATION
It is the Buyer's responsibility to install the PEP and to perform any
mergings and checks. The Seller shall, however, assist the Buyer's
operations engineers in the initial phase following the delivery of the
PEP until such personnel reach the familiarization level required to
make inputs and correlate outputs.
Exh. H/App. A - 1
<PAGE> 170
5. PROPRIETARY RIGHTS AND NONDISCLOSURE
5.1 The PEP and the copyright and other proprietary rights of whatever
nature in the PEP are and shall remain with the Seller. The PEP and its
contents are designated as confidential.
5.2 The Buyer undertakes not to disclose the PEP, parts thereof or its
contents to any third party except the Buyer's computer service
provider, without the prior written consent of the Seller. Insofar as
it is necessary to disclose aspects of the PEP to employees, such
disclosure is permitted only for the purpose for which the PEP is
supplied and only to the employee who needs to know the same.
6. CONDITIONS OF USE
6.1 The Seller does not warrant that the PEP shall contain no errors.
However, should the PEP be found to contain any error at delivery of
the PEP, the Buyer shall notify the Seller promptly thereof and the
Seller shall take all proper steps to correct the same at its own
expense.
6.2 The Buyer shall ensure that the PEP is correctly used in appropriate
machines as indicated in the Performance Programs Manual (PPM) and that
staff are properly trained to use the same, to trace and correct
running faults, to restart and recover after fault and to operate
suitable checks for accuracy of input and output.
6.3 It is understood that the PPM is the user's guide of the PEP and that
the Buyer shall undertake to use the PEP in accordance with the PPM.
6.4 The PEP is supplied under the express condition that the Seller shall
have no liability in contract or in tort arising from or in connection
with the Buyer's use of or inability to use the PEP.
7. DURATION
Subject to the Buyer's compliance with the terms of this License
Agreement, the rights under this License Agreement shall be granted to
the Buyer for as long as the Buyer operates an Aircraft to which the
PEP refers.
Exh. H/App. A - 2
<PAGE> 171
APPENDIX B TO
EXHIBIT H
LICENSE FOR USE OF CD-ROM
1. GRANT
The Seller grants the Buyer the right to use the Aircraft Documentation
Retrieval System (ADRES) and/or the Computer Assisted Aircraft
Troubleshooting (CAATS) on CD-ROM for the term of this License. Use of
ADRES and/or CAATS shall be limited to the number of copies agreed
between the parties.
For clarification, it is hereby stated that the Power Plant IPC is not
part of the electronic IPC and is only available on other media (paper
of film).
2. TERM
The rights under the License shall be granted from the date of first
delivery of ADRES and/or CAATS to the end of the current year. The
grant shall be renewed automatically at the beginning of each calendar
year for another year, unless either the Buyer or the Seller gives
written notice to the other party three (3) months prior to the end of
the License of its intention to terminate the grant. Within thirty (30)
days of termination, the Buyer shall return ADRES and/or CAATS and all
copies thereof to the Seller.
3. REVISION SERVICE
The Seller shall provide revision service for ADRES and/or CAATS during
the term. The revision service shall be based on the revision service
which the Seller provides for the documentation in paper or film
format.
ADRES and/or CAATS CD-ROM shall be revised concurrently with the paper
and film deliveries. However, temporary revisions are not currently
provided in digital data format and are only available in paper format.
4. PERSONAL LICENSE
The License is personal to the Buyer, non-transferable and
non-exclusive. The Buyer shall not permit any third party to use ADRES
and/or CAATS, nor shall it transfer or sub-license ADRES and/or CAATS
to any third party, without prior written consent from the Seller.
5. INSTALLATION
The Seller shall provide the list of hardware on which ADRES and/or
CAATS shall be installed. The Buyer shall be responsible for procuring
such hardware and installing ADRES and/or CAATS.
Exh. H/App. B - 1
<PAGE> 172
6. PROPRIETARY RIGHTS
ADRES and/or CAATS are proprietary to the Seller and the copyright and
all other proprietary rights in ADRES and/or CAATS are and shall remain
the property of the Seller.
7. COPYRIGHT INDEMNITY
The Seller shall defend and indemnify the Buyer against any claim that
the normal use of ADRES and/or CAATS infringes the intellectual
property rights of any third party, provided that the Buyer:
7.1 immediately notifies the Seller of any such claim;
7.2 makes no admission or settlement of any claim;
7.3 allows the Seller to have sole control of all negotiations for its
settlement;
7.4 gives the Seller all reasonable assistance in connection therewith.
8. CONFIDENTIALITY
ADRES and/or CAATS and their contents are designated as confidential.
The Buyer undertakes not to disclose ADRES and/or CAATS or parts
thereof to any third party without the prior written consent of the
Seller. In so far as it is necessary to disclose aspects of ADRES
and/or CAATS to the employees, such disclosure is permitted solely for
the purpose for which ADRES and/or CAATS are supplied and only to those
employees who need to know the same.
9. CONDITIONS OF USE
The Buyer shall not make any copies of ADRES and/or CAATS, except for
installation purposes.
9.1 The Seller does not warrant that the operation of ADRES and/or CAATS
shall be error free. In the event of an error occurring within thirty
(30) days of delivery, the sole and exclusive liability of the Seller
shall be, at its expense, to correct ADRES and/or CAATS in the
following revision.
9.3 THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND REMEDIES
OF THE BUYER SET FORTH IN THIS LICENSE ARE EXCLUSIVE AND IN
SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES
ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND
OTHER RIGHTS, CLAIMS OR REMEDIES OF THE BUYER AGAINST THE SELLER,
EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY
NON-CONFORMITY OR DEFECT IN THE ADRES AND/OR CAATS DELIVERED UNDER THIS
LICENSE.
Exh. H/App. B - 2
<PAGE> 173
10. TRAINING
In addition to the user guide supplied with ADRES and/or CAATS,
training and other assistance may be provided upon the Buyer's request
on conditions to be mutually agreed.
11. REPLACEMENT OF PRODUCT
For clarification purposes it is hereby expressly stated that ADRES
and/or CAATS shall be offered for a limited time period, not exceeding
the term of this License. In the event that the Seller should offer a
replacement product, the conditions for using such product shall be
subject to a separate agreement.
Exh. H/App. B - 3
<PAGE> 174
LETTER AGREEMENT NO. 1
As of September 12, 1997
America West Airlines, Inc.
Phoenix Sky Harbor International Airport
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: SPARE PARTS PROCUREMENT
Dear Ladies and Gentlemen,
America West Airlines, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A319/A320 Purchase Agreement dated as of
even date herewith (the "Agreement"), which covers, among other matters, the
sale by the Seller and the purchase by the Buyer of certain Aircraft described
in the specifications annexed to the Agreement. In addition, the Buyer operates
in commercial air transport service certain other A320 aircraft not acquired
under the Agreement. For the purposes of this Letter Agreement No. 1 only, the
term Aircraft will be defined to mean any A320 aircraft, A319 aircraft and/or
A321 aircraft operated in commercial air transport service by the Buyer. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No. 1
(the "Letter Agreement") certain additional terms and conditions regarding spare
parts procurement for the Aircraft. Capitalized terms used herein and not
otherwise defined in this Letter Agreement will have the meanings assigned
thereto in the Agreement. The terms "herein," "hereof" and "hereunder" and words
of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will constitute an
integral, nonseverable part of the Agreement, except that if the Agreement and
this Letter Agreement have specific provisions which are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
<PAGE> 175
CONTENTS
<TABLE>
<CAPTION>
CLAUSES PAGES
- ------- -----
<S> <C> <C>
1 - GENERAL 3
2 - INITIAL PROVISIONING 5
3 - STORES 8
4 - DELIVERY 8
5 - PRICE 10
6 - PAYMENT PROCEDURES AND CONDITIONS 11
7 - TITLE 13
8 - PACKAGING 13
9 - DATA RETRIEVAL 13
10 - BUY-BACK 13
11 - WARRANTIES 14
12 - LEASING 18
13 - TERMINATION 18
14 - ASSIGNMENT 18
</TABLE>
LA 1 - 2
<PAGE> 176
1. GENERAL
1.1 Material
This Letter Agreement covers the terms and conditions for the services
offered by the Seller to the Buyer ("Material Support") in respect of
Aircraft spare parts itemized below in Subparagraphs 1.1(a) through
1.1(f) ("Material").
The Material will comprise:
(a) Seller Parts (industrial proprietary components, equipment,
accessories or parts of the Manufacturer manufactured to the
detailed design of the Manufacturer or a subcontractor of it
and bearing official part numbers of the Manufacturer or
material for which the Seller has exclusive sales rights in
the United States).
(b) Vendor Parts classified as rotable line replacement units.
(c) Vendor Parts classified as expendable line maintenance parts.
(d) Ground support equipment (GSE) and special-to-type tools.
(e) Hardware and standard material.
(f) Consumables and raw material as a package.
Rotable line replacement units specified above in Subparagraphs 1.1(a)
and 1.1(b) that have less than fifty (50) flight-hours are considered
new.
Material covered under Subparagraphs 1.1(e) and 1.1(f) above will be
supplied as part of the Initial Provisioning of Material, only if at
least ninety percent (90%) of Material covered under Subparagraph
1.1(b) above is bought from the Seller. Initial Provisioning will be
defined as Material purchased by the Buyer during the Initial
Provisioning Period, as defined in Paragraph 2 ("Initial
Provisioning").
1.2 Scope of Material Support
1.2.1 The Material Support to be provided by the Seller under the conditions
hereunder covers all Material purchased by the Buyer from the Seller
during the Initial Provisioning Period (defined below in Paragraph 2),
and all items in Subparagraphs 1.1(a) through 1.1(d) for purchases
additional to the Initial Provisioning.
1.2.2 Propulsion Systems, including associated parts and spare parts
therefore, are not covered under this Letter Agreement, and will be
subject to direct negotiations between the Buyer and the Propulsion
Systems manufacturer. The Seller will use its reasonable efforts to
assist the Buyer in case of any difficulties with respect to the
availability of Propulsion Systems and associated parts, and will
promptly intervene on the Buyer's behalf if so requested by the Buyer.
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<PAGE> 177
1.2.3 During a period commencing on the date hereof and continuing as long as
at least five (5) aircraft of the type of the Aircraft are operated by
airlines in commercial air transport service (the "Term"), the Seller
will maintain or cause to be maintained such stock of Material as the
Seller deems reasonable and will furnish at the prices specified
herein, Material adequate to meet the Buyer's needs for repairs and
replacements on the Aircraft. The Buyer reserves the right to inform
the Seller of its reasonable requirements with respect to such stock of
Material which the Seller shall endeavor to accommodate. Such Material
will be sold and delivered in accordance with Paragraphs 4 and 5 of
this Letter Agreement, upon receipt of the Buyer's orders.
The Seller will use its reasonable efforts to obtain a similar service
from all Vendors of parts that are originally installed on the Aircraft
and not manufactured by the Seller.
1.3 Agreements of the Buyer
The Buyer agrees to purchase from the Seller, or another source in
compliance with FAA requirements, the Seller Parts required for the
Buyer's own needs during the Term, and in addition, the Buyer may
purchase Seller Parts of other airlines operating aircraft of the type
of the Aircraft, or may purchase items equivalent to Seller Parts from
the airlines or from distributors or dealers, on the condition that the
Seller Parts have been designed and manufactured by, or obtained from,
the Seller or another source, and the Buyer may also exercise its
rights under Subparagraph 1.4 of this Letter Agreement.
1.4 Manufacture of Seller Parts by the Buyer
1.4.1 The Buyer may manufacture or have manufactured for its own use, without
paying any license fee to the Seller, Seller Parts in the following
cases:
(a) after expiration of the Term, if at such time the Seller is
out of stock of a required Seller Part;
(b) at any time, to the extent Seller Parts are needed to effect
AOG repairs on any Aircraft and are not available from the
Seller within a leadtime shorter than or equal to the time in
which the Buyer can provide the Seller Parts, provided the
Buyer will not sell or lease such Seller Parts unless they are
assembled in an Aircraft that is sold or leased;
(c) in the event that the Seller fails to fulfill its obligations
with respect to any Seller Parts pursuant to Subparagraph 1.2
above within a reasonable period after written notice thereof
from the Buyer; and
(d) when, with respect to certain Seller Parts, the Seller has
granted, under the Illustrated Parts Catalog supplied under
the Agreement, the right of local manufacture of Seller Parts.
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<PAGE> 178
1.4.2 The rights granted to the Buyer in Subparagraph 1.4.1 will not in any
way be construed as a license, nor will they in any way obligate the
Buyer to pay any license fee, royalty or obligation whatsoever, nor
will they in any way be construed to affect the rights of third
parties.
1.4.3 The Seller will provide the Buyer with all technical data (and coding)
reasonably necessary to manufacture Seller Parts, in the event the
Buyer is entitled to do so pursuant to Subparagraph 1.4.1 of this
Letter Agreement. The proprietary rights to such technical data will be
subject to the terms of Subclause 14.11.1 of the Agreement.
1.5 Language
Technical and trade items used but not defined herein will be defined
as generally accepted in the aircraft manufacturing industry.
2. INITIAL PROVISIONING
The period up to and expiring on the ninetieth (90th) day after
delivery of the last Aircraft subject to firm order under the Agreement
will hereinafter be referred to as the Initial Provisioning Period (the
"Initial Provisioning Period").
2.1 Seller-Supplied Data
The Seller will prepare and supply to the Buyer the following
documents:
2.1.1 Initial Provisioning Data
The Seller will provide the Buyer Initial Provisioning Data provided
for in Chapter 2B of ATA 200 Revision 23 (or as otherwise mutually
agreed) ("Initial Provisioning Data") in a form, format and within a
time period to be mutually agreed upon.
A revision service will be effected every ninety (90) days, up to the
end of the Initial Provisioning Period, or until the configuration of
the Buyer's delivered Aircraft is included.
In any event, the Seller will ensure that Initial Provisioning Data are
released to the Buyer in time to allow the necessary evaluation time by
the Buyer and the on-time delivery of ordered Material.
2.1.2 Supplementary Data
The Seller will provide the Buyer with Local Manufacture Tables
(X-File), as part of the Illustrated Parts Catalog (Additional
Cross-Reference Tables), which will be a part of the Initial
Provisioning Data package.
LA 1 - 5
<PAGE> 179
2.2 Vendor-Supplied Data
2.2.1 General
Vendors will prepare and issue T-files in the English language for
those Vendor Components as defined in Subparagraph 3.3 of Letter
Agreement No. 6, for which the Buyer has elected to receive data, and
the Seller will ensure that the Vendors take actions as reasonably
practicable.
The data (initial issue and revisions) will be transmitted to the Buyer
through the Seller. The Seller will review the compliance of such data
with relevant ATA requirements, but will not be responsible for the
substance of such data, other than any errors or omissions attributable
to the Seller's compilation of the data. Such data should be adequate
to enable the Buyer to undertake in-house repair and/or overhaul of
such Vendor Components.
In any event, the Seller will supply Vendor Initial Provisioning Data
to the Buyer in time to allow the necessary evaluations by the Buyer
and on-time deliveries.
2.2.2 Initial Provisioning Data
Initial Provisioning Data for Vendor products provided for in Chapter
2B of ATA 200 Revision 23 will be furnished as mutually agreed upon
during a Preprovisioning Meeting (defined below), with revision service
assured up to the end of the Initial Provisioning Period, or until it
reflects the configuration of the delivered Aircraft.
2.3 Preprovisioning Meeting
2.3.1 The Seller will organize a meeting to formulate an acceptable schedule
and working procedure to accomplish the Initial Provisioning of
Material (the "Preprovisioning Meeting").
2.3.2 The date and location of the Preprovisioning Meeting will be mutually
agreed upon, but it will take place within thirty (30) days of the date
hereof.
2.4 Initial Provisioning Training
The Seller will furnish, at the Buyer's request, at a location to be
agreed, and at no charge, training courses related to the Seller's
provisioning documents, purchase order administration and handling.
LA 1 - 6
<PAGE> 180
2.5 Initial Provisioning Conference
At the Buyer's request, the Seller will organize an Initial
Provisioning Conference at a location to be agreed, that will include
Vendor participation, as agreed upon during the Preprovisioning Meeting
(the "Initial Provisioning Conference"). Pursuant to the Initial
Provisioning Conference, and based on Initial Provisioning Data and
information provided by the Buyer, the Seller will produce a
recommended quantity of Material to be purchased by the Buyer during
the Initial Provisioning Period (the "Initial Provisioning
Recommendation"). The level of coverage and protection for Material
ordered by the Buyer during the Initial Provisioning Period will be
mutually agreed at the Initial Provisioning Conference.
2.6 Initial Provisioning Data Compliance
2.6.1 Initial Provisioning Data generated by the Seller and supplied to the
Buyer will comply with the latest Specification of the Aircraft to
which such data relate, and then available, as known three (3) months
before the data is issued. The data will be sufficient to enable the
Buyer to order Material conforming to its Aircraft as required for
maintenance and overhaul.
This provision will not cover parts embodying those Buyer modifications
that are unknown to the Seller, and parts embodying modifications
neither agreed to nor designed by the Seller.
2.6.2 During the Initial Provisioning Period, Material will conform with the
latest Specification then available, and with the Initial Provisioning
Data transmitted by the Seller. Should the Seller default in this
obligation, it will immediately replace such parts and/or authorize
return shipment at no transportation cost to the Buyer. The Buyer will
minimize such cost, in particular by using its own airfreight system
for transportation at no charge to the Seller whenever practicable. The
Seller, in addition, will cause Vendors to provide a similar service
for their items.
