UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
[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
--------- ---------
US Airways Group, Inc.
(Commission file number: 1-8444)
and
US Airways, Inc.
(Commission file number: 1-8442)
(Exact names of registrants as specified in their charters)
Delaware US Airways Group, Inc. 54-1194634
(State of incorporation US Airways, Inc. 53-0218143
of both registrants) (I.R.S. Employer Identification Numbers)
US Airways Group, Inc.
2345 Crystal Drive, Arlington, Virginia 22227
(Address of principal executive offices)
(703) 872-5306
(Registrant's telephone number, including area code)
US Airways, Inc.
2345 Crystal Drive, Arlington, Virginia 22227
(Address of principal executive offices)
(703) 872-7000
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrants (1) have filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934 during the preceding 12 months (or
for such shorter period that the registrants were required to file
such reports), and (2) have been subject to such filing
requirements for the past 90 days.
Yes X No
---- ----
As of October 31, 1997, there were outstanding approximately
91,284,000 shares of common stock of US Airways Group, Inc. and
1,000 shares of common stock of US Airways, Inc.
The registrant US Airways, Inc. meets the conditions set
forth in General Instructions H(1)(a) and (b) of Form 10-Q and is
therefore participating in the filing of this form with the
reduced disclosure format.
<PAGE>
US Airways Group, Inc.
and
US Airways, Inc.
QUARTERLY REPORT ON FORM 10-Q
TABLE OF CONTENTS
PART I. FINANCIAL INFORMATION Page
----
Item 1A. Financial Statements - US Airways Group, Inc.
Condensed Consolidated Statements of Operations
- Three Months and Nine Months Ended
September 30, 1997 and 1996 1
Condensed Consolidated Balance Sheets
- September 30, 1997 and December 31, 1996 2
Condensed Consolidated Statements of Cash Flows
- Nine Months Ended September 30, 1997 and 1996 3
Notes to Condensed Consolidated Financial Statements 4
Item 1B. Financial Statements - US Airways, Inc.
Condensed Consolidated Statements of Operations
- Three Months and Nine Months Ended
September 30, 1997 and 1996 9
Condensed Consolidated Balance Sheets
- September 30, 1997 and December 31, 1996 10
Condensed Consolidated Statements of Cash Flows
- Nine Months Ended September 30, 1997 and 1996 11
Notes to Condensed Consolidated Financial Statements 12
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations 13
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 29
Item 6. Exhibits and Reports on Form 8-K 29
SIGNATURES 30
<TABLE>
US Airways Group, Inc.
Condensed Consolidated Statements of Operations
Three Months and Nine Months Ended September 30, 1997 and 1996 (unaudited)
(in thousands, except per share amounts)
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
--------------------- ---------------------
1997 1996 1997 1996
---- ---- ---- ----
<S> <C> <C> <C> <C>
Operating Revenues
Passenger transportation $1,917,119 $1,885,792 $5,825,937 $5,520,502
Cargo and freight 46,193 39,701 135,238 117,944
Other 151,860 147,074 467,685 452,030
--------- --------- --------- ---------
Total Operating Revenues 2,115,172 2,072,567 6,428,860 6,090,476
Operating Expenses
Personnel costs 763,718 810,282 2,306,347 2,351,826
Aviation fuel 193,970 207,360 617,054 588,133
Commissions 151,047 147,088 460,846 440,225
Aircraft rent 124,715 116,378 359,432 321,641
Other rent and landing fees 116,218 105,839 315,905 311,539
Aircraft maintenance 126,748 75,446 328,502 265,903
Depreciation and amortization 155,013 77,411 326,796 238,072
Other, net 400,580 401,411 1,199,643 1,185,054
--------- --------- --------- ---------
Total Operating Expenses 2,032,009 1,941,215 5,914,525 5,702,393
--------- --------- --------- ---------
Operating Income 83,163 131,352 514,335 388,083
Other Income (Expense)
Interest income 27,964 21,732 75,241 51,409
Interest expense (63,957) (66,456) (192,642) (201,409)
Interest capitalized 3,189 2,280 8,825 5,702
Equity in earnings of affiliates 3,513 9,791 30,423 31,102
Gains on sales of interests in affiliates 179,625 - 179,625 -
Other, net (1,743) (19,486) 13,285 (20,091)
--------- --------- --------- ---------
Other Income (Expense), Net 148,591 (52,139) 114,757 (133,287)
--------- --------- --------- ---------
Income Before Taxes 231,754 79,213 629,092 254,796
Provision for Income Taxes 44,724 11,475 83,818 18,576
--------- --------- --------- ---------
Net Income 187,030 67,738 545,274 236,220
Preferred Dividend Requirement (10,612) (22,338) (54,983) (67,134)
--------- --------- --------- ---------
Net Income Applicable to
Common Stockholders $ 176,418 $ 45,400 $ 490,291 $ 169,086
========= ========= ========= =========
Income per Common Share
Primary $ 2.04 $ 0.69 $ 6.48 $ 2.58
Fully diluted $ 1.82 $ 0.60 $ 5.18 $ 2.15
Shares Used for Computation
Primary 86,685 65,838 75,620 65,457
Fully diluted 102,835 95,754 104,210 95,373
See accompanying Notes to Condensed Consolidated Financial Statements.