2.7 Delivery of Initial Provisioning Material
2.7.1 To support the operation of the Aircraft, the Seller will deliver
Initial Provisioning Material in Subparagraph 1.1(a) of this Letter
Agreement against the Buyer's orders from the Seller and according to a
schedule to be determined at the Initial Provisioning Conference.
2.7.2 The Buyer may cancel or modify Initial Provisioning orders placed with
the Seller with no cancellation charge as follows:
(a) "Long Lead-Time Material" (leadtime exceeding twelve (12)
months) not later than six (6) months before scheduled
delivery of the Material,
LA 1 - 7
<PAGE> 181
(b) normal leadtime Material not later than three (3) months
before scheduled delivery of the Material, provided however,
that for Material that has three (3) months leadtime or less,
the Buyer's cancellation or modification right shall be equal
to the ordering leadtime for such Material augmented by two
(2) weeks.
(c) Material not recommended by the Seller in the Initial
Provisioning Data and Material in Subparagraphs 1.1(b) through
1.1(f) no later than the quoted leadtime before scheduled
delivery of the Material.
2.7.3 Should the Buyer cancel or modify any orders for Material within
leadtimes that are less than those defined above in Subparagraph 2.7.2,
the Seller shall have no liability for the cancellation or
modification, and the Buyer shall reimburse the Seller for any direct
cost incurred in connection therewith.
3. STORES
3.1 ASCO Spares Center
The Seller has established and will maintain or cause to be maintained,
as long as at least five (5) aircraft of the type of the Aircraft are
operated by US airlines in commercial air transport service, a US
spares distribution facility adjacent to Dulles International Airport,
Washington, DC, known as the ASCO Spares Center - Washington ("ASCO
Spares Center"). The ASCO Spares Center will be operated twenty-four
(24) hours/day, seven (7) days/week, all year for the handling of AOG
and critical orders for Seller Parts.
3.2 Material Support Center
The Manufacturer has set up and will maintain or cause to be maintained
during the Term a store of Seller Parts near Hamburg, Germany ("MSC").
MSC will be operated twenty-four (24) hours/day, seven (7) days/week,
all year.
3.3 Other Points of Shipment
The Seller reserves the right to effect deliveries from distribution
centers other than the ASCO Spares Center (provided the Seller shall
use the ASCO Spares Center in priority) or MSC and from any of the
production facilities of the Associated Contractors.
4. DELIVERY
4.1 General
The Buyer's purchase orders will be administered in accordance with ATA
200 Chapter 6 specification or Spec 2000.
The provisions of this Paragraph 4 do not apply to Initial Provisioning
Data and Initial Provisioning Material unless specifically set forth to
the contrary in this Letter Agreement.
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<PAGE> 182
4.2 Leadtimes
4.2.1 The leadtimes are in accordance with the definition in the "World
Airline and Suppliers Guide" (January 1996 edition).
4.2.2 Material will be dispatched within the leadtimes quoted in the
published Seller's price catalog for Material described in Subparagraph
1.1(a) or the schedule determined at the Initial Provisioning
Conference, if different, and within the Vendor's or supplier's
leadtime augmented by the Seller's own order and delivery processing
time (such in-house processing time not to exceed fifteen (15) days)
for Material described in Subparagraphs 1.1(b) through 1.1(d).
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
4.2.3 Expedite Service
The Seller operates a twenty-four (24) hour-a-day, seven (7) day-a-week
expedite service to supply the relevant Seller Parts available in the
Seller's stock, workshops and assembly line, including high-cost long
leadtime items, to the international airport nearest the location of
such items (the "Expedite Service").
The Expedite Service is operated in accordance with the "World Airline
and Suppliers Guide." Accordingly, the Seller will notify the Buyer of
the action taken to effect the Expedite Service as follows:
(a) four (4) hours after receipt of an AOG order,
(b) twenty-four (24) hours after receipt of a critical order
(imminent AOG or work stoppage),
(c) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} after receipt of an expedite order
from the Buyer (nil stock at the Buyer's for no-go items).
The Seller and its subcontractors will deliver Seller Parts requested
on an expedite basis against normal orders previously placed by the
Buyer or upon requests by telephone or telex by the Buyer's
representatives, such requests to be confirmed by the Buyer's
subsequent written order for such Seller Parts within a reasonable
time.
4.3 Excusable Delay
Subclause 10.1 of the Agreement will apply to the Material Support as
defined in Paragraph 1 of this Letter Agreement.
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<PAGE> 183
4.4 Shortages, Overshipments, Nonconformance in Orders
4.4.1 Not later than thirty (30) days after receipt of Material delivered
pursuant to a purchase order, the Buyer will advise the Seller of any
alleged shortages or overshipments with respect to such order and of
all nonconformance to specification of parts in such order inspected by
the Buyer.
In the event that the Buyer has not reported such alleged shortages,
overshipments or nonconformance within the above defined period, the
Buyer will be deemed to have accepted the deliveries.
4.4.2 In the event that the Buyer reports overshipments or nonconformance to
the specifications within the period defined above in Subparagraph
4.4.1, the Seller will either replace the Material concerned or credit
the Buyer for Material returned. In such case, transportation charges
will be borne by the Seller.
The Buyer will endeavor to minimize such costs, particularly by using
its own airfreight system for transportation at no charge to the
Seller.
4.5 Cessation of Deliveries
The Seller reserves the right to stop or otherwise suspend deliveries
if the Buyer fails to meet its obligations under Paragraph 6 of this
Letter Agreement.
5. PRICE
5.1 Point of Shipment
The Material prices will be FCA (Free Carrier as defined in publication
No. 460 of the International Chamber of Commerce, published in April
1990) ASCO Spares Center.
5.2 Validity of Prices
5.2.1 The prices are the published prices in effect on the date of receipt of
the order (subject to reasonable quantities and delivery time) and will
be expressed in the original manufacturer's currencies with the
exception of Seller Parts, which are exclusively expressed in Dollars.
Payment will be made by the Buyer to the Seller in Dollars as set forth
below in Subparagraph 6.1.
5.2.2 Prices of Seller Parts will be in accordance with the then current
Seller's Spare Parts Price List. Prices will be firm for each calendar
year. The Seller, however, reserves the right to revise the prices of
Seller Parts during the course of the calendar year in the event of a
significant error in estimation or expression of any price.
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<PAGE> 184
In the event of a significant revision in manufacturing costs or a
significant revision in the purchase price to the Manufacturer of
Seller Parts (including significant variation in exchange rate) during
any particular calendar year, the Seller will notify the Buyer of such
revisions, whereupon the Buyer may, within such quantities of affected
Seller Parts still available for sale at the former prices, order such
quantities of the Seller Parts reasonably required to maintain its
customary stock levels of such Seller Parts for the remainder of the
calendar year in effect at that time provided the Seller is not thereby
required to deplete the Seller's AOG inventory level unless such Seller
Parts are required by the Buyer on an AOG basis. In the event the
Seller is out of stock of such Seller Parts at the former prices, the
Seller will, upon request by the Buyer, reasonably substantiate the
price revisions affecting such Seller Parts.
5.2.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}
5.2.4 Prices of Material as defined above in Subparagraphs 1.1(b) through
1.1(d) will be the valid list prices of the Vendor or supplier
augmented by the Seller's handling charge. The percentage of the
handling charge will vary with the Material's value and will be
determined item by item.
5.2.5 The Seller warrants that, should the Buyer purchase from the Seller one
hundred percent (100%) of the recommended Initial Provisioning of
Material defined above in Subparagraphs 1.1(b) through 1.1(d), the
average handling charge on the total package will not exceed fifteen
percent (15%). This average handling charge will be increased to
eighteen percent (18%) in the event that all orders have not been
placed nine (9) months prior to delivery of the first Aircraft.
5.2.6 Prices of Material as defined above in Subparagraphs 1.1(e) and 1.1(f)
will be the Seller's purchase prices augmented by a variable percentage
of handling charge.
6. PAYMENT PROCEDURES AND CONDITIONS
6.1 Currency
Payment will be made in immediately available funds in Dollars or in
the event the Buyer elects to make a payment in the currency in which
particular Material is expressed, in such currency. In case of payment
for Material the price of which is expressed in currency other than
Dollars, the exchange rate valid on the day of actual money transfer
will be applied for conversion to Dollars.
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<PAGE> 185
6.2 Time and Means of Payment
Payment will be made by the Buyer to the Seller within thirty (30) days
from the date of invoice. It is also agreed that the Seller will
provide the Buyer with a credit equal to one percent (1%) of each
payment, provided such payment is made by electronic wire transfer
within ten (10) days from the date of invoice.
6.3 Bank Accounts
The Buyer will make all payments hereunder in full without setoff,
counterclaim, deduction or withholding of any kind to the accounts
listed below, unless otherwise directed by the Seller:
(a) For wire transfer, in favor of Airbus Service Company:
CoreStates Bank N.A.
Account Number 14096-31312
ABA Number 031000011
(b) For direct deposit (lockbox), in favor of Airbus Service
Company:
Airbus Service Company
PO Box 8500-4555
Philadelphia, PA 19178-4555
6.4 Taxes, Duties and Imposts
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}, the Buyer's obligation to make payments to the Seller
hereunder will not be affected by and will be determined without regard
to any setoff, counterclaim, recoupment, defense or other right that
the Buyer may have against the Seller or any other person and all such
payments will be made without deduction or withholding of any kind. The
Buyer will ensure that the sums received by the Seller under this
Agreement will be equal to the full amounts expressed to be due the
Seller hereunder, without deduction or withholding on account of and
free from any and all taxes, imposts, duties or similar charges
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}. If the Buyer is compelled by law to make any such deduction
or withholding the Buyer will pay such additional amounts as may be
necessary so that the net amount received by the Seller after such
deduction or withholding will equal the amounts that would have been
received in the absence of such deduction or withholding
LA 1 - 12
<PAGE> 186
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}. The Seller will perform the covenant set forth in Subclause
4.4.3 of the Agreement with respect to the Material to be delivered
hereunder as if Material were included in that clause.
7. TITLE
[Intentionally left blank]
8. PACKAGING
All Material will be packaged in accordance with ATA 300 Specification,
Category III for consumable/expendable Material and Category II for
rotables. Category I containers will be used if requested by the Buyer
and the difference between Category I and Category II packaging costs
will be paid by the Buyer together with payment for the respective
Material itself.
9. DATA RETRIEVAL
The Buyer undertakes to provide periodically to the Seller, as the
Seller may reasonably request, during the Term, a quantitative list of
the parts used for maintenance and overhaul of the Aircraft. The range
and contents of this list will be established by mutual agreement
between the Seller and the Buyer.
10. BUY-BACK
10.1 Buy-Back of Obsolete Material
The Seller agrees to buy-back unused Seller Parts that may become
obsolete {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} as a result of mandatory modifications required
by the Buyer's or Seller's airworthiness authorities, subject to the
following:
(a) the Seller Parts involved shall be those which the Seller
directs the Buyer to scrap or dispose of and which cannot be
reworked or repaired to satisfy the revised standard;
(b) the Seller shall grant the Buyer a credit equal to the
purchase price paid by the Buyer for any such obsolete parts,
provided the Buyer then has Material on order with the Seller,
such credit being limited to quantities ordered in the Initial
Provisioning Recommendation,{CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT};
LA 1 - 13
<PAGE> 187
(c) the Seller shall use its reasonable efforts to obtain for the
Buyer the same protection from Vendors and will promptly
intervene on the Buyer's behalf if so requested by the Buyer.
10.2 Buy-Back of Surplus Material
10.2.1 The Seller agrees that at any time after {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}, the Buyer shall have
the right to return to the Seller, at a credit of one hundred percent
(100%) of the original purchase price paid by the Buyer, unused and
undamaged Material set forth above in Subparagraphs 1.1(a) and 1.1(b)
originally purchased during the Initial Provisioning Period from the
Seller under the terms hereof, provided (i) if the selected protection
level exceeds ninety-six percent (96%) with a turnaround time of
forty-five (45) days, parts in excess of such levels will not be
covered under the Buy-Back provisions, (ii) Material does not contain
any shelf-life limited components with less than ninety percent (90%)
of their shelf-life remaining when returned to the Seller, and (iii)
that the Material is returned with the Seller's original documentation
(including tags and certificates also showing that the Material has not
been used) to enable the resale of such Material by the Seller.
10.2.2 Notwithstanding the provisions of Subparagraph 10.2.1 above, in the
event that the Buyer elects to procure Material in excess of the
Seller's recommendation specified in Subclause 10.2.1(i) above, the
Buyer shall so notify the Seller in writing, with due reference to this
Paragraph 10. The Seller's agreement in writing is necessary before any
Material in excess of the Seller's recommendation may be considered for
buy-back.
10.2.3 It is expressly understood and agreed that the rights granted to the
Buyer under this Subparagraph 10.2 shall not apply to Material that may
become obsolete at any time or for any reason other than as set forth
in Subparagraph 10.1 above.
10.2.4 Further, it is expressly understood and agreed that all credits
referred to above in Subparagraph 10.1(b) will be provided by the
Seller to the Buyer by means of credit notes to be entered into the
Buyer's account with the Seller for Material,{CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
10.3 All transportation costs for the return of obsolete and surplus
Material under this Paragraph 10, including any applicable insurance
and customs duties or other related expenditures, will be borne by the
Seller, in the case of obsolete Material and by the Buyer, in the case
of surplus Material.
LA 1 - 14
<PAGE> 188
11. WARRANTIES
The Seller in its capacity as "Buyer" under its arrangements with the
Manufacturer has negotiated and obtained the following warranties for
Seller Parts from the Manufacturer, in its capacity as "Seller," with
respect to the Seller Parts, subject to the terms, conditions,
limitations and restrictions all as hereinafter set out. The Seller
hereby assigns to the Buyer, and the Buyer hereby accepts, all of the
rights and obligations of the Seller in its capacity as "Buyer" as
aforesaid under the warranties for Seller Parts delivered to the Buyer
pursuant to this Letter Agreement and the Seller subrogates the Buyer
as to all such rights and obligations in respect of such Seller Parts.
The Seller hereby warrants to the Buyer that it has all the requisite
authority to make the foregoing assignment and effect the foregoing
subrogation to and in favor of the Buyer and that it will not enter
into any amendment of the provisions so assigned or subrogated without
the prior written consent of the Buyer. Capitalized terms utilized in
the following provisions have the meanings assigned thereto in this
Letter Agreement, except that the term "Seller" refers to the
Manufacturer and the term "Buyer" refers to the Seller.
QUOTE
11.1 Seller Parts
Subject to the limitations and conditions as hereinafter provided, the
Seller warrants to the Buyer that all Seller Parts as defined above in
Subparagraph 1.1(a) will at the time of delivery to the Buyer:
(a) be free from defects in material,
(b) be free from defects in workmanship, including, without
limitation, processes of manufacture,
(c) be free from defects in design (including, without limitation,
selection of materials) having regard to the state of the art
at the date of such design.
11.2 Warranty Period
The warranty period for Seller Parts is {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
11.3 Buyer's Remedy and Seller's Obligation
The Buyer's remedy and Seller's obligation and liability under this
Paragraph 11 are limited to the repair, replacement or correction, at
the Seller's expense and option, of any defective Seller Part.
LA 1 - 15
<PAGE> 189
The Seller, at its option, may furnish a credit to the Buyer for the
future purchase of Seller Parts equal to the price at which the Buyer
is then entitled to acquire a replacement for the defective Seller
Part,{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
The provisions of Subclauses 12.1.5, 12.1.6 and 12.1.7 of the Agreement
will, as applicable, also apply to this Paragraph 11.
11.4 Exclusivity of Warranties and General Limitations of Liability
and Duplicate Remedies
The Buyer and the Seller recognize and agree that the Exclusivity of
Warranties and General Limitations of Liability provisions and the
Duplicate Remedies provisions contained in Clause 12 of the Agreement
will also apply to the foregoing warranties provided for in this
Paragraph 11.
UNQUOTE
In consideration of the assignment and subrogation by the Seller under
this Paragraph 11 in favor of the Buyer in respect of the Seller's
rights against and obligations to the Manufacturer under the provisions
quoted above, the Buyer hereby accepts such assignment and subrogation
and agrees to be bound by all of the terms, conditions and limitations
therein contained.
EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS
OF LIABILITY AND DUPLICATE REMEDIES
EXCEPT FOR REMEDIES PROVIDED ELSEWHERE IN THIS LETTER AGREEMENT, THIS
PARAGRAPH 11 (INCLUDING ITS SUBPROVISIONS) SETS FORTH THE EXCLUSIVE
WARRANTIES, EXCLUSIVE LIABILITIES AND EXCLUSIVE OBLIGATIONS OF THE
SELLER, AND THE EXCLUSIVE REMEDIES AVAILABLE TO THE BUYER, WHETHER
UNDER THIS LETTER AGREEMENT OR OTHERWISE, ARISING FROM ANY DEFECT OR
NONCONFORMITY OR PROBLEM OF ANY KIND IN ANY SELLER PART DELIVERED UNDER
THIS LETTER AGREEMENT.
THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES,
OBLIGATIONS, GUARANTEES AND LIABILITIES OF THE SELLER AND ALL OTHER
RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER, WHETHER
EXPRESS OR IMPLIED BY CONTRACT, TORT, OR STATUTORY LAW OR OTHERWISE,
WITH RESPECT TO ANY NONCONFORMITY OR DEFECT OR PROBLEM OF ANY KIND IN
ANY SELLER PART DELIVERED UNDER THIS LETTER AGREEMENT, INCLUDING BUT
NOT LIMITED TO:
LA 1 - 16
<PAGE> 190
(1) ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS
FOR ANY GENERAL OR PARTICULAR PURPOSE;
(2) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE;
(3) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(4) ANY RIGHT, CLAIM OR REMEDY FOR TORT, INCLUDING ACTIONS
FOR NEGLIGENCE, RECKLESSNESS, INTENTIONAL TORTS, IMPLIED
WARRANTY IN TORT AND/OR STRICT LIABILITY;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM
COMMERCIAL CODE, OR ANY OTHER STATE OR FEDERAL STATUTE;
(6) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS
OR STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL,
STATE OR LOCAL STATUTE OR AGENCY;
(7) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED
FOR:
(a) LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED
UNDER THE AGREEMENT;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED
UNDER THE AGREEMENT;
(c) LOSS OF PROFITS AND/OR REVENUES;
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.
THE WARRANTIES PROVIDED BY THIS LETTER AGREEMENT SHALL NOT BE EXTENDED,
ALTERED OR VARIED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY THE SELLER
AND THE BUYER. IN THE EVENT THAT ANY PROVISION OF THIS PARAGRAPH 11
SHOULD FOR ANY REASON BE HELD UNLAWFUL, OR OTHERWISE UNENFORCEABLE, THE
REMAINDER OF THIS PARAGRAPH 11 SHALL REMAIN IN FULL FORCE AND EFFECT.
The remedies provided to the Buyer under this Paragraph 11 as to any
defect in respect of the Material, are mutually exclusive and not
cumulative. The Buyer will be entitled to the remedy that provides the
maximum benefit to it, as the Buyer may elect, pursuant to the terms
and conditions of this Paragraph 11 for any such particular defect for
which
LA 1 - 17
<PAGE> 191
remedies are provided under this Paragraph 11, provided however, that
the Buyer will not be entitled to elect a remedy under one part of this
Paragraph 11 that constitutes a duplication of any remedy elected by it
under any other part hereof for the same defect, and provided further
that the Buyer's rights and remedies herein for nonperformance of any
obligation or liability of the Seller arising under these warranties
will be in monetary damages limited to the right and remedies
specifically set forth in this Paragraph 11.
NEGOTIATED AGREEMENT
The Buyer and the Seller agree that this Paragraph 11 has been the
subject of discussion and negotiation and is fully understood by the
parties, and that the price of the Aircraft and the other mutual
agreements of the parties set forth in the Agreement were arrived at in
consideration of, inter alia, the Exclusivity of Warranties and General
Limitations of Liability provisions and Duplicate Remedies provisions
set forth in Subparagraph 11.4 above.
12. LEASING
[Intentionally Deleted]
13. TERMINATION
Any termination under Clause 10, 11 or 21 of the Agreement or Letter
Agreements thereto will discharge all obligations and liabilities of
the parties hereunder with respect to such undelivered Material,
services, data or other items to be purchased hereunder that are
applicable to those Aircraft as to which the Agreement has been
terminated, provided however, that in the event of a termination under
Clause 10 or 11 of the Agreement, the Buyer shall be allowed to return
unused or undamaged surplus Material to the Seller pursuant to
Subparagraph 10.2 above (without regard to the time periods specified
therein), and relating to those Aircraft as to which the Agreement has
been terminated.
14. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of the
Buyer hereunder will not be assigned or transferred in any manner
without the prior written consent of the Seller, and any attempted
assignment or transfer in contravention of the provisions of this
Paragraph 14 will be void and of no force or effect.
LA 1 - 18
<PAGE> 192
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and return a
copy to the Seller.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Michele Lascaux
Its: Director Contracts
Accepted and Agreed
AMERICA WEST AIRLINES, INC.
By: /s/ S. L. Johnson
Its: Sr. Vice President - Legal Affairs
LA 1 - 19
<PAGE> 193
LETTER AGREEMENT NO. 2
As of September 12, 1997
America West Airlines, Inc.
Phoenix Sky Harbor International Airport
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: AIRCRAFT ORDER FLEXIBILITY
Dear Ladies and Gentlemen:
America West Airlines, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A319/A320 Purchase Agreement, dated as of
even date herewith (the "Agreement"), which covers, among other matters, the
sale by the Seller and the purchase by the Buyer of certain Aircraft, under the
terms and conditions set forth in the Agreement. The Buyer and the Seller have
agreed to set forth in this Letter Agreement No. 2 (the "Letter Agreement")
certain additional terms and conditions regarding the sale of the Aircraft.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
will have the meanings assigned thereto in the Agreement. The terms "herein,"
"hereof" and "hereunder" and words of similar import refer to this Letter
Agreement.
Both parties agree that this Letter Agreement will constitute an
integral, nonseverable part of the Agreement, except that if the Agreement and
this Letter Agreement have specific provisions that are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
1. GROWTH AIRCRAFT
In consideration of the Buyer entering into the Agreement, the Seller
grants the Buyer certain flexibility rights as set out in this Letter
Agreement with respect to the delivery of A320 Aircraft numbers
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} (the "Growth Aircraft").
1.1 Growth Aircraft Conversion Rights
The Seller grants the Buyer the right to convert {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} the Growth
Aircraft into {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION
<PAGE> 194
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} (the "Converted
Growth Aircraft", upon effectivity of the conversion, also an Aircraft)
in accordance with the terms and conditions contained in this Paragraph
1 (the "Growth Aircraft Conversion Right"), {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
1.2. Growth Aircraft Conversion Procedure and Delivery Dates
1.2.1 The Buyer may exercise the Growth Aircraft Conversion Right upon
written notice (the "Growth Aircraft Conversion Election Notice")
delivered to the Seller {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}.
1.2.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
1.2.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
1.3 Conversion Irrevocable
It is further understood that the exercise of any Growth Aircraft
Conversion Right that will have been made hereunder and agreed to by
the Buyer and the Seller {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}.
1.4 Commercial Terms Applying to the Converted Growth Aircraft
1.4.1 Unless set forth to the contrary in the Agreement, all terms and
conditions applicable to {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}.
1.4.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
LA 2 - 2
<PAGE> 195
1.4.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
1.4.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
1.5 Application of Agreement
The parties hereto acknowledge and agree that unless set forth to the
contrary in this Letter Agreement, the terms and conditions of the
Agreement will apply to the Converted Growth Aircraft.
1.6 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
1.6.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
1.6.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
1.7 Commercial Terms Applying to Growth Aircraft
All terms and conditions applying to the A320 Aircraft shall apply to
the Growth Aircraft, provided that the Seller shall {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
2. A319 AIRCRAFT
2.1 A319 Aircraft Conversion Rights
The Seller grants the Buyer the right to convert {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} A319
Aircraft {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} (the "Converted A319 Aircraft") in accordance
with the terms and conditions contained in this Paragraph 2 (the "A319
Aircraft Conversion Right").
LA 2 - 3
<PAGE> 196
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.2 A319 Aircraft Conversion Procedure and Delivery Dates
2.2.1 The Buyer may exercise the A319 Aircraft Conversion Right upon written
notice (the "A319 Conversion Election Notice") delivered to the Seller
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.2.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.2.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.3 Conversion Irrevocable
It is further understood that any A319 Conversion Right that will have
been exercised hereunder and agreed to by the Buyer and the Seller
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.4 Commercial Terms Applicable to Converted A319 Aircraft
2.4.1 Unless set forth to the contrary in the Agreement, all terms and
conditions applicable to {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}.
2.4.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.4.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.4.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
LA 2 - 4
<PAGE> 197
2.5 Application of Agreement
The parties hereto acknowledge and agree that unless set forth to the
contrary in this Letter Agreement, the terms and conditions of the
Agreement will apply to the Converted A319 Aircraft.
3. A320 FAMILY PURCHASE OPTIONS
3.1 Scope
The Seller grants the Buyer the right to purchase up to forty (40)
additional A319, A320 or A321-200 aircraft (each a "Purchase Option
Aircraft") and to convert the Purchase Option Aircraft into Aircraft,
as set forth below in Subparagraph 3.2. The Purchase Option Aircraft
will be delivered between the beginning of 2001 and the end of 2005
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
3.2 Delivery and Purchase Options Exercise
3.2.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
3.2.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
3.3 Purchase Option Aircraft Pricing
The Base Price of the Purchase Option Aircraft will be {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
3.4 Other Matters
Each Purchase Option Aircraft converted to a firm order will be an
Aircraft for the purposes of the provisions of Clauses 1 through 22 of
the Agreement, the Exhibits to the Agreement and {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
LA 2 - 5
<PAGE> 198
4. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
4.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
5. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of the
Buyer hereunder will not be assigned or transferred in any manner
without the prior written consent of the Seller, and any attempted
assignment or transfer in contravention of the provisions of this
Paragraph 5 will be void and of no force or effect.
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and return a
copy to the Seller.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Michele Lascaux
-------------------
Its: Director Contracts
Accepted and Agreed
AMERICA WEST AIRLINES, INC.
By: /s/ S. L. Johnson
-----------------------------------
Its: Sr. Vice President - Legal Affairs
LA 2 - 6
<PAGE> 199
APPENDIX 1
1. A321-200 AIRCRAFT
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}, this Appendix 1 sets forth the specification, prices,
propulsion systems and purchase incentives applicable to either
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} ("A321-200 Aircraft").
2. SPECIFICATION
The A321-200 Aircraft will be manufactured in accordance with the A321
Standard Specification, Document No. E.000.02000, Issue 1, dated June
30, 1995, (the "A321 Standard Specification" which is annexed hereto as
Exhibit B to Appendix 1) as modified by the SCNs listed in Exhibit C to
Appendix 1 hereto and as may be further modified from time to time,
pursuant to the provisions of Clause 3 of the Agreement, with an MTOW
of 89 tonnes,{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} (the "A321 Specification").
3. PRICE
3.1 A321-200 Aircraft
The "Base Price" of the A321-200 Aircraft will be the sum of:
(i) the Base Price of the A321-200 Airframe, and
(ii) the Base Price of the A321-200 Aircraft Propulsion Systems.
3.1.1 Base Price of the A321-200 Airframe
3.1.1.1 The Base Price of the A321-200 Airframe is the sum of the Base Prices
set forth below in (i) and (ii):
(i) the Base Price of the A321-200 Airframe, as defined in the
A321 Standard Specification set forth in Exhibit B to Appendix
1 hereto (excluding A321 Propulsion Systems but taking into
account the A321-200 marketing allowances given to the Seller
by the Propulsion Systems manufacturer) and all SCNs set forth
in Exhibit C to Appendix 1, Part 1 hereto is:
<PAGE> 200
US ${CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT}
(Dollars-{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}).
(ii) the Base Price of the SCNs set forth in Exhibit C to Appendix
1, Part 2 hereto is:
US ${CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT}
(Dollars--{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}).
3.1.1.2 The Base Price of the A321-200 Airframe is quoted at delivery
conditions prevailing in January 1996 and will be revised to the actual
delivery date of each A321-200 Aircraft in accordance with the Airframe
Price Revision Formula set forth in Exhibit D to the Agreement.
3.1.2 Base Price of the A321-200 Aircraft Propulsion System
3.1.2.1 The Buyer has selected the IAE V2533-A5 Propulsion Systems to equip the
A321-200 Aircraft.
The Base Price of a set of two (2) IAE V2533-A5 Propulsion Systems
including related equipment, nacelles, and thrust reversers at delivery
conditions prevailing in January 1996 including the engine condition
monitoring option is:
US ${CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST
FOR CONFIDENTIAL TREATMENT}
(Dollars-{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT})
(hereinafter, the "V2533-A5 Base Price").
The V2533-A5 Base Price has been calculated with reference to the
V2533-A5 Reference Price indicated by International Aero Engines of US
${CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE
LA 2/App. 1 - 2
<PAGE> 201
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
(Dollars-{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}) in accordance with economic conditions
prevailing in March 1988.
The V2533-A5 Reference Price is subject to adjustment to the date of
delivery of each A321-200 Aircraft in accordance with the International
Aero Engines Price Revision Formula set forth in Exhibit A to Appendix
1 of this Letter Agreement.
3.1.2.2 It is understood that the prices and price revision formula cited above
for the Propulsion Systems and related equipment are based on
information received from the Propulsion Systems manufacturer and
remain subject to any modification that might be communicated by the
Propulsion Systems manufacturer to the Manufacturer, the Seller and/or
the Buyer.
3.2. Final Contract Price
The Final Contract Price of an A321-200 Aircraft will be the sum of:
(i) the Base Price of the A321-200 Airframe constituting a part of
such A321-200 Aircraft, as adjusted to the date of delivery of
such A321-200 Aircraft in accordance with Exhibit D to the
Agreement;
(ii) the price (as of delivery conditions prevailing in January
1996) of any SCNs constituting a part of such A321-200
Aircraft that are entered into pursuant to Clause 3 of the
Agreement after the date of execution of this Letter
Agreement, as adjusted to the date of delivery of such
A321-200 Aircraft in accordance with Exhibit D to the
Agreement;
(iii) the V2533-A5 Reference Price of the installed Propulsion
Systems constituting a part of such A321-200 Aircraft, as
adjusted to the date of delivery of such A321- 200 Aircraft in
accordance with Exhibit A to Appendix 1 to this Letter
Agreement; and
(iv) any other amount resulting from any other provisions of the
Agreement and/or any other written agreement between the Buyer
and the Seller relating to the A321-200 Aircraft and
specifically making reference to the Final Contract Price of
an A321-200 Aircraft.
4. A321-200 AIRCRAFT PURCHASE INCENTIVES
4.1. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
LA 2/App. 1 - 3
<PAGE> 202
4.2. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
LA 2/App. 1 - 4
<PAGE> 203
EXHIBIT A
TO APPENDIX 1
INTERNATIONAL AERO ENGINES PRICE REVISION FORMULA
l. REFERENCE PRICE
The V2533-A5 Reference Price of a set of two (2) International Aero
Engines V2533-A5 Propulsion Systems is as quoted in Subparagraph
3.1.2.1 of Appendix 1 to this Letter Agreement.
This V2533-A5 Reference Price is valid for Aircraft {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}, and is
subject to adjustment for changes in economic conditions as measured by
data obtained from the US Department of Labor, Bureau of Labor
Statistics, and in accordance with the provisions of Paragraphs 4 and 5
of this Exhibit A to Appendix 1.
2. REFERENCE PERIOD
The above V2533-A5 Reference Price has been established in accordance
with the economic conditions prevailing in March 1988 (or July 1988
theoretical delivery conditions) as defined, according to International
Aero Engines, by the HEb, MMPb and EPb index values indicated in
Paragraph 4 of this Exhibit A to Appendix 1.
3. INDEXES
Labor Index: "Aircraft Engines and Engine Parts" Standard Industrial
Classification 3724--Average hourly earnings (hereinafter referred to
as "HE SIC 3724"), published by the US Department of Labor, Bureau of
Labor Statistics, in "Employment and Earnings," Establishment Data:
Hours and Earnings (Table B-15: Average hours and earnings of
production or nonsupervisory workers on private nonfarm payrolls by
detailed industry) or such other names which may be from time to time
used for the publication title and/or table.
Material Index: "Metals and Metal Products" Code l0 (hereinafter
referred to as "MMP-Index"), published by the US Department of Labor,
Bureau of Labor Statistics, in "PPI Detailed Report" (Table 6: Producer
price indexes and percent changes for commodity groupings and
individual items, not seasonally adjusted) (Base year 1982 = 100.) or
such other names which may be from time to time used for the
publication title and/or table.
Energy Index: "Fuels and Related Products and Power" Code 5
(hereinafter referred to as "EP-Index"), published by the US Department
of Labor, Bureau of Labor Statistics, in "PPI Detailed Report" (Table
6: Producer price indexes and percent changes for
<PAGE> 204
commodity groupings and individual items, not seasonally adjusted)
(Base year 1982 = 100) or such other names which may be from time to
time used for the publication title and/or table.
4. REVISION FORMULA
Pn = Pb [(0.60 HEn)/HEb + (0.30 MMPn)/MMPb + (0.l0
EPn)/EPb]
Where
Pn = Revised V2533-A5 Reference Price of a set of two (2)
Propulsion Systems at delivery of the Aircraft.
Pb = V2533-A5 Reference Price at March 1988 economic
conditions.
HEn = HE SIC 3724 for the fourth month prior to the month
of delivery of the Aircraft.
HEb = HE SIC 3724 for March 1988 (= 13.58)
MMPn = MMP-Index for the fourth month prior to the month of
delivery of the Aircraft.
MMPb = MMP-Index for March 1988 (= 115.4)
EPn = EP-Index for the fourth month prior to the month of
delivery of the Aircraft.
EPb = EP-Index for March 1988 (= 65.9)
In determining the revised V2533-A5 Reference Price each quotient
((0.60 HEn)/HEb, (0.30 MMPn)/MMPb, (0.l0 EPn)/EPb) will be calculated
to the nearest ten thousandth (4 decimals). If the next succeeding
place is five (5) or more the preceding decimal place will be raised to
the next higher figure.
After final computation, Pn will be rounded to the next whole number
(0.5 or more rounded to l).
5. GENERAL PROVISIONS
5.1 The revised V2533-A5 Reference Price at delivery of the Aircraft will
be the final price and will not be subject to further adjustments in
the indexes.
LA 2/App. 1/Exh. A - 2
<PAGE> 205
5.2 If no final index value is available for any of the applicable months,
the published preliminary figures will be the basis on which the
revised V2533-A5 Reference Price will be computed.
5.3 If the US Department of Labor substantially revises the methodology of
calculation of the indexes referred to in this Exhibit A to Appendix 1
or discontinues any of these indexes, the Seller will, in agreement
with International Aero Engines, apply a substitute for the revised or
discontinued index, such substitute index to lead in application to the
same adjustment result, insofar as possible, as would have been
achieved by continuing the use of the original index as it may have
fluctuated had it not been revised or discontinued. Appropriate
revision of the formula will be made to accomplish this result.