(this space intentionally left blank)
1
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<PAGE>
<TABLE>
US Airways Group, Inc.
Condensed Consolidated Balance Sheets
September 30, 1997(unaudited) and December 31, 1996
(dollars in thousands, except per share amount)
<CAPTION>
September 30, December 31,
ASSETS 1997 1996
------------ -----------
<S> <C> <C>
Current Assets
Cash and cash equivalents $ 1,224,411 $ 950,966
Short-term investments 857,068 635,839
Receivables, net 410,984 337,025
Materials and supplies, net 223,458 248,774
Prepaid expenses and other 121,271 137,590
--------- ---------
Total Current Assets 2,837,192 2,310,194
Property and Equipment
Flight equipment 5,192,637 5,202,057
Ground property and equipment 1,138,323 1,108,648
Less accumulated depreciation and amortization (2,719,346) (2,470,337)
--------- ---------
3,611,614 3,840,368
Purchase deposits 89,420 77,620
--------- ---------
Total Property and Equipment, Net 3,701,034 3,917,988
Other Assets
Goodwill, net 476,936 494,511
Other intangibles, net 264,919 283,309
Investment in marketable equity securities 192,196 -
Other assets, net 451,639 525,409
--------- ---------
Total Other Assets 1,385,690 1,303,229
--------- ---------
$ 7,923,916 $ 7,531,411
========= =========
LIABILITIES & STOCKHOLDERS' EQUITY (DEFICIT)
Current Liabilities
Current maturities of long-term debt $ 186,594 $ 84,259
Accounts payable 434,973 438,951
Traffic balances payable and unused tickets 873,495 715,576
Accrued aircraft rent 455,173 510,752
Other accrued expenses 764,072 1,099,181
--------- ---------
Total Current Liabilities 2,714,307 2,848,719
Long-Term Debt, Net of Current Maturities 2,441,084 2,615,780
Deferred Credits and Other Liabilities
Deferred gains, net 339,331 359,748
Postretirement benefits other than pensions, noncurrent 1,149,164 1,093,519
Noncurrent employee benefit liabilities and other 659,837 439,308
--------- ---------
Total Deferred Credits and Other Liabilities 2,148,332 1,892,575
Commitments and Contingencies
Redeemable Cumulative Convertible Preferred Stock
Series H, no par value, 358,000 shares issued and outstanding 358,000 358,000
Series F, no par value, 30,000 shares issued and outstanding - 300,000
as of December 31, 1996
Series T, no par value, 10,000 shares issued and outstanding - 100,719
as of December 31, 1996
Stockholders' Equity (Deficit)
Series B cumulative convertible preferred stock, - 213,128
no par value, 4,263,000 depositary shares issued
and outstanding as of December 31, 1996
Common stock, par value $1 per share, authorized 91,119 64,306
150,000,000 shares, issued and outstanding
91,119,000 and 64,306,000 shares, respectively
Paid-in capital 1,887,830 1,386,557
Retained earnings (deficit) (1,751,011) (2,117,838)
Common stock held in treasury - -
Deferred compensation (87,114) (95,326)
Unrealized gain on available-for-sale securities, net
of income tax effects 134,418 -
Adjustment for minimum pension liability, net of
income tax effects (13,049) (35,209)
--------- ---------
Total Stockholders' Equity (Deficit) 262,193 (584,382)
--------- ---------
$ 7,923,916 $ 7,531,411
========= =========
See accompanying Notes to Condensed Consolidated Financial Statements.
2
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<PAGE>
<TABLE>
US Airways Group, Inc.
Condensed Consolidated Statements of Cash Flows
Nine Months Ended September 30, 1997 and 1996 (unaudited)
(in thousands)
<CAPTION> 1997 1996
---- ----
<S> <C> <C>
Cash and cash equivalents beginning of period $ 950,966 $ 881,854
--------- -------
Cash flows from operating activities
Net income 545,274 236,220
Adjustments to reconcile net income to net cash
provided by (used for) operating activities
Depreciation and amortization 326,796 238,072
Loss (gain) on disposition of property (16,049) (889)
Gains on sales of interests in affiliates (179,625) -
Amortization of deferred gains and credits (20,765) (20,749)
Other 14,651 42,560
Changes in certain assets and liabilities
Decrease (increase) in receivables (73,959) (88,171)
Decrease (increase) in materials and supplies, prepaid expenses
and pension assets 38,843 (42,453)
Increase (decrease) in traffic balances payable and unused tickets 157,919 237,183
Increase (decrease) in accounts payable, accrued
aircraft rent and other accrued expenses (179,484) 4,762
Increase (decrease) in postretirement benefits other than
pensions, noncurrent 55,645 61,065
--------- -------
Net cash provided by (used for) operating activities 669,246 667,600
Cash flows from investing activities
Aircraft acquisitions and purchase deposits, net (19,219) (37,231)
Additions to other property (115,437) (105,711)
Proceeds from disposition of property 54,344 15,503
Proceeds from sales of interests in affiliates 224,233 -
Decrease (increase) in short-term investments (222,800) (603,983)
Decrease (increase) in restricted cash and investments 17,661 (2,347)
Other 5,125 (10,821)
--------- -------
Net cash provided by (used for) investing activities (56,093) (744,590)
Cash flows from financing activities
Issuance of debt - 103,002
Reduction of debt (72,361) (211,942)
Issuance of common stock 30,495 2,523
Sale of treasury stock 1,031 -
Redemption of preferred stock, including redemption premiums (126,485) -
Dividends paid on preferred stock (172,388) (43,000)
--------- -------
Net cash provided by (used for) financing activities (339,708) (149,417)
--------- -------
Net increase (decrease) in cash and cash equivalents 273,445 (226,407)
--------- -------
Cash and cash equivalents end of period $1,224,411 $ 655,447
========= =======
Noncash investing and financing activities
Conversion of preferred stock into common stock $ 496,550 $ -
Unrealized gain on available-for-sale securities, net of income tax effects $ 134,418 $ -
Treasury stock acquired for tax withholding on employee stock grants $ 1,163 $ -
Issuance of debt - refinancing of debt secured by aircraft $ - $ 159,998
Reduction of debt - refinancing of debt secured by aircraft $ - $ 154,422
Dividends declared on preferred stock, but not paid during period $ - $ 40,000
Issuance of debt - aircraft acquisitions $ - $ 26,075
Underwriter's fees - refinancing of debt secured by aircraft $ - $ 2,488
Supplemental Information
Cash paid during the period for interest, net of amount capitalized $ 206,867 $ 219,270
Net cash paid during the period for income taxes $ 64,781 $ 7,254
See accompanying Notes to Condensed Consolidated Financial Statements.
3
</TABLE>
<PAGE>
US AIRWAYS GROUP, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS OF PRESENTATION
The accompanying Condensed Consolidated Financial Statements
include the accounts of US Airways Group, Inc. ("US Airways Group"
or the "Company") and its wholly-owned subsidiaries US Airways,
Inc. ("US Airways"), Piedmont Airlines, Inc., PSA Airlines, Inc.,
Allegheny Airlines, Inc., US Airways Leasing and Sales, Inc., US
Airways Fuel Corporation, Material Services Company, Inc. and The
OR Group, Inc. ( "OR Group").
OR Group was a wholly-owned subsidiary of US Airways Group
that was incorporated in February 1996 and dissolved in the fourth
quarter of 1996. OR Group provided resource allocation consulting
services and decision-making support systems to US Airways, which
assumed these activities upon OR Group's dissolution.
US Airways terminated its Airline Technical Services, LLC
joint venture with a subsidiary of British Airways Plc. ("British
Airways") effective January 1997. No material charges resulted
from its termination.
Management believes that all adjustments necessary for a fair
statement of results have been included in the Condensed
Consolidated Financial Statements for the interim periods
presented, which are unaudited. All significant intercompany
accounts and transactions have been eliminated. The preparation of
financial statements in conformity with generally accepted
accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at
the date of the financial statements and the reported amounts of
revenues and expenses during the reporting period. Actual results
could differ from those estimates.
Certain 1996 amounts have been reclassified to conform with
1997 classifications.