5.4 Should the above escalation provisions become null and void by action
of the US Government, the V2533-A5 Reference Price will be adjusted to
reflect increases in the cost of labor, material and fuel which have
occurred from the period represented by the applicable V2533-A5
Reference Price indexes to the fourth month prior to the scheduled
delivery of the Aircraft.
5.5 The revised V2533-A5 Reference Price at delivery of the Aircraft in no
event will be less than the V2533-A5 Reference Price defined in
Paragraph 1 of this Exhibit A to Appendix 1.
LA 2/App. 1/Exh. A - 3
<PAGE> 206
EXHIBIT B
TO APPENDIX 1
The A321-200 Standard Specification is contained in a separate folder.
<PAGE> 207
EXHIBIT C
TO APPENDIX 1
CHANGE ORDERS TO A321-200 AIRCRAFT
STANDARD SPECIFICATION (SCNs)
All Change orders listed in this Exhibit C to Appendix 1 Part 1 and Part 2 shall
be SCNs for the purpose of Subparagraph 3.1.1 of Appendix 1 to this Letter
Agreement No. 2. All prices are expressed in January 1996 delivery conditions
and are subject to escalation in accordance with the provisions of this
Agreement.
<PAGE> 208
EXHIBIT C
TO APPENDIX 1
Part 1
<TABLE>
<CAPTION>
================================================================================
ATA CHAPTER TITLE
- --------------------------------------------------------------------------------
<S> <C>
{CONFIDENTIAL {CONFIDENTIAL MATERIAL OMITTED AND FILED
MATERIAL SEPARATELY WITH THE SECURITIES AND EXCHANGE
OMITTED AND COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
FILED TREATMENT}
SEPARATELY
WITH THE
SECURITIES
AND EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
================================================================================
</TABLE>
<PAGE> 209
EXHIBIT C
TO APPENDIX 1
Part 2
<TABLE>
<CAPTION>
================================================================================
ATA CHAPTER TITLE
- --------------------------------------------------------------------------------
<S> <C>
{CONFIDENTIAL {CONFIDENTIAL MATERIAL OMITTED AND FILED
MATERIAL SEPARATELY WITH THE SECURITIES AND EXCHANGE
OMITTED AND COMMISSION PURSUANT TO A REQUEST FOR
FILED CONFIDENTIAL TREATMENT}
SEPARATELY
WITH THE
SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
================================================================================
</TABLE>
<PAGE> 210
LETTER AGREEMENT NO. 3
As of September 12, 1997
America West Airlines, Inc.
Phoenix Sky Harbor International Airport
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: PURCHASE INCENTIVES
Dear Ladies and Gentlemen:
America West Airlines, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A319/A320 Purchase Agreement, dated as of
even date herewith (the "Agreement"), which covers, among other matters, the
sale by the Seller and the purchase by the Buyer of certain Aircraft, under the
terms and conditions set forth in the Agreement. The Buyer and the Seller have
agreed to set forth in this Letter Agreement No. 3 (the "Letter Agreement")
certain additional terms and conditions regarding the sale of the Aircraft.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
will have the meanings assigned thereto in the Agreement. The terms "herein,"
"hereof" and "hereunder" and words of similar import refer to this Letter
Agreement.
Both parties agree that this Letter Agreement will constitute an
integral, nonseverable part of the Agreement, except that if the Agreement and
this Letter Agreement have specific provisions that are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
1. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} CREDIT MEMORANDUM
1.1 The Seller will provide to the Buyer a credit memorandum in the amount
of {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
1.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
<PAGE> 211
2. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
2.1 In consideration of the Buyer's order for the Aircraft, the Seller will
provide to the Buyer a credit memorandum in the amount of {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
2.2 Further, the Seller will provide to the Buyer a credit memorandum in
the amount of {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}
2.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
3. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} CREDIT MEMORANDUM
3.1 The Seller will provide to the Buyer a credit memorandum in the amount
of {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
3.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
4.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}:
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}:
LA 3 - 2
<PAGE> 212
(i) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
(ii) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
4.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}:
5. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
5.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
5.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
6. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
The Seller will provide the Buyer with {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} credit memorandum in
the amount of {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
7. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
8. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
LA 3 - 3
<PAGE> 213
8.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
8.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
8.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
(i) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}; and
(ii) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
8.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
8.4.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
8.4.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
8.4.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
8.4.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
8.4.5 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
LA 3 - 4
<PAGE> 214
8.4.6 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
8.5 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
8.5.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
8.5.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
8.5.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
8.5.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
8.5.5 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
8.5.6 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
8.6 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
8.6.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
8.6.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
LA 3 - 5
<PAGE> 215
(a) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
(b) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
8.6.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
8.6.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
9. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of the
Buyer hereunder will not be assigned or transferred in any manner
without the prior written consent of the Seller, and any attempted
assignment or transfer in contravention of the provisions of this
Paragraph 9 will be void and of no force or effect.
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and return a
copy to the Seller.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Michele Lascaux
-------------------
Its: Director Contracts
Accepted and Agreed
AMERICA WEST AIRLINES, INC.
By: /s/ S. L. Johnson
-----------------------------------
Its: Sr. Vice President - Legal Affairs
LA 3 - 6
<PAGE> 216
APPENDIX 1 TO
LETTER AGREEMENT NO. 3
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}
1) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
3) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
5) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
<PAGE> 217
LETTER AGREEMENT NO. 4
As of September 12, 1997
America West Airlines, Inc.
Phoenix Sky Harbor International Airport
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: PREDELIVERY PAYMENTS
Dear Ladies and Gentlemen:
America West Airlines, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A319/A320 Purchase Agreement, dated as of
even date herewith (the "Agreement"), which covers, among other matters, the
sale by the Seller and the purchase by the Buyer of certain Aircraft, under the
terms and conditions set forth in the Agreement. The Buyer and the Seller have
agreed to set forth in this Letter Agreement No. 4 (the "Letter Agreement")
certain additional terms and conditions regarding the sale of the Aircraft.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
will have the meanings assigned thereto in the Agreement. The terms "herein,"
"hereof" and "hereunder" and words of similar import refer to this Letter
Agreement.
Both parties agree that this Letter Agreement will constitute an
integral, nonseverable part of the Agreement, except that if the Agreement and
this Letter Agreement have specific provisions that are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
1. PRIOR AGREEMENTS, PAYMENTS AND {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}
1.1 Old Predelivery Payments
The Seller acknowledges that, as of even date herewith, the Buyer has
paid to the Seller cash Predelivery Payments in accordance with the
1990 Purchase Agreement in the total amount of {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
1.2 Deposits
The Seller acknowledges that prior to the date hereof the Buyer has
paid the Seller cash deposits for the Aircraft as follows (the "Cash
Deposits"):
<PAGE> 218
(i) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT};
(ii) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT};
(iii) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
1.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
1.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} PREDELIVERY PAYMENTS
2.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} predelivery payments ({CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}) will be paid by the Buyer to
the Seller {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}:
(i) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}; and
(ii) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
LA 4 - 2
<PAGE> 219
(iii) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
2.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
2.2.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.2.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.3 Adjustment of Predelivery Payments
2.3.1 Predelivery Payment {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} Adjustment
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.3.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
2.3.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
2.3.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.4 Buyer's Breach of the Agreement
Notwithstanding the other provisions of the Agreement, in the event the
Buyer materially breaches its obligations under the Agreement
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
LA 4 - 3
<PAGE> 220
2.5 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
3. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
3.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
3.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
3.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
3.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
3.4.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
3.4.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
3.4.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
3.4.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
3.4.4.1 (a) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
LA 4 - 4
<PAGE> 221
(b) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
3.4.4.2 (a) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
(b) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
3.4.5 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
3.5 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
3.6 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
3.7 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
4. OTHER MATTERS REGARDING PREDELIVERY PAYMENTS FOR PURCHASE OPTIONS
This Paragraph 4 shall be for the sake of clarification only.
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
5. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of the
Buyer hereunder will not be assigned or transferred in any manner
without the prior written consent of the Seller, and any attempted
assignment or transfer in contravention of the provisions of this
Paragraph 5 will be void and of no force or effect.
LA 4 - 5
<PAGE> 222
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and return a
copy to the Seller.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Michele Lascaux
-------------------
Its: Director Contracts
Accepted and Agreed
AMERICA WEST AIRLINES, INC.
By: /s/ S. L. Johnson
-----------------------------------
Its: Sr. Vice President - Legal Affairs
LA 4 - 6
<PAGE> 223
APPENDIX 1
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
1. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
1.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
(a) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
(b) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
(c) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
(d) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
1.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
1.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
1.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
1.5 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
<PAGE> 224
1.6 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
1.7 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
2.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
(a) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}
(i) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
(ii) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
(b) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
LA 4/App. 1 - 2
<PAGE> 225
(c) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
2.5 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.6 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
(a) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT};
(b) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT};
(c) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT};
(d) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT};
(e) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT};
(f) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
(g) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT};
(h) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
3. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
LA 4/App. 1 - 3
<PAGE> 226
4. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
4.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
(a) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
(b) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}:
(i) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}; or
(ii) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}
(c) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
4.5 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
LA 4/App. 1 - 4
<PAGE> 227
5. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
(a) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
(b) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}:
(x) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}, and
(y) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
(c) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
(d) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
6. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
6.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
(a) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT};
(b) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT};
LA 4/App. 1 - 5
<PAGE> 228
(c) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT};
(d) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}:
(i) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT},
(ii) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT},
(iii) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT},
(iv) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT},
(v) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}, or
(vi) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
6.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}:
LA 4/App. 1 - 6
<PAGE> 229
(i) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}; or
(ii) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}; or
(iii) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}; or
(iv) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}; or
(v) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
6.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
6.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
6.5 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
6.6 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
7. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
LA 4/App. 1 - 7
<PAGE> 230
8. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
9. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
10. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
11. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
(a) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
(b) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
(c) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
LA 4/App. 1 - 8
<PAGE> 231
IN WITNESS WHEREOF, AMERICA WEST AIRLINES, INC. has caused this {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} to be signed in its
corporate name by its officer thereunto duly authorized, and to be dated as of
the day and year first above written.
AMERICA WEST AIRLINES, INC.
By:
Its: ______________________
LA 4/App. 1 - 9
<PAGE> 232
APPENDIX 2
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
<TABLE>
<S> <C> <C>
- --------------------------------------------------------------------------------
{CONFIDENTIAL {CONFIDENTIAL {CONFIDENTIAL
MATERIAL OMITTED MATERIAL MATERIAL OMITTED
AND FILED OMITTED AND AND FILED
SEPARATELY WITH FILED SEPARATELY WITH
THE SECURITIES AND SEPARATELY THE SECURITIES AND
EXCHANGE WITH THE EXCHANGE
COMMISSION SECURITIES AND COMMISSION
PURSUANT TO A EXCHANGE PURSUANT TO A
REQUEST FOR COMMISSION REQUEST FOR
CONFIDENTIAL PURSUANT TO A CONFIDENTIAL
TREATMENT} REQUEST FOR TREATMENT}
CONFIDENTIAL
TREATMENT}
- --------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C>
{CONFIDENTIAL MATERIAL OMITTED AND {CONFIDENTIAL
FILED SEPARATELY WITH THE SECURITIES MATERIAL OMITTED
AND EXCHANGE COMMISSION PURSUANT AND FILED
TO A REQUEST FOR CONFIDENTIAL SEPARATELY WITH
TREATMENT} THE SECURITIES AND
EXCHANGE
COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
- --------------------------------------------------------------------------------
</TABLE>
<PAGE> 233
LETTER AGREEMENT NO. 5
As of September 12, 1997
America West Airlines, Inc.
Phoenix Sky Harbor International Airport
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: TRAINING MATTERS
Dear Ladies and Gentlemen:
America West Airlines, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A319/A320 Purchase Agreement, dated as of
even date herewith (the "Agreement"), which covers, among other matters, the
sale by the Seller and the purchase by the Buyer of certain Aircraft, under the
terms and conditions set forth in the Agreement. The Buyer and the Seller have
agreed to set forth in this Letter Agreement No. 5 (the "Letter Agreement")
certain additional terms and conditions regarding the sale of the Aircraft.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
will have the meanings assigned thereto in the Agreement. The terms "herein,"
"hereof" and "hereunder" and words of similar import refer to this Letter
Agreement.
Both parties agree that this Letter Agreement will constitute an
integral, nonseverable part of the Agreement, except that if the Agreement and
this Letter Agreement have specific provisions that are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
The Seller will provide the training services described in this Letter
Agreement on the terms and conditions described herein.
1. TRAINING PACKAGE
The whole range of training services described in this Paragraph 1
shall be provided by the Seller to the Buyer free-of-charge (the
"Training Package"). The general terms set forth in Paragraph 5 of this
Letter Agreement shall apply to this Training Package.
<PAGE> 234
1.1 Simulator Time
The Seller will provide or cause a third party to provide (i)
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} of full flight simulator ("FFS") time {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} and (ii)
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} of fixed base simulator ("FBS") time {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}. The
Seller will provide such FFS and FBS time (i) pursuant to a schedule to
be mutually agreed at the training conference referred to in
Subparagraph 5.1.2 below and (ii) having regard to the phase-in of the
Aircraft into the Buyer's fleet pursuant to the Aircraft delivery
schedule set forth in Clause 9 of the Agreement. {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
1.2 Operations/Performance Courses
The Seller will, upon the Buyer's written request, provide or cause to
be provided free-of- charge to the Buyer {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} to be used for the
training courses listed in Appendix A to this Letter Agreement. Courses
will be scheduled only for a minimum/maximum number of participants to
be agreed upon at the training conference, and may take place in at the
Airbus training center located in Miami, Florida, or at the Buyer's
base in accordance with the provisions of this Letter Agreement No. 5.
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
1.3 Maintenance Courses
1.3.1 Maintenance Training
The Seller will, upon the Buyer's written request, train or cause to be
trained free-of- charge the Buyer's ground personnel for a training
period equivalent to {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR
LA 5 - 2
<PAGE> 235
CONFIDENTIAL TREATMENT} of instruction for the whole range of courses
listed in Appendix B hereto. The number of EM-07 (Engine Run-up)
courses will be limited to {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}.
The courses will only be scheduled for the minimum/maximum number of
participants as agreed upon at the training conference. The
trainee-days will be debited as follows:
(i) For instruction at the Seller's training centers,
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
(ii) For instruction at locations other than the Seller's training
centers, {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}. The Buyer will reimburse
the expenses for the instructors as set forth in Subparagraph
5.1.7 below.
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
1.3.2 Maintenance Line Training
In order to assist the Buyer with practical line training, such as
Aircraft handling and servicing, flight crew/maintenance coordination,
use of manuals and any other activities that the instructor might deem
necessary, the Seller will, upon the Buyer's written request, provide
or cause to be provided to the Buyer, {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} at the Buyer's base.
The Buyer will reimburse the expenses for the instructor as set forth
in Subparagraph 5.1.7 below. Additional maintenance instructors can be
provided at the Buyer's expense.
1.4 Simulator Data Package
The Seller shall provide the Buyer with {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
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<PAGE> 236
1.5 A319 VACBI Courseware
The Seller shall provide the Buyer with {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} of each of an A319
VACBI flight crew computer based training courseware and an A319 VACBI
maintenance computer based training courseware ({CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}) at dates
to be mutually agreed. {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}. Such courseware shall be the
Seller's standard courseware. It is agreed that any costs associated
with adapting the Seller's courseware to the hardware acquired by the
Buyer shall be borne by the Buyer.
The A319 VACBI courseware, as revised, will be for the training of the
Buyer's personnel only.
The Seller shall also, if so requested by the Buyer, provide
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} VACBI maintenance course training and shall reasonably
assist the Buyer in implementing its own VACBI instruction.
1.6 Update of A320 VACBI Courseware
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
2. A319/A321 AIRCRAFT TRAINING PACKAGE CREDIT
2.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
2.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
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<PAGE> 237
3. VENDORS AND PROPULSION SYSTEMS MANUFACTURER TRAINING
The Seller will ensure that the major Vendors and the Propulsion
Systems manufacturer will provide maintenance and overhaul training on
their products at appropriate times.
A list of the Vendors concerned has been furnished to the Buyer, as of
the date hereof.
4. FMGS FREE-PLAY TRAINER
The Seller will provide the Buyer with {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} FMGS (flight
management and guidance system) 3D free-play trainer at a cost
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}, to support the Buyer's in-house training requirements.
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
5. TRAINING AND TRAINING AIDS
5.1 General
5.1.1 Training Sites
The Seller will provide training services, or cause training services
to be provided, for the Buyer's personnel at the Airbus training center
located in Toulouse, France, or Miami, Florida, as more fully described
in this Paragraph 5.
Certain training may also be provided by the Seller at the Buyer's base
or any other location (providing for an FAA-approved training facility
in the event of flight training), if and when practicable for the
Seller and the Buyer, under terms and conditions to be mutually agreed.
The location at which training services will be provided will be
mutually agreed at the training conference referenced below in
Subparagraph 5.1.2. The Seller will endeavor to use Miami or North
America as a training site.
5.1.2 Training Conference
Training courses provided for the Buyer's personnel will be scheduled
at dates mutually agreed during a training conference to be held within
six (6) weeks of the date hereof. The courses will be scheduled for a
minimum number of participants, to be agreed upon at the training
conference.
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<PAGE> 238
5.1.3 Course Level
Training courses provided for the Buyer's personnel will be the
Seller's standard courses.