These interim period Condensed Consolidated Financial
Statements should be read in conjunction with the Consolidated
Financial Statements contained in the Company's Annual Report on
Form 10-K for the year ended December 31, 1996.
2. INCOME PER COMMON SHARE
For the three months and nine months ended September 30,
1997, approximately 2,685,000 incremental shares of Common Stock
were included in the calculation of fully diluted income per
common share as the result of applying the "treasury stock method"
to outstanding stock options. For the three months ended September
30, 1997, the effects of assuming conversion of the Series H
Senior Cumulative Preferred Stock ("Series H Preferred Stock") and
the Series B Preferred Stock (for shares that were outstanding
prior to the conversion and redemption activity discussed in Note
4(a)) were dilutive and therefore included in the calculation. For
the nine months ended September 30, 1997, the effects of assuming
conversion of the Company's outstanding preferred stock issuances
(for shares that were outstanding prior to the repurchase,
conversion and redemption activity discussed in Note 3 and Note
4(a)) were dilutive and therefore included in the calculation,
except for shares of Series F Preferred Stock which were
repurchased in May 1997.
For both the three months and nine months ended September 30,
1997, the income effects of assuming conversion of dilutive
preferred stock issuances were approximately $10,612,000 and
$49,173,000, respectively. For the same periods, the share effects
of assuming conversion of
4
<PAGE>
dilutive preferred stock issuances were approximately 15,952,000
and 27,953,000 shares, respectively.
3. REDEEMABLE PREFERRED STOCK
During August 1997, the Company exchanged its Series A
Preferred Stock for Series H Preferred Stock. The Series A
Preferred Stock was, and the Series H Preferred Stock is, owned by
affiliates of Berkshire Hathaway, Inc. The provisions of the
Series H Preferred Stock are substantially similar to those of the
Series A Preferred Stock, with the following exceptions: The
Series H Preferred Stock cannot be redeemed before March 15, 1998;
the early redemption premium has been increased from $100 per
share to $150 (as with the Series A Preferred Stock, the Series H
Preferred Stock is mandatorily redeemable on August 7, 1999); and
certain changes have been made to provisions related to sales of
Series H Preferred Stock other than to US Airways Group. This
exchange transaction facilitated the redemption of the Series B
Preferred Stock (see Note 4(a)).
On May 21, 1997, British Airways converted 28,059.364 shares
of Series F Preferred Stock into 14,458,851 shares of Common
Stock, which it then sold to third parties. On May 22, 1997, the
Company repurchased the remaining outstanding shares of Series F
Preferred Stock and all of the Series T Preferred Stock (both
series were held exclusively by British Airways) for $126.2
million (which included a premium over the stated amount of $5.2
million for the shares of Series F Preferred Stock repurchased and
$0.8 million for the Series T Preferred Stock). The Company's
board of directors declared regular quarterly dividends on the
Series F and Series T Preferred Stock prior to the conversion and
repurchase transactions. As of May 22, 1997, the Company believes
British Airways held no ownership interest in US Airways Group.
During the first nine months of 1997, the Company paid
dividends totaling $116.4 million on its Series A, Series H,
Series F and Series T Preferred Stock (see Note 7 to the Company's
Annual Report on Form 10-K for the year ended December 31, 1996
for a description of each series, except for the Series H
Preferred Stock which is discussed above), including payment of
all dividends in arrears.
4. STOCKHOLDERS' EQUITY
(a) SERIES B PREFERRED STOCK
On April 17, 1997, the Company paid dividends of $46.6
million on its publicly-held Series B Preferred Stock. With that
payment, the Company had paid all dividends in arrears on its
Series B Preferred Stock. The Company paid regular quarterly
dividends of $4.7 million on its Series B Preferred Stock on May
15, 1997 and August 15, 1997.
During August 1997, the Company notified the holders of its
Series B Preferred Stock that it would redeem all outstanding
depositary shares representing Series B Preferred Stock on
September 15, 1997 at $51.75 per depositary share plus accrued
dividends of $0.3646 per depositary share. Because conversion was
financially advantageous to the holders, all but approximately
6,000 depositary shares were converted into Common Stock prior to
the redemption date resulting in the issuance of approximately
10.6 million shares of Common Stock.
(b) UNREALIZED GAIN ON AVAILABLE-FOR-SALE SECURITIES, NET OF
INCOME TAX EFFECTS
In accordance with Statement of Financial Accounting
Standards No. 115, "Accounting for Certain Investments in Debt and
Equity Securities" ("SFAS 115"), the Company recognizes an
adjustment to Stockholders' Equity to reflect differences between
the fair value of investments in marketable equity securities and
short-term investments (both types of investments are considered
5
<PAGE>
"available-for-sale" under SFAS 115) and their respective carrying
values at each balance sheet date. Any adjustment is recognized
net of estimated income taxes.
(c) ADJUSTMENT FOR MINIMUM PENSION LIABILITY, NET OF INCOME
TAX EFFECTS
In conjunction with the annual valuation of US Airways'
defined benefit plans, the Company recorded an Adjustment for
minimum pension liability as of September 30, 1997. The provisions
of Statement of Financial Accounting Standards No. 87, "Employers'
Accounting for Pensions," require the recognition of an additional
minimum pension liability for each defined benefit plan for which
the accumulated benefit obligation exceeds plan assets. This
amount has been recognized by the Company as a liability with an
offsetting intangible asset. Because the intangible asset
recognized may not exceed the amount of unrecognized prior service
cost on an individual plan basis, the balance is reported as a
separate adjustment to Stockholders' Equity, net of income tax
effects.
5. BRITISH AIRWAYS INVESTMENT
As discussed in Note 3, "Redeemable Preferred Stock," the
Company believes that British Airways held no ownership interest
in US Airways Group as of May 22, 1997. As of December 31, 1996,
the preferred stock held by British Airways represented
approximately 23% of the total voting interest in the Company.
6. USAM INVESTMENTS
Prior to the events described below, USAM Corp. ("USAM"), a
wholly-owned subsidiary of US Airways, owned 11% of the Galileo
International Partnership ("GIP"), approximately 11% of the
Galileo Japan Partnership ("GJP") and approximately 21% of the
Apollo Travel Services Partnership ("ATS"). The following is
summarized financial information for these partnerships (combined,
in millions):
Three Months Ended Nine Months Ended
September 30, September 30,
1997 * 1996 1997 * 1996
---- ---- ---- ----
(Unaudited) (Unaudited)
Service revenues $140 $375 $969 $1,126
Cost and expenses 112 308 758 908
--- --- --- -----
Net earnings $ 28 $ 67 $211 $ 218
=== === === =====
*USAM discontinued using the equity method of accounting for
its investments in GIP and ATS on July 30, 1997 (see below).
On July 30, 1997, Galileo International, Inc. ("Galileo")
completed an initial public offering ("IPO") and used the
proceeds, together with the proceeds of bank financing, to
purchase ATS. Immediately preceding the IPO, GIP was merged with
and into a wholly-owned limited liability company subsidiary of
Galileo and USAM received shares in Galileo in the same proportion
as its partnership interest in GIP. As part of the IPO, USAM sold
some of its Galileo shares and its interest in Galileo was reduced
from 11% to approximately 6.7%. USAM received proceeds of $62.2
million and recognized a pre-tax gain of approximately $50 million
from the sell-down of its interest in Galileo and received
proceeds of $162.0 million and recognized a pre-tax gain of
approximately $130 million in connection with the ATS sale.
USAM applies the provisions of Statement of Financial
Accounting Standards No. 115, "Accounting for Certain Investments
in Debt and Equity Securities," to account for its remaining
investment in Galileo, which is classified as available-for-sale.
6
<PAGE>
USAM received distributions from GIP, GJP and ATS of $12.7
million, $0.2 million and $4.6 million, respectively, during the
first nine months of 1997. USAM received distributions from GIP,
GJP and ATS of $2.8 million, $0.1 million and $41.9 million
(including a special distribution from ATS of $33.7 million during
the second quarter of 1996), respectively, during the first nine
months of 1996.
7. NONRECURRING ITEMS
During the second quarter of 1997, US Airways reversed $1.5
million of previously accrued lease obligations upon subleasing an
additional British Aerospace BAe-146-200 aircraft (recorded as a
credit to Aircraft rent expense).
US Airways also recognized nonrecurring expenses totaling
$28.3 million during the second quarter of 1997 related to
efficiency measures announced during May 1997: $6.9 million
recorded in Personnel costs related to estimated employee
severance payments; $2.9 million recorded in Other rent and
landing fees related primarily to the write-off of lease
obligations at certain facilities to be abandoned (net of any
anticipated sublease revenues); and $18.5 million recorded in
Depreciation and amortization related primarily to the write-down
of certain McDonnell Douglas DC-9-30 ("DC-9") aircraft to
estimated fair value. The efficiency measures include grounding of
22 excess aircraft, including five Fokker F28-4000 and 17 DC-9
aircraft (all of the F28-4000 aircraft and eleven of the DC-9
aircraft had been retired as of September 30, 1997), ending
unprofitable jet service to nine cities and eliminating other
routes that have not been profitable (completed during early
September 1997) and closing a flight crew base (by February 1998),
two reservations centers (October 1997) and three maintenance
facilities (by December 1998).