The academic curricula will be modified to include information on the
Specification (with the exception of Buyer Furnished Equipment and
SSBFE) as known at the latest six (6) months prior to the start of the
first course. The training equipment used for flight and maintenance
crew training will reflect the Specification as closely as possible but
will not necessarily be fully customized. The Seller will be
responsible for all training course syllabi, training aids, and
training equipment necessary for the organization of the training
courses.
5.1.4 Course Prerequisites
Training will be performed in English, and all training materials will
be supplied in English using aeronautical terminology in common use.
Avionics specialists must have knowledge of digital techniques
including ARINC 429 liaisons.
The Buyer will be responsible for the selection of training and for any
liability with respect to entry level knowledge of the trainees.
5.1.5 Attendance and Performance
In fulfillment of its obligation to provide training courses, the
Seller will deliver to the trainees a certificate of completion at the
end of such training courses. This certificate does not represent
authority or qualification by any official civil aviation authority,
but may be presented to such authority as an attestation of completion
of the Seller's training courses.
The Seller will provide the Buyer with an attendance list of the
trainees for each course and with the validated performance of each
trainee.
It is understood that the Seller's standard courses are designed and
approved to bring jet transport specialists to a professional knowledge
of the Aircraft. However, the Seller will not be held liable for the
unsatisfactory performance of any individual trainee for whatever
reason originating from the Buyer, including, but not limited to, entry
level or learning capacity.
5.1.6 Additional Training
Supply of an additional number of courses for the Buyer's personnel,
over and above those provided free-of-charge pursuant to the Agreement,
and the supply of other additional training services can be provided at
the Buyer's expense, subject to availability.
LA 5 - 6
<PAGE> 239
On the Buyer's request and/or on the Seller's advice and subject to
mutual agreement, an extension in duration, a repetition or a deviation
from the standard of any course to be given or in progress (for reasons
due to the Buyer, including, but not limited to unsatisfactory
performance of the trainees) may be provided. Extensions exceeding the
Buyer's trainee-day allowance set forth hereunder will be at the
Buyer's expense.
5.1.7 Training at the Buyer's Base
In the event that, at the Buyer's request, training is provided by the
Seller's instructors at any location other than the Seller's training
center in Toulouse, France, or Miami, Florida, the Buyer will reimburse
the Seller for all the actual expenses related to the assignment of its
instructors and their performance of the duties as aforesaid
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
The Buyer will transport the Seller's instructors on the Buyer's route
network. When the use of the Buyer's route network is not feasible or
practical, the Buyer will reimburse the Seller for transportation on
other airlines.
It is understood that transportation of the Seller's instructors
includes travel to and from the Seller's training center and the place
of assignment.
The training equipment necessary for course performance on the Buyer's
request at any base other than the Seller's will be provided by the
Buyer in accordance with the Seller's specifications.
In the event the relevant equipment cannot be made available by the
Buyer, this equipment will, when practicable, be provided by the Seller
and sent by air from Miami, Florida, to the course location and back to
Miami, Florida, at the Buyer's expense.
The Seller will not be responsible for any and all delays in the
performance of training outside the Seller's training centers
associated with transportation services described above.
5.1.8 Insurance
The Buyer will provide the Seller with a certificate of insurance
evidencing coverage required under the provisions of Subparagraph 5.3
hereunder.
LA 5 - 7
<PAGE> 240
5.1.9 Buyer's Personnel Transportation
(i) When training is performed in Toulouse, France, the Seller
will provide free-of-charge local transportation by bus for
the Buyer's trainees to and from designated pick up points and
the training center. The Seller will also provide each flight
crew with a rented car or taxi transportation as from the
beginning of the Fixed Base Simulator (FBS) phase of the
course to enable the crew to attend either simulator or flight
sessions at any time.
(ii) When training is performed in Miami, Florida, the Seller will
provide free-of-charge for the Buyer's trainees and for each
flight crew a rented car or taxi transportation as from the
beginning of the transition course.
(iii) The rental cars will be provided on an unlimited mileage
basis, provided however that gas and fines shall be at the
Buyer's expense.
5.2 Training Aids and Materials
For the purposes of this Paragraph 5, training aids will be understood
to (a) include all printed course materials, including manuals and
supporting documents, and (b) exclude all computer hardware, software
(except performance software made available by the Seller to the Buyer
during the Seller's course) and courseware (including simulators and
simulator data packages) and all other equipment.
Training aids and materials are for trainees receiving the training
referred to in Paragraph 1 herein and will be free-of-charge.
Training aids will be "FOR TRAINING ONLY," and as such are supplied for
the sole and express purpose of training.
All training aids and materials supplied to the Buyer are for the
training of the Buyer's personnel only. The Buyer undertakes not to
divulge the contents thereof to any third party without the prior
agreement of the Seller, save as required pursuant to any governmental,
contractual or legal requirement imposed upon the Buyer.
The Buyer acknowledges that the training aids contain trade secrets and
commercial, financial and proprietary information that is privileged,
confidential and covered by copyrights. Therefore, the contents of the
training aids will not be disclosed to any person, governmental agency,
company, corporation or other party except as such disclosure is
required by law.
LA 5 - 8
<PAGE> 241
5.3 Indemnity and Insurance
The Buyer will indemnify and hold harmless the Seller, the
Manufacturer, each of the Associated Contractors and their respective
Affiliates, directors, officers, agents and employees from and against
all liabilities, damages, losses, loss of use, costs and expenses (i)
for all injuries to and death of persons (excepting injuries to and
death of the Seller's representatives providing the services described
in this Letter Agreement) caused by the Seller or its representatives
and (ii) for loss of or damage to property (excepting loss of or damage
to property of the Seller's representatives) caused by the Seller or
its representatives, in either case when arising out of or in
connection with the provision of services under this Letter Agreement.
This indemnity of the Buyer will not apply for any such liabilities,
damages, losses, costs or expenses arising out of or caused by the
willful misconduct or negligence of the Seller's representatives.
The Seller will indemnify and hold harmless the Buyer, its directors,
officers, agents and employees from and against all liabilities,
damages, losses, costs and expenses (i) for injuries to or death of the
Seller's representatives providing the services described in this
Letter Agreement, (ii) for loss of or damage to property of the
Seller's representatives or (iii) arising out of or caused by the
willful misconduct or negligence of the Seller's representatives. With
respect to subclauses (i) and (ii) of the preceding sentence, the
Seller will not be obligated to indemnify or hold harmless the Buyer
where the Seller's liabilities, damages, losses, costs or expenses
arise from the Buyer's gross negligence or willful misconduct.
In the event any claim is made or lawsuit is brought against either
party (or its respective directors, officers, agents or employees) for
damages for death or injury or for property damage, the liability for
which has been assumed by the other party pursuant to this Subparagraph
5.3, the former (indemnitee) will promptly give notice to the other
party (indemnitor), and the indemnitor will assume and conduct the
defense thereof, and will have the right to effect any settlement that
it, in its opinion, deems proper except that the indemnitor may not
effect any settlement which includes any admission, settlement, or
compromise to be made by the indemnitee without the indemnitee's
consent. In such case, the indemnitor agrees to keep the indemnitee
fully advised of the conduct of the defense. In the event that the
indemnitor does not assume and conduct the defense of the claim or
lawsuit, then the indemnitee will have the right to proceed with the
defense of the claim or lawsuit as it deems appropriate and will have
an action against the indemnitor for any judgments, settlements, costs
or expenses incurred in conducting the defense. For the purpose of this
Subparagraph 5.3, a claim or lawsuit against the Manufacturer or any of
the Associated Contractors or any of their respective directors,
officers, agents or employees will be deemed to be a claim or lawsuit
against the Seller.
For the period of performance described in this Letter Agreement, the
Buyer will (i) indemnify and waive any rights of recourse or
subrogation against the Seller, the Manufacturer, each of the
Associated Contractors, and their respective Affiliates, directors,
officers, agents, and employees in respect of all risks hull insurance
policy, and
LA 5 - 9
<PAGE> 242
(ii) effect insurance to cover third-party liability risks arising
during the performance in an amount satisfactory to the Seller, naming
the Seller and its directors, officers, agents and employees as
additional insureds. Such insurance will contain a cross-liability
clause and will also contain a thirty (30)-day notice-of-cancellation
provision. Upon request, the Buyer will deliver to the Seller a
certificate of insurance evidencing the coverage required by this
Subparagraph 5.3.
6. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of the
Buyer hereunder will not be assigned or transferred in any manner
without the prior written consent of the Seller, and any attempted
assignment or transfer in contravention of the provisions of this
Paragraph 6 will be void and of no force or effect.
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and return a
copy to the Seller.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Michele Lascaux
Its: Director Contracts
Accepted and Agreed
AMERICA WEST AIRLINES, INC.
By: /s/ S. L. Johnson
Its: Sr. Vice President - Legal Affairs
LA 5 - 10
<PAGE> 243
APPENDIX A
LIST OF A319 OPERATIONS/PERFORMANCE COURSES
JM01 MANAGEMENT SURVEY COURSE
JM02 PERFORMANCE ENGINEER'S COURSE
JM03 DISPATCHER'S COURSE
JMC5 FLIGHT CREW GROUND INSTRUCTOR'S COURSE
JM06 WEIGHT AND BALANCE COURSE
JM07 LOAD MASTER TRANSITION
JM08 ETOPS DISPATCHER
JM38 DISPATCHER TRANSITION AND ETOPS QUALIFICATION
JM67 WEIGHT AND BALANCE, LOAD MASTER TRANSITION
Note: The above list of courses is provided for information only and is
subject to modifications. Similar courses can be provided for the
A321-200 Aircraft
<PAGE> 244
APPENDIX B
LIST OF STANDARD A319 MAINTENANCE COURSES
JM01 GENERAL FAMILIARIZATION
JM02 RAMP AND TRANSIT
JM31 LINE MECHANICS/AVIONICS (LEVEL 2)
JM42 BASE MECHANICS, ELECTRICS AND AVIONICS (LEVEL 3)
JM45 BASE MECHANICS AND ELECTRICS (LEVEL 3)
JM52 BASE ELECTRICS AND AVIONICS (LEVEL 3 )
JM07 ENGINE RUN-UP
JM09 MECHANIC CONTROL RIGGING
JM10 CABIN INTERIOR AND EMERGENCY EQUIPMENT
JM11 STRUCTURE REPAIR
JM12 ON THE JOB PRACTICAL TRAINING
JM16 SPECIFIC NONDESTRUCTIVE TESTING
JM17 COMPOSITE STRUCTURE REPAIR
JM18 ETOPS MAINTENANCE
JM20 AIRCRAFT INTEGRATED DATA SYSTEM MAINTENANCE
JMG04 CARGO LOADING AND HANDLING
JM42E A319/A320 DIFFERENCES
XM15 BASIC DIGITAL AND MICROPROCESSOR
JM21 STRUCTURE REPAIR FOR ENGINEERS/METALLIC STRUCTURES
JM23 MATERIALS AND PROCESSES FOR ENGINEERS
Note: The above list of courses is provided for information only and is
subject to modifications. Similar courses can be provided for the
A321-200 Aircraft.
<PAGE> 245
LETTER AGREEMENT NO. 6
As of September 12, 1997
America West Airlines, Inc.
Phoenix Sky Harbor International Airport
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: MISCELLANEOUS PRODUCT SUPPORT AND AIRCRAFT DELIVERY MATTERS
Dear Ladies and Gentlemen:
America West Airlines, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A319/A320 Purchase Agreement, dated as of
even date herewith (the "Agreement"), which covers, among other matters, the
sale by the Seller and the purchase by the Buyer of certain Aircraft, under the
terms and conditions set forth in the Agreement. The Buyer and the Seller have
agreed to set forth in this Letter Agreement No. 6 (the "Letter Agreement")
certain additional terms and conditions regarding the sale of the Aircraft.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
will have the meanings assigned thereto in the Agreement. The terms "herein,"
"hereof" and "hereunder" and words of similar import refer to this Letter
Agreement.
Both parties agree that this Letter Agreement will constitute an
integral, nonseverable part of the Agreement, except that if the Agreement and
this Letter Agreement have specific provisions that are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
1. MAINTENANCE PLANNING DATA SUPPORT
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}
2. ADDITIONAL COMMITMENTS RELATING TO VENDORS
2.1 Seller's Support
In addition to the provisions of Clause 17 of the Agreement, prior to
delivery of the first Aircraft under the Agreement, the Seller will
obtain from all Vendors listed in the Supplier Product Support
Agreements, enforceable and transferable warranties (and service life
policies, when applicable) and indemnities against patent infringements
for
<PAGE> 246
each of their components, equipment, accessories and parts that are
installed in an Aircraft at the time of delivery thereof ("Vendor
Parts," it being understood that such term will not include the
Propulsion Systems, Buyer Furnished Equipment, SSBFE, or other
equipment selected by the Buyer to be supplied by vendors that do not
offer any enforceable and transferable warranty or other product
support commitments). The Seller shall also obtain enforceable and
transferable Vendor service life policies from landing gear Vendors for
selected structural landing gear elements. The Seller shall supply to
the Buyer such Vendor warranties and Vendor service life policies and
indemnities against patent infringements substantially in the form
summarized in the Supplier Product Support Agreements.
2.2 Vendor's Default
2.2.1 In the event that any Vendor under any warranty or indemnity against
patent infringement obtained by the Seller pursuant to Subparagraph 2.1
hereof defaults in the performance of any material obligation under
such warranty or indemnity against patent infringements with respect to
a Vendor Part, and the Buyer submits within a reasonable time to the
Seller reasonable proof that such default has occurred, then Subclause
12.1 or 13.1, as applicable, of the Agreement will apply to the extent
the same would have been applicable had such Vendor Part been a
Warranted Part except that the warranty period will {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
2.2.2 In the event that any Vendor under any Vendor service life policy
obtained by the Seller pursuant to Subparagraph 2.1 hereof defaults in
the performance of any material obligation with respect thereto, and
the Buyer submits within reasonable time to the Seller reasonable proof
that such default has occurred, then Subclause 12.2 of the Agreement
will apply to the extent the same would have been applicable had such
component, equipment, accessory or part been listed in Exhibit F
attached to the Agreement.
2.2.3 At the Seller's request, and upon the Seller assuming the Vendor's
obligations to the Buyer pursuant to Subparagraphs 2.2.1 and 2.2.2
above, the Buyer will assign to the Seller, and the Seller will be
subrogated to, all of the Buyer's rights against the relevant Vendor,
with respect to and arising by reason of such default and the Buyer
will provide reasonable assistance to enable the Seller to enforce the
rights so assigned, {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
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<PAGE> 247
2.3 Vendor Warranty Backstop
The Vendors' warranty periods listed in the Supplier Product Support
Agreements run up to {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}.
2.4 Further Seller Support of Vendor Commitments
In addition to the provisions of Subclauses 17.2 and 17.3 of the
Agreement, the Seller hereby warrants and the Buyer acknowledges that
the Seller has set up a dedicated Vendor monitoring group in North
America in order to support the Seller's and the Buyer's interface with
the Seller's Vendors. {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}.
2.5 The provisions of Subclauses 12.5, 12.6, and 12.7 of the Agreement
shall apply to Paragraph 2 of this Letter Agreement with respect to
Vendor Warranties and Vendor related commitments.
2.6 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}
3. INTERFACE COMMITMENT
3.1 Interface Problem
If the Buyer experiences any technical problem in the operation of an
Aircraft or its systems due to a malfunction, the cause of which, after
due and reasonable investigation, is not readily identifiable by the
Buyer, but which the Buyer reasonably believes to be attributable to
the design characteristics of one or more components of the Aircraft
(an "Interface Problem"), the Seller will without additional charge to
the Buyer, promptly conduct or have conducted an investigation and
analysis of such problem to determine, if possible, the cause or causes
of the problem and to recommend such corrective action as may be
feasible, provided, however, that if the Interface Problem was due to
or caused by any act or omission of the Buyer in performance of its
obligations hereunder, the Buyer may be requested to pay to the Seller
all reasonable costs and expenses incurred by the Seller during such
investigation, {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}. The Buyer will furnish to the Seller all data
and information in the Buyer's possession relevant to the Interface
Problem and will cooperate with the Seller in the conduct of the
Seller's investigations and such tests as may be required.
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<PAGE> 248
At the conclusion of such investigation the Seller will promptly advise
the Buyer in writing of the Seller's opinion as to the cause or causes
of the Interface Problem and undertake corrective action.
3.2 Seller's Responsibility
If the Interface Problem is primarily attributable to the design of a
Warranted Part, the Seller will correct the design of such Warranted
Part, pursuant to the terms and conditions of Subclause 12.1 of the
Agreement.
3.3 Vendor's Responsibility
If the Interface Problem is primarily attributable to the design of a
component, equipment, accessory or part other than a Warranted Part
("Vendor Component"), the Seller will assist the Buyer in processing
any warranty claim the Buyer may have against the manufacturer of such
Vendor Component {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} and if required and after due and diligent
efforts by the Buyer, ensure that the Vendor {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} remedies
the Interface Problem.
3.4 Joint Responsibility
If the Interface Problem is attributable partially to the design of a
Warranted Part and partially to the design of any Vendor Component, the
Seller will seek a solution to the Interface Problem through
cooperative efforts of the Seller {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT} and any Vendor involved. The
Seller will promptly advise the Buyer of such corrective action as may
be proposed by the Seller {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT} and any such Vendor. Such proposal
will be consistent with any then existing obligations of the Seller
hereunder and of any such Vendor ({CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT}) to the Buyer. Such corrective
action after completion, unless reasonably rejected by the Buyer, will
constitute full satisfaction of any claim the Buyer may have against
either the Seller or any such Vendor ({CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}) with respect to such
Interface Problem.