The Company recognized additional nonrecurring expenses
totaling $72.3 million during the third quarter of 1997 including
$59.3 million recorded in Depreciation and amortization resulting
from US Airways' late-September 1997 decision to retire its
remaining DC-9 aircraft over the next several years. The remaining
nonrecurring expenses recognized during the third quarter of 1997,
$11.3 million recorded in Depreciation and amortization and $1.7
million recorded in Other rent and landing fees, include the
write-down of certain equipment to be disposed of as a result of
the May 1997 efficiency measures and certain other adjustments to
the second quarter 1997 charges.
In addition, as discussed in Note 6, "USAM Investments," USAM
recognized a pre-tax gain of $179.6 million which resulted from
its sale of certain investments.
8. SUBSEQUENT EVENTS
On October 31, 1997, US Airways' pilots ratified a new five
year labor contract. The new contract includes, among other terms
and conditions, no pre-determined guaranteed increases to hourly
rates of pay, certain work rule changes and allowing US Airways to
establish a low cost, low fare product. US Airways believes that
this new contract will help it to reduce its unit operating costs,
which are currently the highest of all major domestic air
carriers.
On October 31, 1997, the Company entered into agreements with
AVSA, S.A.R.L. ("AVSA"), an affiliate of aircraft manufacturer
Airbus Industrie G.I.E. ("Airbus"), and CFM International Inc.
("CFMI") for the acquisition of up to 400 Airbus A320 family
aircraft and accompanying jet engines. The A320 family aircraft
are single-aisle "narrowbody" aircraft which include the Airbus
A319, A320 and A321.
The Company has 124 aircraft on firm order, 116 aircraft
subject to reconfirmation prior to scheduled delivery and options
for 160 additional aircraft. Of the first 124 aircraft six are
scheduled for delivery in 1998, 20 in 1999 and 98 in the years
2000 through 2002. The Company anticipates
7
<PAGE>
that the new Airbus aircraft will ultimately replace, at a
minimum, US Airways' DC-9-30, MD-80 and B737-200 aircraft.
The minimum determinable payments associated with the
Company's agreements with AVSA and CFMI (including progress
payments, payments at delivery, buyer-furnished equipment, spares,
capitalized interest, penalty payments, cancellation fees and/or
nonrefundable deposits) are currently estimated at $92 million
during the fourth quarter of 1997, $261 million in 1998, $701
million in 1999, $1.06 billion in 2000 and $212 million in 2001.
As previously disclosed, US Airways has been in discussions
with The Boeing Company ("Boeing") and Rolls Royce Plc. concerning
certain agreements to purchase eight B757-200 aircraft and 40
B737-Series aircraft. On September 11, 1997, Boeing filed suit
against US Airways in state court in King County, Washington,
alleging among other things, that US Airways had breached these
aircraft purchase agreements. The lawsuit seeks, among other
things, monetary damages of an unspecified amount. On October 31,
1997, US Airways filed an answer and counterclaim to Boeing's
complaint denying liability and seeking recovery from Boeing of
approximately $45 million in equipment purchase deposits and past
overcharges.
US Airways intends to vigorously defend the Boeing lawsuit.
US Airways cannot predict the outcome of the lawsuit or whether US
Airways' financial condition or results of operations would be
materially affected as a result of the lawsuit.
(this space intentionally left blank)
8
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<TABLE>
US Airways, Inc.
Condensed Consolidated Statements of Operations
Three Months and Nine Months Ended September 30, 1997 and 1996 (unaudited)
(in thousands)
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
------------------ ------------------
1997 1996 1997 1996
------ ------ ------ ------
<S> <C> <C> <C> <C>
Operating Revenues
Passenger transportation $1,767,554 $1,739,074 $5,377,365 $5,093,175
Cargo and freight 45,174 38,671 132,126 115,066
US Airways Express transportation revenues 150,986 - 452,453 -
Other 151,596 146,312 452,186 449,028
--------- --------- --------- ---------
Total Operating Revenues 2,115,310 1,924,057 6,414,130 5,657,269
Operating Expenses
Personnel costs 722,232 771,279 2,182,859 2,237,314
Aviation fuel 183,401 196,197 583,852 557,037
Commissions 140,477 137,090 429,327 410,854
Aircraft rent 109,938 103,009 315,184 285,931
Other rent and landing fees 111,549 101,263 301,842 298,417
Aircraft maintenance 109,297 62,099 279,615 222,710
Depreciation and amortization 150,999 73,511 315,138 226,508
US Airways Express capacity purchases 122,486 - 364,946 -
Other, net 379,879 382,842 1,123,237 1,124,074
--------- --------- --------- ---------
Total Operating Expenses 2,030,258 1,827,290 5,896,000 5,362,845
--------- --------- --------- ---------
Operating Income 85,052 96,767 518,130 294,424
Other Income (Expense)
Interest income 29,754 22,041 77,253 51,522
Interest expense (64,471) (71,255) (196,637) (213,323)
Interest capitalized 3,189 2,280 8,825 5,702
Equity in earnings of affiliates 3,513 9,791 30,423 31,102
Gains on sales of interests in affiliates 179,625 - 179,625 -
Other, net (1,718) (19,931) 13,436 (20,302)
--------- --------- --------- ---------
Other Income (Expense), Net 149,892 (57,074) 112,925 (145,299)
--------- --------- --------- ---------
Income Before Taxes 234,944 39,693 631,055 149,125
Provision for Income Taxes 48,038 11,646 98,734 15,440
--------- --------- --------- ---------
Net Income $ 186,906 $ 28,047 $ 532,321 $ 133,685
========= ========= ========= =========
See accompanying Notes to Condensed Consolidated Financial Statements.
9
</TABLE>
<PAGE>
<TABLE>
US Airways, Inc.
Condensed Consolidated Balance Sheets
September 30, 1997 (unaudited) and December 31, 1996
(dollars in thousands, except per share amount)
<CAPTION>
September 30, December 31,
1997 1996
------ ------
ASSETS
<S> <C> <C>
Current Assets
Cash and cash equivalents $1,223,761 $ 950,134
Short-term investments 857,068 635,839
Receivables, net 409,223 325,478
Receivables from related parties, net 44,201 -
Materials and supplies, net 192,191 211,184
Prepaid expenses and other 115,241 129,380
--------- ---------
Total Current Assets 2,841,685 2,252,015
Property and Equipment
Flight equipment 4,966,628 4,972,873
Ground property and equipment 1,112,906 1,087,178
Less accumulated depreciation and amortization (2,624,118) (2,381,844)
--------- ---------
3,455,416 3,678,207
Purchase deposits 89,420 77,620
--------- ---------
Total Property and Equipment, Net 3,544,836 3,755,827
Other Assets
Goodwill, net 476,936 494,511
Other intangibles, net 264,890 283,274
Investment in marketable equity securities 192,196 -
Other assets, net 529,429 606,906
--------- ---------
Total Other Assets 1,463,451 1,384,691
--------- ---------
$7,849,972 $7,392,533
========= =========
LIABILITIES AND STOCKHOLDER'S EQUITY (DEFICIT)
Current Liabilities
Current maturities of long-term debt $ 186,501 $ 84,171
Accounts payable 416,463 420,388
Payable to related parties, net - 193,860
Traffic balances payable and unused tickets 873,495 715,576
Accrued aircraft rent 445,885 495,662
Other accrued expenses 751,952 1,073,773
--------- ---------
Total Current Liabilities 2,674,296 2,983,430
Long-Term Debt, Net of Current Maturities 2,440,193 2,614,818
Deferred Credits and Other Liabilities
Deferred gains, net 336,775 356,583
Postretirement benefits other than pensions, noncurrent 1,148,914 1,093,269
Noncurrent employee benefit liabilities and other 646,050 429,588
--------- ---------
Total Deferred Credits and Other Liabilities 2,131,739 1,879,440
Commitments and Contingencies
Stockholder's Equity (Deficit)
Common stock, par value $1 per share, authorized
1,000 shares, issued and outstanding 1,000 shares 1 1
Paid-in capital 2,416,131 2,416,131
Retained earnings (deficit) (1,933,757) (2,466,078)
Unrealized gain on available-for-sale securities, net
of income tax effects 134,418 -
Adjustment for minimum pension liability, net
of income tax effects (13,049) (35,209)
--------- ---------
Total Stockholder's Equity (Deficit) 603,744 (85,155)
--------- ---------
$7,849,972 $7,392,533
========= =========
See accompanying Notes to Condensed Consolidated Financial Statements.
10
</TABLE>
<PAGE>
<TABLE>
US Airways, Inc.