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<PAGE> 249
3.5 General
3.5.1 All requests under this Paragraph 3 will be directed to the Seller
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} and the affected Vendors.
3.5.2 Except as specifically set forth in this Paragraph 3, this Paragraph 3
will not be deemed to impose on the Seller any obligations not
expressly set forth elsewhere in the Agreement.
3.5.3 All reports, recommendations, data and other documents furnished by the
Seller to the Buyer or by the Buyer to the Seller, pursuant to this
Paragraph 3 will be deemed to be delivered under the Agreement and will
be subject to the terms, covenants and conditions set forth in
Subclause 22.4 of the Agreement.
3.6 The provisions of Subclauses 12.5, 12.6, and 12.7 of the Agreement
shall apply to Paragraph 2 of this Letter Agreement with respect to
interface commitment and Interface Problem.
4. AIRWORTHINESS DIRECTIVE PROTECTION
4.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
4.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
5. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}
6. INEXCUSABLE DELAY
6.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}
LA 6 - 5
<PAGE> 250
6.2 Liquidated Damages
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}
7. CARGO FLOOR PANELS
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}
8. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of the
Buyer hereunder will not be assigned or transferred in any manner
without the prior written consent of the Seller, and any attempted
assignment or transfer in contravention of the provisions of this
Paragraph 8 will be void and of no force or effect.
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and
return a copy to the Seller.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Michele Lascaux
Its: Director Contracts
Accepted and Agreed
AMERICA WEST AIRLINES, INC.
By: /s/ S. L. Johnson
Its: Sr. Vice President - Legal Affairs
LA 6 - 6
<PAGE> 251
LETTER AGREEMENT NO. 7
As of September 12, 1997
America West Airlines, Inc.
Phoenix Sky Harbor International Airport
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: A320-200 PERFORMANCE GUARANTEES
Dear Ladies and Gentlemen:
America West Airlines, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A319/A320 Purchase Agreement, dated as of
even date herewith (the "Agreement"), which covers, among other things, the sale
by the Seller and the purchase by the Buyer of certain Aircraft, under the terms
and conditions set forth in the Agreement. The Buyer and the Seller have agreed
to set forth in this Letter Agreement No. 7 (the "Letter Agreement") certain
additional terms and conditions regarding the sale of the Aircraft. Capitalized
terms used herein and not otherwise defined in this Letter Agreement will have
the meanings assigned thereto in the Agreement. The terms "herein", "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will constitute an
integral, nonseverable part of the Agreement, except that if the Agreement and
this Letter Agreement have specific provisions that are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
The Seller, in its capacity as "Buyer" under its arrangement with the
Manufacturer, has negotiated and obtained the following performance guarantees
from the Manufacturer, in its capacity as "Seller" with respect to the Aircraft,
subject to the terms, conditions, limitations and restrictions all as
hereinafter set out. The Seller hereby assigns to the Buyer and the Buyer hereby
accepts, all of the rights and obligations of the Seller in its capacity as
"Buyer" as aforesaid under the performance guarantees and the Seller subrogates
the Buyer into all such rights and obligations in respect of the Aircraft. The
Seller hereby warrants to the Buyer that it has all the requisite authority to
make the foregoing assignment and effect the foregoing subrogation to and in
favor of the Buyer and that it will not enter into any amendment of the
provisions so assigned without the prior written consent of the Buyer.
Capitalized terms utilized in the following quoted provisions and not otherwise
defined herein shall have the meanings assigned thereto in the Agreement except
that the term "Seller" refers to the Manufacturer and the term "Buyer" refers to
the Seller.
<PAGE> 252
QUOTE
PREAMBLE
The guarantees defined below (the "Guarantees") are applicable to the A320-200
aircraft as described in the Standard Specification Ref. D.000.02000, Issue 4,
dated March 30, 1995 and amended by Specification Change Notices (SCN) for:
(i) the fitting of International Aero Engines V2527-A5 Propulsion Systems,
and
(ii) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} Design Maximum Take Off Weight {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT},
and without taking into account any further changes thereto as provided in the
Agreement. The Guarantees assume execution of the SCN's relating to (i) and (ii)
above and shall be appropriately adjusted pursuant to Paragraph 7 herein to
reflect the A320 Aircraft Specification.
1. GUARANTEED PERFORMANCE
1.1 Speed
Level flight speed at an Aircraft gross weight of {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} lb at a
pressure altitude of 35,000 ft in ISA conditions using a thrust not
exceeding maximum cruise thrust shall not be less than a guaranteed
true Mach number of {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
1.2 Specific Range
1.2.1 The nautical miles per pound of fuel at an Aircraft gross weight of
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} lb at a pressure altitude of 35,000 ft in ISA+10(degree)C
conditions at a true Mach number of 0.78 shall be not less than a
guaranteed value of {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} nm/lb.
LA 7 - 2
<PAGE> 253
1.2.2 The nautical miles per pound of fuel at an Aircraft gross weight of
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} lb at a pressure altitude of 39,000 ft in ISA+10(degree)C
conditions at a true Mach number of 0.78 shall be not less than a
guaranteed value of {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} nm/lb.
1.3 Take-off
1.3.1 FAR take-off field length at an Aircraft gross weight of {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} lb at the
start of ground run at sea level pressure altitude in ISA+15(degree)C
conditions shall be not more than a guaranteed value of {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} ft.
1.3.2 FAR take-off field length at an Aircraft gross weight of {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} lb at the
start of ground run at sea level pressure altitude at an ambient
temperature of 100(degree)F shall be not more than a guaranteed value
of {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} ft.
1.3.3 When operated under the following conditions (representative of the
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} airport):
LA 7 - 3
<PAGE> 254
Pressure altitude: {CONFIDENTIAL
Ambient temperature: MATERIAL
Take-off run available ("TOR"): OMITTED AND
Take-off distance available: FILED
Accelerate-stop distance available: SEPARATELY
Slope: WITH THE
Wind: SECURITIES AND
Obstacle (height and distance from EXCHANGE
end of runway): COMMISSION
PURSUANT TO A
REQUEST FOR
CONFIDENTIAL
TREATMENT}
the maximum permissible weight at the start of ground run shall not be
less than a guaranteed value of {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT} lb.
1.4 Second Segment Climb
The Aircraft shall meet FAR 25 regulations for one engine inoperative
climb after takeoff, undercarriage retracted, at a weight corresponding
to the stated weight at the start of ground run, at the altitude and
temperature, and in the configuration of flap angle and safety speed
required to comply with the performance guaranteed in Subparagraph 1.3
above.
1.5 Altitude Capability
At an Aircraft gross weight of {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT} lb in ISA+15(degree)C conditions
the Aircraft will be capable of maintaining:
- a rate of climb of not less than {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
ft per minute at a true Mach number of {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
using not more than maximum climb thrust with air conditioning
on,
LA 7 - 4
<PAGE> 255
- level flight at a true Mach number of {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
using not more than maximum cruise thrust with air
conditioning on,
- a maneuver of {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} without
buffet onset at a true Mach number of {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
at a guaranteed pressure altitude of not less than {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} ft.
1.6 En-route One Engine Inoperative
The Aircraft shall meet FAR 25 regulations minimum en-route climb with
one engine inoperative and the other operating at the maximum
continuous thrust with anti-icing off at an Aircraft gross weight of
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} lb in the cruise configuration in ISA conditions at a
guaranteed geometric altitude of not less than {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} ft (net
ceiling).
1.7 Approach Climb
The Aircraft shall meet FAR 25 regulations minimum approach climb
gradient with one engine inoperative and the other operating at maximum
go-around thrust and with the undercarriage retracted in
ISA+15(degree)C conditions at an Aircraft gross weight of {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} lb at a
guaranteed pressure altitude of not less than {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} ft.
LA 7 - 5
<PAGE> 256
1.8 Landing Climb
FAR minimum landing climb gradient requirements using the landing flap
configuration required to show compliance with Subparagraph 1.9.1 shall
not be {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} than the approach climb requirements under the
conditions defined in Subparagraph 1.7.
1.9 Landing Field Length
1.9.1 FAR certified dry landing field length at an Aircraft gross weight of
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} lb at sea level pressure altitude shall not be more than a
guaranteed value of {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} ft.
1.9.2 When operated according to FAR regulations and under the following
conditions (representative of the {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT} airport):
Pressure altitude: {CONFIDENTIAL MATERIAL
Ambient temperature: OMITTED AND FILED SEPARATELY
Landing distance available: WITH THE SECURITIES AND
Wind: EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}
the maximum permissible landing weight shall be not less than a
guaranteed value of {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} lb.
2. MISSION GUARANTEES
2.1 The Aircraft will be capable of carrying a guaranteed payload of not
less than {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} lb over a still air stage distance of
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND
LA 7 - 6
<PAGE> 257
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
nautical miles (representative of {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT} with a 71 knot headwind) when
operated under the conditions defined below:
2.1.1 The departure airport conditions are as follows:
Pressure altitude: {CONFIDENTIAL
Ambient temperature: MATERIAL OMITTED AND
Take-off run available: FILED SEPARATELY WITH
Take-off distance available: THE SECURITIES AND
Accelerate-stop distance available: EXCHANGE COMMISSION
Slope: PURSUANT TO A REQUEST
Wind: FOR CONFIDENTIAL
Obstacles (height and distance from TREATMENT}
start of roll):
The destination airport conditions are such as to allow the required
landing weight to be used without restriction. Pressure altitude is
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} ft.
2.1.2 An allowance of 500 lb of fuel is included for take-off and climb to
1,500 ft above the departure airport with acceleration to climb speed
at an ambient temperature of 67(degree)F.
2.1.3 Climb from 1,500 ft above the departure airport up to cruise altitude
using maximum climb thrust and cruise at a fixed Mach number of 0.78 at
a pressure altitude of 35,000 ft and descent to 1,500 ft above the
destination airport are conducted in ISA+10(degree)C conditions. Climb
and descent profiles are respectively 250 knots CAS/300 knots CAS/0.78
Mach number and 0.76 Mach number/300 knots CAS/250 knots CAS.
2.1.4 An allowance of 210 lb of fuel is included for approach and land at the
destination airport.
2.1.5 Stage distance is defined as the distance covered during climb, cruise
and descent as described in Subparagraph 2.1.3 above.
Trip fuel is defined as the fuel burnt during take-off, climb, cruise,
descent and approach and landing as described in Subparagraphs 2.1.2,
2.1.3 and 2.1.4 above.
LA 7 - 7
<PAGE> 258
2.1.6 At the end of approach and land {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT} lb of fuel will remain in the
tanks.
2.2 In carrying a fixed payload of {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT} lb over a still air stage distance
of {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} nautical miles (representative of {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} with a 71
knot headwind) the guaranteed trip fuel shall be not more than
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} lb when operated under the conditions defined in
Subparagraph 2.1 above.
2.3 The Aircraft will be capable of carrying a guaranteed payload of not
less than {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} lb over a still air stage distance of
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} nautical miles (representative of {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} with a 20
knot tailwind) when operated under the conditions defined below:
2.3.1 The departure airport conditions are as described in Subparagraph
1.3.3.
The destination airport conditions are such as to allow the required
landing weight to be used without restriction. Pressure altitude is
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} ft.
2.3.2 An allowance of 600 lb of fuel is included for take-off and climb to
1,500 ft above the departure airport with acceleration to climb speed
at an ambient temperature of 118(degree)F.
LA 7 - 8
<PAGE> 259
2.3.3 Climb from 1,500 ft above the departure airport up to cruise altitude
using maximum climb thrust and cruise at a fixed Mach number of 0.78 at
pressure altitudes of 35,000 ft and 39,000 ft and descent to 1,500 ft
above the destination airport are conducted in ISA conditions. Climb
and descent profiles are respectively 250 knots CAS/300 knots CAS/0.78
Mach number and 0.76 Mach number/300 knots CAS/250 knots CAS.
2.3.4 An allowance of 190 lb of fuel is included for approach and land at the
destination airport.
2.3.5 Stage distance is defined as the distance covered during climb, cruise
and descent as described in Subparagraph 2.3.3 above.
Trip fuel is defined as the fuel burnt during take-off, climb, cruise,
descent and approach and landing as described in Subparagraphs 2.3.2,
2.3.3 and 2.3.4 above.
2.3.6 At the end of approach and land {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT} lb of fuel will remain in the
tanks.
2.4 In carrying a fixed payload of {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT} lb over a still air stage distance
of {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} nautical miles (representative of {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} with a 20
knot tailwind) the guaranteed trip fuel shall be not more than
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} lb when operated under the conditions defined in
Subparagraph 2.3 above.
2.5 The mission guarantees are based on a fixed Operating Weight Empty of
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} lb.
3. MANUFACTURER'S WEIGHT EMPTY
The Seller guarantees a Manufacturer's Weight Empty of {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} lb.
LA 7 - 9
<PAGE> 260
This is the Manufacturer's Weight Empty as defined in Section
13-10.00.00 of the Standard Specification, {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} and is
subject to adjustment as defined in Paragraph 7.
4. NOISE
The Aircraft will be certified in accordance with the Stage 3 noise
level requirements of FAR Part 36 through Amendment 36-20, effective
March 1993 or any successor regulation thereof. The FAR Part 36
certification noise levels of the A320-232 Aircraft will not be more
than {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} EPNdB for take-off with cutback and
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} EPNdB for approach at maximum brake release gross weight of
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} lb and at maximum landing gross weight of {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} lb.
5. GUARANTEE CONDITIONS
5.1 The performance certification requirements for the Aircraft, except
where otherwise noted, will be as stated in Section 02 of the Standard
Specification.
5.2 For the determination of FAR take-off performance a hard dry level
runway surface with no runway strength limitations, no obstacles, zero
wind, atmosphere according to ISA, except as otherwise noted, and the
use of speed brakes, flaps, landing gear and engines in the conditions
liable to provide the best results will be assumed and as followed by
FAR's.
5.2.1 When establishing take-off and second segment performance no air will
be bled from the engines for cabin air conditioning or anti-icing.
5.3 When establishing the approach and landing climb performance cabin air
conditioning will be operative on normal mode but no air will be bled
from the engines for anti-icing.
LA 7 - 10
<PAGE> 261
5.4 The en-route one engine inoperative climb performance will be
established with the amount of engine air bleed associated with the
maximum cabin altitude as specified in Section 21-30.32 of the
Specification and an average ventilation rate not less than the amount
defined in the Specification, but no air will be bled from the engines
for anti- icing. All performance data are based upon normal air
conditioning mode.
5.5 Climb, cruise and descent performance associated with the Guarantees
will include allowances for normal electrical load and for normal
engine air bleed and power extraction associated with maximum cabin
differential pressure as defined in Section 21-30.31 of the
Specification. Cabin air conditioning management during performance
demonstration as described in Subparagraph 6.3 below may be such as to
optimize the Aircraft performance while meeting the normal air
conditioning requirements defined above. Unless otherwise stated no air
will be bled from the engines for anti-icing.
5.6 The engines will be operated using not more than the engine
manufacturer's maximum recommended outputs for take-off, maximum
go-round, maximum continuous, maximum climb and cruise for normal
operation.
5.7 Where applicable the Guarantees assume the use of an approved fuel
having a density of 6.7 lb per US gallon and a lower heating value of
18,590 BTU per lb.
6. GUARANTEE COMPLIANCE
6.1 Compliance with the Guarantees shall be demonstrated using operating
procedures and limitations in accordance with those defined by the
certifying airworthiness authority unless otherwise stated.
6.2 Compliance with the take-off, second segment, approach climb, en-route
one engine inoperative climb, landing and external noise elements of
the Guarantees will be demonstrated with reference to the approved
flight manual.
6.3 Compliance with those parts of the Guarantees defined in Paragraphs 1
and 2 above not covered by the requirements of the certifying
airworthiness authority shall be demonstrated by calculation based on
data obtained during flight tests conducted on one (or more, at the
Seller's discretion) A320 aircraft of the same aerodynamic
configuration as the Aircraft.
6.4 Compliance with the Manufacturer's Weight Empty guarantee defined in
Paragraph 3 shall be demonstrated with reference to a weight compliance
report.
6.5 Data derived from tests will be adjusted as required using conventional
methods of correction, interpolation or extrapolation in accordance
with established aeronautical practices to show compliance with the
Guarantees.
LA 7 - 11
<PAGE> 262
6.6 Compliance with the Guarantees is not contingent on engine performance
defined in the engine manufacturer's specification.
6.7 The Seller undertakes to furnish the Buyer with a report or reports
demonstrating compliance with the Guarantees at the delivery of each of
the Aircraft.
6.8 Notwithstanding the provisions of the Agreement, the warranties
contained in this Letter Agreement shall apply with respect to defects
resulting from non-compliance with the Guarantee, and be limited to
those defects {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
7. ADJUSTMENT OF GUARANTEES
7.1 In the event of any change to any law, governmental regulation or
requirement or interpretation thereof ("Rule Change") by any
governmental agency made subsequent to the date of the Agreement and
such Rule Change affects the Aircraft configuration or performance or
both required to obtain certification the Guarantees shall be modified
to reflect the effect of any such change on the weight or performance
of the Aircraft.
7.2 The Guarantees apply to the Aircraft as described in the preamble to
this Letter Agreement and will be further adjusted in the event of:
i) Any further configuration change which is the subject of a
SCN;
ii) Variation in actual weights of items defined in Section 13-10
of the Standard Specification;
The adjustment mechanism will be reviewed between the Buyer and the
Seller and (i) reflect the weight and payload repercussions (if any)
set forth in each individual SCN signed between the parties pursuant to
the adjustment contemplated in this Paragraph 7, and (ii) use the same
methodology and tolerances as used to compute the numbers set forth in
this Guarantee.
8. EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided in lieu of any and all
other performance and weight guarantees of any nature which may be
stated, referenced or incorporated in the Standard Specification or any
other document.
LA 7 - 12
<PAGE> 263
9. UNDERTAKING REMEDIES
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
10. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
UNQUOTE
11. NEGOTIATED AGREEMENT
The Buyer and the Seller agree that this Letter Agreement has been the
subject of discussion and negotiation by the parties and that other
mutual agreements of the parties set forth in the Agreement and this
Letter Agreement were arrived at in consideration of, inter alia, the
provisions of this Letter Agreement specifically including Paragraphs 8
and 9 of this Letter Agreement.
12. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of the
Buyer hereunder will not be assigned or transferred in any manner
without the prior written consent of the Seller, and any attempted
assignment or transfer in contravention of the provisions of this
Paragraph 12 will be void and of no force or effect.
In consideration of the assignment and subrogation by the Seller of
this Letter Agreement in favor of the Buyer in respect of the Seller's rights
against and obligations to the Manufacturer under the provisions quoted above,
the Buyer hereby accepts such assignment and subrogation and agrees to be bound
by all of the terms, conditions and limitations therein contained. The Buyer and
Seller recognize and agree that all the provisions of Subclauses 12.5, 12.6, and
12.7 of the Agreement shall apply to the foregoing Guarantees, except that if
such Subclauses 12.5, 12.6, and 12.7 and this Letter Agreement have specific
provisions that are inconsistent, the specific provisions contained in this
Letter Agreement will govern.
LA 7 - 13
<PAGE> 264
The guarantees, terms and conditions contained herein are applicable
only as to Aircraft delivered with International Aero Engines V2527-A5 engines
and shall be null, void and of no effect as to any other engines and as to
International Aero Engines V2527-A5 engines not delivered with the Aircraft.
If the foregoing terms and conditions are satisfactory, please indicate
your acceptance thereof by signing in the place indicated below.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Michele Lascaux
Its: Director Contracts
Accepted and Agreed
AMERICA WEST AIRLINES, INC.
By: /s/ S. L. Johnson
Its: Sr. Vice President - Legal Affairs
LA 7 - 14
<PAGE> 265
LETTER AGREEMENT NO. 8
As of September 12, 1997
America West Airlines, Inc.
Phoenix Sky Harbor International Airport
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: A319-100 PERFORMANCE GUARANTEES
Dear Ladies and Gentlemen:
America West Airlines, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A319/A320 Purchase Agreement, dated as of
even date herewith (the "Agreement"), which covers, among other things, the sale
by the Seller and the purchase by the Buyer of certain Aircraft, under the terms
and conditions set forth in the Agreement. The Buyer and the Seller have agreed
to set forth in this Letter Agreement No. 8 (the "Letter Agreement") certain
additional terms and conditions regarding the sale of the Aircraft. Capitalized
terms used herein and not otherwise defined in this Letter Agreement will have
the meanings assigned thereto in the Agreement. The terms "herein", "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will constitute an
integral, nonseverable part of the Agreement, except that if the Agreement and
this Letter Agreement have specific provisions that are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
The Seller, in its capacity as "Buyer" under its arrangement with the
Manufacturer, has negotiated and obtained the following performance guarantees
from the Manufacturer, in its capacity as "Seller" with respect to the Aircraft,
subject to the terms, conditions, limitations and restrictions all as
hereinafter set out. The Seller hereby assigns to the Buyer and the Buyer hereby
accepts, all of the rights and obligations of the Seller in its capacity as
"Buyer" as aforesaid under the performance guarantees and the Seller subrogates
the Buyer into all such rights and obligations in respect of the Aircraft. The
Seller hereby warrants to the Buyer that it has all the requisite authority to
make the foregoing assignment and effect the foregoing subrogation to and in
favor of the Buyer and that it will not enter into any amendment of the
provisions so assigned without the prior written consent of the Buyer.
Capitalized terms utilized in the following quoted provisions and not otherwise
defined herein shall have the meanings assigned thereto in the Agreement except
that the term "Seller" refers to the Manufacturer and the term "Buyer" refers to
the Seller.
<PAGE> 266
QUOTE
PREAMBLE
The guarantees defined below (the "Guarantees") are applicable to the A319-100
aircraft as described in the Standard Specification Ref. J.000.01000, Issue 3,
dated March 29, 1995, including Temporary Revision N(degrees)1, dated August 25,
1995, and amended by Specification Change Notices (SCN) for:
(i) the fitting of International Aero Engines V2524-A5 Propulsion Systems,
and
(ii) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} Design Maximum Take Off Weight {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT},
and without taking into account any further changes thereto as provided in the
Agreement. The Guarantees assume execution of the SCN's relating to (i) and (ii)
above and shall be appropriately adjusted pursuant to Paragraph 7 herein to
reflect the A319 Aircraft Specification.
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
1. GUARANTEED PERFORMANCE
1.1 Speed
Level flight speed at an Aircraft gross weight of {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} lb at a
pressure altitude of 35,000 ft in ISA conditions using a thrust not
exceeding maximum cruise thrust shall not be less than a guaranteed
true Mach number of {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
1.2 Specific Range
1.2.1 The nautical miles per pound of fuel at an Aircraft gross weight of
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} lb at a pressure altitude of 35,000 ft in ISA+10(degrees)C
conditions at a true Mach number of 0.78 shall be not less than a
guaranteed value of {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} nm/lb.
LA 8 - 2
<PAGE> 267
1.2.2 The nautical miles per pound of fuel at an Aircraft gross weight of
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} lb at a pressure altitude of 39,000 ft in ISA+10(degrees)C
conditions at a true Mach number of 0.78 shall be not less than a
guaranteed value of {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} nm/lb.
1.3 Take-off
1.3.1 FAR take-off field length at an Aircraft gross weight of {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} lb at the
start of ground run at sea level pressure altitude in ISA+15(degrees)C
conditions shall be not more than a guaranteed value of {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} ft.
1.3.2 FAR take-off field length at an Aircraft gross weight of {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} lb at the
start of ground run at sea level pressure altitude at an ambient
temperature of 100(degrees)F shall be not more than a guaranteed value
of {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} ft.
1.3.3 When operated under the following conditions (representative of the
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} airport):
LA 8 - 3
<PAGE> 268
<TABLE>
<S> <C>
Pressure altitude: {CONFIDENTIAL
MATERIAL OMITTED AND
Ambient temperature: FILED SEPARATELY WITH
THE SECURITIES AND
Take-off run available ("TOR"): EXCHANGE COMMISSION
PURSUANT TO A
Take-off distance available: REQUEST FOR
CONFIDENTIAL
Accelerate-stop distance available: TREATMENT}
Slope:
Wind:
Obstacle (height and distance
from end of runway):
</TABLE>
the maximum permissible weight at the start of ground run shall not be
less than a guaranteed value of {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT} lb.
1.4 Second Segment Climb
The Aircraft shall meet FAR 25 regulations for one engine inoperative
climb after takeoff, undercarriage retracted, at a weight corresponding
to the stated weight at the start of ground run, at the altitude and
temperature, and in the configuration of flap angle and safety speed
required to comply with the performance guaranteed in Subparagraph 1.3
above.
1.5 Altitude Capability
At an Aircraft gross weight of {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT} lb in ISA+15(degrees)C conditions
the Aircraft will be capable of maintaining:
- a rate of climb of not less than {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
ft per minute at a true Mach number of {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
using not more than maximum climb thrust with air conditioning
on,
- level flight at a true Mach number of {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
using not more than maximum cruise thrust with air
conditioning on,
LA 8 - 4
<PAGE> 269
- a maneuver of {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} without
buffet onset at a true Mach number of {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
at a guaranteed pressure altitude of not less than {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} ft.
1.6 En-route One Engine Inoperative
The Aircraft shall meet FAR 25 regulations minimum en-route climb with
one engine inoperative and the other operating at the maximum
continuous thrust with anti-icing off at an Aircraft gross weight of
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} lb in the cruise configuration in ISA conditions at a
guaranteed geometric altitude of not less than {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} ft (net
ceiling).
1.7 Approach Climb
The Aircraft shall meet FAR 25 regulations minimum approach climb
gradient with one engine inoperative and the other operating at
maximum go-around thrust and with the undercarriage retracted in
ISA+15(degrees)C conditions at an Aircraft gross weight of
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} lb at a guaranteed pressure altitude of not less than
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} ft.
1.8 Landing Climb
FAR minimum landing climb gradient requirements using the landing flap
configuration required to show compliance with Subparagraph 1.9.1 shall
not be {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} than the approach climb requirements under the
conditions defined in Subparagraph 1.7.
LA 8 - 5
<PAGE> 270
1.9 Landing Field Length
1.9.1 FAR certified dry landing field length at an Aircraft gross weight of
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} lb at sea level pressure altitude shall not be more than a
guaranteed value of {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} ft.
1.9.2 When operated according to FAR regulations and under the following
conditions (representative of the {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT} airport):
<TABLE>
<S> <C>
Pressure altitude: {CONFIDENTIAL
MATERIAL OMITTED AND
Ambient temperature: FILED SEPARATELY WITH
THE SECURITIES AND
Landing distance available: EXCHANGE COMMISSION
PURSUANT TO A REQUEST
Wind: FOR CONFIDENTIAL
TREATMENT}
</TABLE>
the maximum permissible landing weight shall be not less than a
guaranteed value of {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} lb.
2. MISSION GUARANTEES
2.1 The Aircraft will be capable of carrying a guaranteed payload of not
less than {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} lb over a still air stage distance of
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} nautical miles (representative of {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} with a 71
knot headwind) when operated under the conditions defined below:
LA 8 - 6
<PAGE> 271
2.1.1 The departure airport conditions are as follows:
<TABLE>
<S> <C>
Pressure altitude: {CONFIDENTIAL MATERIAL
OMITTED AND FILED
Ambient temperature: SEPARATELY WITH THE
SECURITIES AND
Take-off run available: EXCHANGE COMMISSION
PURSUANT TO A REQUEST
Take-off distance available: FOR CONFIDENTIAL
TREATMENT}
Accelerate-stop distance available:
Slope:
Wind:
Obstacles (height and distance from
start of roll):
</TABLE>
The destination airport conditions are such as to allow the required
landing weight to be used without restriction. Pressure altitude is
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} ft.
2.1.2 An allowance of 610 lb of fuel is included for take-off and climb to
1,500 ft above the departure airport with acceleration to climb speed
at an ambient temperature of 67(degrees)F.
2.1.3 Climb from 1,500 ft above the departure airport up to cruise altitude
using maximum climb thrust and cruise at a fixed Mach number of 0.78 at
pressure altitude of 35,000 ft and 39,000 ft and descent to 1,500 ft
above the destination airport are conducted in ISA+10(degrees)C
conditions. Climb and descent profiles are respectively 250 knots
CAS/300 knots CAS/0.78 Mach number and 0.76 Mach number/300 knots
CAS/250 knots CAS.
2.1.4 An allowance of 250 lb of fuel is included for approach and land at the
destination airport.
2.1.5 Stage distance is defined as the distance covered during climb, cruise
and descent as described in Subparagraph 2.1.3 above.
Trip fuel is defined as the fuel burnt during take-off, climb, cruise,
descent and approach and landing as described in Subparagraphs 2.1.2,
2.1.3 and 2.1.4 above.
2.1.6 At the end of approach and land {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT} lb of fuel will remain in the
tanks.
LA 8 - 7
<PAGE> 272
2.2 In carrying a fixed payload of {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT} lb over a still air stage distance
of {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} nautical miles (representative of {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} with a 71
knot headwind) the guaranteed trip fuel shall be not more than
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} lb when operated under the conditions defined in
Subparagraph 2.1 above.
2.3 The Aircraft will be capable of carrying a guaranteed payload of not
less than {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} lb over a still air stage distance of
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} nautical miles (representative of {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} with a 37
knot headwind) when operated under the conditions defined below:
2.3.1 The departure airport conditions are as described in Subparagraph
1.3.3.
The destination airport conditions are such as to allow the required
landing weight to be used without restriction. Pressure altitude is
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} ft.
2.3.2 An allowance of 760 lb of fuel is included for take-off and climb to
1,500 ft above the departure airport with acceleration to climb speed
at an ambient temperature of 118(degrees)F.
2.3.3 Climb from 1,500 ft above the departure airport up to cruise altitude
using maximum climb thrust and cruise at a fixed Mach number of 0.78 at
pressure altitudes of 35,000 ft and 39,000 ft and descent to 1,500 ft
above the destination airport are conducted in ISA conditions. Climb
and descent profiles are respectively 250 knots CAS/300 knots CAS/0.78
Mach number and 0.76 Mach number/300 knots CAS/250 knots CAS.
2.3.4 An allowance of 210 lb of fuel is included for approach and land at the
destination airport.
LA 8 - 8
<PAGE> 273
2.3.5 Stage distance is defined as the distance covered during climb, cruise
and descent as described in Subparagraph 2.3.3 above.
Trip fuel is defined as the fuel burnt during take-off, climb, cruise,
descent and approach and landing as described in Subparagraphs 2.3.2,
2.3.3 and 2.3.4 above.
2.3.6 At the end of approach and land {CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT} lb of fuel will remain in the
tanks.
2.4 In carrying a fixed payload of {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT} lb over a still air stage distance
of {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} nautical miles (representative of {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} with a 37
knot headwind) the guaranteed trip fuel shall be not more than
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} lb when operated under the conditions defined in
Subparagraph 2.3 above.
2.5 The mission guarantees are based on a fixed Operating Weight Empty of
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} lb.
3. MANUFACTURER'S WEIGHT EMPTY
The Seller guarantees a Manufacturer's Weight Empty of {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} lb.
This is the Manufacturer's Weight Empty as defined in Section
13-10.00.00 of the Standard Specification, {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} and is
subject to adjustment as defined in Paragraph 7.
LA 8 - 9
<PAGE> 274
4. NOISE
The Aircraft will be certified in accordance with the Stage 3 noise
level requirements of FAR Part 36 through Amendment 36-20, effective
March 1993 or any successor regulation thereof. The FAR Part 36
certification noise levels of the A319-132 Aircraft will not be more
than {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT} EPNdB for take-off with cutback and
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} EPNdB for approach at maximum brake release gross weight of
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} lb and at maximum landing gross weight of {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} lb.
5. GUARANTEE CONDITIONS
5.1 The performance certification requirements for the Aircraft, except
where otherwise noted, will be as stated in Section 02 of the Standard
Specification.
5.2 For the determination of FAR take-off performance a hard dry level
runway surface with no runway strength limitations, no obstacles, zero
wind, atmosphere according to ISA, except as otherwise noted, and the
use of speed brakes, flaps, landing gear and engines in the conditions
liable to provide the best results will be assumed and as followed by
FAR's.
5.2.1 When establishing take-off and second segment performance no air will
be bled from the engines for cabin air conditioning or anti-icing.
5.3 When establishing the approach and landing climb performance cabin air
conditioning will be operative on normal mode but no air will be bled
from the engines for anti-icing.
5.4 The en-route one engine inoperative climb performance will be
established with the amount of engine air bleed associated with the
maximum cabin altitude as specified in Section 21-30.32 of the
Specification and an average ventilation rate not less than the amount
defined in the Specification, but no air will be bled from the engines
for anti-icing. All performance data are based upon normal air
conditioning mode.
5.5 Climb, cruise and descent performance associated with the Guarantees
will include allowances for normal electrical load and for normal
engine air bleed and power extraction associated with maximum cabin
differential pressure as defined in Section 21-30.31 of the
Specification. Cabin air conditioning management during performance
LA 8 - 10
<PAGE> 275
demonstration as described in Subparagraph 6.3 below may be such as to
optimize the Aircraft performance while meeting the normal air
conditioning requirements defined above. Unless otherwise stated no air
will be bled from the engines for anti-icing.
5.6 The engines will be operated using not more than the engine
manufacturer's maximum recommended outputs for take-off, maximum
go-round, maximum continuous, maximum climb and cruise for normal
operation.
5.7 Where applicable the Guarantees assume the use of an approved fuel
having a density of 6.7 lb per US gallon and a lower heating value of
18,590 BTU per lb.
6. GUARANTEE COMPLIANCE
6.1 Compliance with the Guarantees shall be demonstrated using operating
procedures and limitations in accordance with those defined by the
certifying airworthiness authority unless otherwise stated.
6.2 Compliance with the take-off, second segment, approach climb, en-route
one engine inoperative climb, landing and external noise elements of
the Guarantees will be demonstrated with reference to the approved
flight manual.
6.3 Compliance with those parts of the Guarantees defined in Paragraphs 1
and 2 above not covered by the requirements of the certifying
airworthiness authority shall be demonstrated by calculation based on
data obtained during flight tests conducted on one (or more, at the
Seller's discretion) A319 aircraft of the same aerodynamic
configuration as the Aircraft.
6.4 Compliance with the Manufacturer's Weight Empty guarantee defined in
Paragraph 3 shall be demonstrated with reference to a weight compliance
report.
6.5 Data derived from tests will be adjusted as required using conventional
methods of correction, interpolation or extrapolation in accordance
with established aeronautical practices to show compliance with the
Guarantees.
6.6 Compliance with the Guarantees is not contingent on engine performance
defined in the engine manufacturer's specification.
6.7 The Seller undertakes to furnish the Buyer with a report or reports
demonstrating compliance with the Guarantees at the delivery of each of
the Aircraft.
6.8 Notwithstanding the provisions of the Agreement, the warranties
contained in this Letter Agreement shall apply with respect to defects
resulting from non-compliance with the Guarantee, and be limited to
those defects {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
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<PAGE> 276
7. ADJUSTMENT OF GUARANTEES
7.1 In the event of any change to any law, governmental regulation or
requirement or interpretation thereof ("Rule Change") by any
governmental agency made subsequent to the date of the Agreement and
such Rule Change affects the Aircraft configuration or performance or
both required to obtain certification the Guarantees shall be modified
to reflect the effect of any such change on the weight or performance
of the Aircraft.
7.2 The Guarantees apply to the Aircraft as described in the preamble to
this Letter Agreement and will be further adjusted in the event of:
i) Any further configuration change which is the subject of a
SCN;
ii) Variation in actual weights of items defined in Section 13-10
of the Standard Specification;
The adjustment mechanism will be reviewed between the Buyer and the
Seller and (i) reflect the weight and payload repercussions (if any)
set forth in each individual SCN signed between the parties pursuant to
the adjustment contemplated in this Paragraph 7, and (ii) use the same
methodology and tolerances as used to compute the numbers set forth in
this Guarantee.
8. EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided in lieu of any and all
other performance and weight guarantees of any nature which may be
stated, referenced or incorporated in the Standard Specification or any
other document.
9. UNDERTAKING REMEDIES
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
10. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
LA 8 - 12
<PAGE> 277
11. NEGOTIATED AGREEMENT
The Buyer and the Seller agree that this Letter Agreement has been the
subject of discussion and negotiation by the parties and that other
mutual agreements of the parties set forth in the Agreement and this
Letter Agreement were arrived at in consideration of, inter alia, the
provisions of this Letter Agreement specifically including Paragraphs 8
and 9 of this Letter Agreement.
UNQUOTE
12. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of the
Buyer hereunder will not be assigned or transferred in any manner
without the prior written consent of the Seller, and any attempted
assignment or transfer in contravention of the provisions of this
Paragraph 12 will be void and of no force or effect.
In consideration of the assignment and subrogation by the Seller of
this Letter Agreement in favor of the Buyer in respect of the Seller's rights
against and obligations to the Manufacturer under the provisions quoted above,
the Buyer hereby accepts such assignment and subrogation and agrees to be bound
by all of the terms, conditions and limitations therein contained. The Buyer and
Seller recognize and agree that all the provisions of Subclauses 12.5, 12.6, and
12.7 of the Agreement shall apply to the foregoing Guarantees, except that if
such Subclauses 12.5, 12.6, and 12.7 and this Letter Agreement have specific
provisions that are inconsistent, the specific provisions contained in this
Letter Agreement will govern.
The guarantees, terms and conditions contained herein are applicable
only as to Aircraft delivered with International Aero Engines V2524-A5 engines
and shall be null, void and of no effect as to any other engines and as to
International Aero Engines V2524-A5 engines not delivered with the Aircraft.
LA 8 - 13
<PAGE> 278
If the foregoing terms and conditions are satisfactory, please indicate
your acceptance thereof by signing in the place indicated below.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Michele Lascaux
-------------------
Its: Director Contracts
Accepted and Agreed
AMERICA WEST AIRLINES, INC.
By: /s/ S. L. Johnson
-----------------------------------
Its: Sr. Vice President - Legal Affairs
LA 8 - 14
<PAGE> 279
LETTER AGREEMENT NO. 9
As of September 12, 1997
America West Airlines Inc.
Sky Harbor International Airport
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
Dear Ladies and Gentlemen:
America West Airlines, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A319/A320 Purchase Agreement, dated as of
even date herewith (the "Agreement"), which covers, among other matters, the
sale by the Seller and the purchase by the Buyer of certain Aircraft, under the
terms and conditions set forth in the Agreement. The Buyer and the Seller have
agreed to set forth in this Letter Agreement No. 9 (the "Letter Agreement")
certain additional terms and conditions regarding the sale of the Aircraft.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
will have the meanings assigned thereto in the Agreement. The terms "herein,"
"hereof" and "hereunder" and words of similar import refer to this Letter
Agreement.
Both parties agree that this Letter Agreement will constitute an integral,
nonseverable part of the Agreement, except that if the Agreement and this Letter
Agreement have specific provisions that are inconsistent, the specific
provisions contained in this Letter Agreement will govern.
The Seller, in its capacity as "Buyer" under its arrangement with the
Manufacturer, has negotiated and obtained the following {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} guarantees from the
Manufacturer, in its capacity as "Seller" with respect to the Aircraft, subject
to the terms, conditions, limitations and restrictions all as hereinafter set
out. The Seller hereby assigns to the Buyer and the Buyer hereby accepts all the
rights and obligations of the Seller, in its capacity as "Buyer" as aforesaid,
under the {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} guarantees and the Seller subrogates the Buyer into all such rights
and obligations in respect of the Aircraft. The Seller hereby warrants to the
Buyer that it has all the requisite authority to make the foregoing assignment
and effect the foregoing subrogation to and in favour of the Buyer and that it
will not enter into any amendment of the
<PAGE> 280
provisions so assigned without the prior written consent of the Buyer.
Capitalized terms used in the following quoted provisions and not otherwise
defined herein shall have the meanings assigned thereto in the Agreement except
that the term "Seller" refers to the Manufacturer and the term "Buyer" refers to
the Seller.
QUOTE
PREAMBLE
The guarantee defined below (the "Guarantee") are applicable to the A320-200
aircraft as described in the Standard Specification Ref. D.000.02000, Issue 4,
dated March 30, 1995, and amended by Specification Change Notices (SCN) for:
(i) the fitting of International Aero Engines V2527-A5 Propulsion Systems, and
(ii) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
Design Maximum Take Off Weight {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT},
and without taking into account any further changes thereto as provided in the
Agreement.
The Guarantees assume execution of the SCNs relating to (i) and (ii) above, and
shall be adjusted, if required, to reflect the A320 Aircraft Specification as
further described in Paragraph 7 of Letter Agreement No. 7. Unless set forth to
the contrary, the term Aircraft set forth in this Guarantee shall refer to the
A320 Aircraft and the terms Airframe to the A320 Airframe.
1. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} GUARANTEE
1.1 This Guarantee shall apply to the Aircraft as defined in the preamble
of this Letter Agreement and shall be subject to the conditions defined
in Paragraph 6 below.
The term Fleet ("Fleet") shall mean the whole of the Buyer's fleet of
A320 Aircraft, {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}, delivered under the Agreement.
1.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
LA 9 - 2
<PAGE> 281
1.3 The Seller guarantees to the Buyer that {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} shall not be more
than {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}.
1.4 The Seller guarantees to the Buyer that {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
2. CONDITIONS
2.1 The Guarantee is contingent upon the Buyer:
2.1.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT};
2.1.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT};
2.1.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT};
2.1.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
LA 9 - 3
<PAGE> 282
2.5 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
3. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} COMPLIANCE DEMONSTRATION PROCEDURE
The following and preceding procedures summarize the Buyer's and the
Seller's requirements with respect to this Letter Agreement. Such
procedures may be subject to refinement and further details by
agreement.
These agreed procedures and all relevant information shall be
incorporated in an administration document to be jointly developed.
3.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
3.1.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
3.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
4.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
LA 9 - 4
<PAGE> 283
4.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4.5 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
4.6 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4.7 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4.8 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
5. REMEDIES - RECONCILIATION
5.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
5.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}:
5.2.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
5.2.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
LA 9 - 5
<PAGE> 284
5.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
5.3.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
5.3.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
6. TERMINATION/EXTENSION
6.1 Notwithstanding the provisions of Subparagraph 1.2 above the Guarantee
and all obligations thereunder shall immediately terminate if:
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
6.2 Notwithstanding the foregoing, the Guarantee and all obligations
thereunder may be terminated {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}.
6.3 Notwithstanding the foregoing in the event that the {CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
7. LIMITATION OF DAMAGES AND EXCLUSION OF BENEFITS
7.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
7.2 The intent of this Letter Agreement is to provide specified benefits to
the Buyer as a result of the failure of the Aircraft to comply with the
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} stipulated in the Guarantee. It is not the intent, however,
to duplicate benefits provided to the Buyer by the Seller under any
other applicable guarantee as a result of the same
LA 9 - 6
<PAGE> 285
failure. Therefore, notwithstanding the terms and conditions of this
Guarantee, if the terms of this Guarantee should make duplicate
benefits available to the Buyer, the Buyer may elect to receive
benefits under this Guarantee or any other guarantee but not both.
8. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
8.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
8.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
8.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
8.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
9. PROCEDURAL RESPONSIBILITIES
Notwithstanding the settlement of the Guarantee defined in this Letter
Agreement the Seller shall not bear any responsibility or cost related
to activities associated with the execution of this Letter Agreement
unless otherwise specified in this Letter Agreement.
UNQUOTE
10. NEGOTIATED AGREEMENT
In consideration of the assignment and subrogation by the Seller under
this Letter Agreement in favour of the Buyer in respect of the Seller's
rights against and obligations to the Manufacturer under the provisions
quoted above, the Buyer hereby accepts such assignment and subrogation
and agrees to be bound by all of the terms, conditions and limitations
therein contained. The Buyer and Seller recognize and agree that all
the provisions of Subclauses 12.5, 12.6, and 12.7 of the Agreement
shall apply to the foregoing {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT} guarantees, except that if such
Subclauses 12.5, 12.6, and 12.7 and this Letter Agreement have special
provisions that are inconsistent, the specific provisions contained in
this Letter Agreement will govern.
LA 9 - 7
<PAGE> 286
The guarantees, terms and conditions contained herein are applicable
only as to A320 Aircraft delivered with International Aero Engines
V2527-A5 engines and shall be null, void and of no effect as to any
other engines and as to International Aero Engines V2527-A5 engines
not delivered with the A320 Aircraft.
11. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of the
Buyer hereunder will not be assigned or transferred in any manner
without the prior written consent of the Seller, and any attempted
assignment or transfer in contravention of the provisions of this
Paragraph 11 will be void and of no force or effect.
If the foregoing sets forth our understanding, please execute two (2)
originals in the space provided below and return one (1) original of
this Letter Agreement to the Seller.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Michele Lascaux
-------------------
Its: Director Contracts
Accepted and Agreed
AMERICA WEST AIRLINES, INC.
By: /s/ S. L. Johnson
-----------------------------------
Its: Sr. Vice President - Legal Affairs
LA 9 - 8
<PAGE> 287
APPENDIX A
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
<PAGE> 288
LETTER AGREEMENT NO. 10
As of September 12, 1997
America West Airlines Inc.
Sky Harbor International Airport
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re:{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
Dear Ladies and Gentlemen:
America West Airlines, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A319/A320 Purchase Agreement, dated as of
even date herewith (the "Agreement"), which covers, among other matters, the
sale by the Seller and the purchase by the Buyer of certain Aircraft, under the
terms and conditions set forth in the Agreement. The Buyer and the Seller have
agreed to set forth in this Letter Agreement No. 10 (the "Letter Agreement")
certain additional terms and conditions regarding the sale of the Aircraft.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
will have the meanings assigned thereto in the Agreement. The terms "herein,"
"hereof" and "hereunder" and words of similar import refer to this Letter
Agreement.
Both parties agree that this Letter Agreement will constitute an integral,
nonseverable part of the Agreement, except that if the Agreement and this Letter
Agreement have specific provisions that are inconsistent, the specific
provisions contained in this Letter Agreement will govern.
The Seller, in its capacity as "Buyer" under its arrangement with the
Manufacturer, has negotiated and obtained the following {CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT} guarantees from the
Manufacturer, in its capacity as "Seller" with respect to the Aircraft, subject
to the terms, conditions, limitations and restrictions all as hereinafter set
out. The Seller hereby assigns to the Buyer and the Buyer hereby accepts all the
rights and obligations of the Seller, in its capacity as "Buyer" as aforesaid,
under the {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} guarantees and the Seller subrogates
<PAGE> 289
the Buyer into all such rights and obligations in respect of the Aircraft. The
Seller hereby warrants to the Buyer that it has all the requisite authority to
make the foregoing assignment and effect the foregoing subrogation to and in
favour of the Buyer and that it will not enter into any amendment of the
provisions so assigned without the prior written consent of the Buyer.
Capitalized terms used in the following quoted provisions and not otherwise
defined herein shall have the meanings assigned thereto in the Agreement except
that the term "Seller" refers to the Manufacturer and the term "Buyer" refers to
the Seller.
QUOTE
PREAMBLE
The guarantee defined below (the "Guarantee") are applicable to the A319-100
aircraft as described in the Standard Specification Ref. J.000.01000, Issue 3,
dated March 29, 1995, including Temporary Revision No. 1, dated August 25, 1995,
and amended by Specification Change Notices (SCN) for:
(i) the fitting of International Aero Engines V2524-A5 Propulsion Systems, and
(ii) {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
Design Maximum Take Off Weight {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT},
and without taking into account any further changes thereto as provided in the
Agreement.
The Guarantees assume execution of the SCNs relating to (i) and (ii) above, and
shall be adjusted, if required, to reflect the A319 Aircraft Specification as
further described in Paragraph 7 of Letter Agreement No. 8. Unless set forth to
the contrary, the term Aircraft set forth in this Guarantee shall refer to the
A319 Aircraft and the terms Airframe to the A319 Airframe.
1. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} GUARANTEE
1.1 This Guarantee shall apply to the Aircraft as defined in the preamble
of this Letter Agreement and shall be subject to the conditions defined
in Paragraph 6 below.
LA 10 - 2
<PAGE> 290
The term Fleet ("Fleet") shall mean the whole of the Buyer's fleet of
A319 Aircraft, {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT}, delivered under the Agreement.
1.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
1.3 The Seller guarantees to the Buyer that {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
1.4 The Seller guarantees to the Buyer that {CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}.
2. CONDITIONS
2.1 The Guarantee is contingent upon the Buyer:
2.1.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT};
2.1.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT};
2.1.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT};
2.1.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
LA 10 - 3
<PAGE> 291
2.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
2.5 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
3. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} COMPLIANCE DEMONSTRATION PROCEDURE
The following and preceding procedures summarize the Buyer's and the
Seller's requirements with respect to this Letter Agreement. Such
procedures may be subject to refinement and further details by
agreement.
These agreed procedures and all relevant information shall be
incorporated in an administration document to be jointly developed.
3.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
3.1.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
LA 10 - 4
<PAGE> 292
3.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
4.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4.5 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4.6 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4.7 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
4.8 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
LA 10 - 5
<PAGE> 293
5. REMEDIES - RECONCILIATION
5.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
5.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}:
5.2.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
5.2.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
5.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
5.3.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
5.3.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
6. TERMINATION/EXTENSION
6.1 Notwithstanding the provisions of Subparagraph 1.2 above the Guarantee
and all obligations thereunder shall immediately terminate if:
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
LA 10 - 6
<PAGE> 294
6.2 Notwithstanding the foregoing, the Guarantee and all obligations
thereunder may be terminated {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT}.
6.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
7. LIMITATION OF DAMAGES AND EXCLUSION OF BENEFITS
7.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
7.2 The intent of this Letter Agreement is to provide specified benefits to
the Buyer as a result of the failure of the Aircraft to comply with the
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT} stipulated in the Guarantee. It is not the intent, however,
to duplicate benefits provided to the Buyer by the Seller under any
other applicable guarantee as a result of the same failure. Therefore,
notwithstanding the terms and conditions of this Guarantee, if the
terms of this Guarantee should make duplicate benefits available to the
Buyer, the Buyer may elect to receive benefits under this Guarantee or
any other guarantee but not both.
8. {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}
8.1 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
8.2 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
8.3 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
LA 10 - 7
<PAGE> 295
8.4 {CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT}.
9. PROCEDURAL RESPONSIBILITIES
Notwithstanding the settlement of the Guarantee defined in this Letter
Agreement the Seller shall not bear any responsibility or cost related
to activities associated with the execution of this Letter Agreement
unless otherwise specified in this Letter Agreement.
UNQUOTE
10. NEGOTIATED AGREEMENT
In consideration of the assignment and subrogation by the Seller under
this Letter Agreement in favour of the Buyer in respect of the Seller's
rights against and obligations to the Manufacturer under the provisions
quoted above, the Buyer hereby accepts such assignment and subrogation
and agrees to be bound by all of the terms, conditions and limitations
therein contained. The Buyer and Seller recognize and agree that all
the provisions of Subclauses 12.5, 12.6, and 12.7 of the Agreement
shall apply to the foregoing {CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT} guarantees, except that if such
Subclauses 12.5, 12.6, and 12.7 and this Letter Agreement have special
provisions that are inconsistent, the specific provisions contained in
this Letter Agreement will govern.
The guarantees, terms and conditions contained herein are applicable
only as to A319 Aircraft delivered with International Aero Engines
V2524-A5 engines and shall be null, void and of no effect as to any
other engines and as to International Aero Engines V2524-A5 engines not
delivered with the A319 Aircraft.
11. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or of the
Agreement, this Letter Agreement and the rights and obligations of the
Buyer hereunder will not be assigned or transferred in any manner
without the prior written consent of the Seller, and any attempted
assignment or transfer in contravention of the provisions of this
Paragraph 11 will be void and of no force or effect.
If the foregoing sets forth our understanding, please execute two (2)
originals in the space provided below and return one (1) original of
this Letter Agreement to the Seller.
LA 10 - 8
<PAGE> 296
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Michele Lascaux
-------------------
Its: Director Contracts
Accepted and Agreed
AMERICA WEST AIRLINES, INC.
By: /s/ S. L. Johnson
-----------------------------------
Its: Sr. Vice President - Legal Affairs
LA 10 - 9
<PAGE> 297
APPENDIX A
{CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT}