Condensed Consolidated Statements of Cash Flows
Nine Months Ended September 30, 1997 and 1996 (unaudited)
(in thousands)
<CAPTION>
1997 1996
--------- ---------
<S> <C> <C>
Cash and cash equivalents beginning of period $ 950,134 $ 879,613
--------- ---------
Cash flows from operating activities
Net income 532,321 133,685
Adjustments to reconcile net income to net
cash provided by (used for) operating activities
Depreciation and amortization 315,138 226,508
Loss (gain) on disposition of property (15,846) (373)
Gains on sales of interests in affiliates (179,625) -
Amortization of deferred gains and credits (19,808) (19,809)
Other 7,877 21,708
Changes in certain assets and liabilities
Decrease (increase) in receivables (127,946) (85,993)
Decrease (increase) in materials and supplies, prepaid expenses
and pension assets 31,503 (32,445)
Increase (decrease) in traffic balances payable and unused tickets 157,919 245,487
Increase (decrease) in accounts payable, accrued
aircraft rent and other accrued expenses (359,282) 70,782
Increase (decrease) in postretirement benefits other than
pensions, noncurrent 55,645 61,065
--------- ---------
Net cash provided by (used for) operating activities 397,896 620,615
Cash flows from investing activities
Aircraft acquisitions and purchase deposits, net (19,219) (37,231)
Additions to other property (108,709) (101,211)
Proceeds from disposition of property 51,735 14,748
Proceeds from sales of interests in affiliates 224,233 -
Decrease (increase) in short-term investments (222,800) (603,983)
Decrease (increase) in restricted cash and investments 17,661 (2,347)
Payment of debt for affiliated company - (42,830)
Other 5,125 (10,490)
--------- ---------
Net cash provided by (used for) investing activities (51,974) (783,344)
Cash flows from financing activities
Issuance of debt - 103,002
Reduction of debt (72,295) (165,993)
--------- ---------
Net cash provided by (used for) financing activities (72,295) (62,991)
--------- ---------
Net increase (decrease) in cash and cash equivalents 273,627 (225,720)
--------- ---------
Cash and cash equivalents end of period $1,223,761 $ 653,893
========= =========
Noncash investing and financing activities
Unrealized gain on available-for-sale securities, net of
income tax effects $ 134,418 $ -
Issuance of debt - refinancing of debt secured by aircraft $ - $ 159,998
Reduction of debt - refinancing of debt secured by aircraft $ - $ 154,422
Reduction of parent company debt - aircraft acquisitions $ - $ 68,640
Issuance of debt - aircraft acquisitions $ - $ 26,075
Underwriter's fees - refinancing of debt secured by aircraft $ - $ 2,488
Supplemental Information
Cash paid during the period for interest, net of amount capitalized $ 206,803 $ 216,360
Net cash paid during the period for income taxes $ 64,671 $ 6,042
See accompanying Notes to Condensed Consolidated Financial Statements.
11
</TABLE>
<PAGE>
US AIRWAYS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
1. BASIS OF PRESENTATION
The accompanying Condensed Consolidated Financial Statements
include the accounts of US Airways, Inc. ("US Airways") and its
wholly-owned subsidiary USAM Corp. ("USAM"). US Airways is a
wholly-owned subsidiary of US Airways Group, Inc. ("US Airways
Group").
US Airways terminated its Airline Technical Services, LLC
joint venture with a subsidiary of British Airways Plc. effective
January 1997. No material charges resulted from its termination.
Management believes that all adjustments necessary for a fair
statement of results have been included in the Condensed
Consolidated Financial Statements for the interim periods
presented, which are unaudited. All significant intercompany
accounts and transactions have been eliminated. The preparation of
financial statements in conformity with generally accepted
accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and
liabilities and disclosure of contingent assets and liabilities at
the date of the financial statements and the reported amounts of
revenues and expenses during the reporting period. Actual results
could differ from those estimates.
Certain 1996 amounts have been reclassified to conform with
1997 classifications.
These interim period Condensed Consolidated Financial
Statements should be read in conjunction with the Consolidated
Financial Statements contained in US Airways' Annual Report on
Form 10-K for the year ended December 31, 1996.
2. UNREALIZED GAIN ON AVAILABLE-FOR-SALE SECURITIES, NET OF
INCOME TAX EFFECTS
Please refer to Note 4(b) in US Airways Group's "Notes to
Condensed Consolidated Financial Statements" on Page 5 of this
report.
3. ADJUSTMENT FOR MINIMUM PENSION LIABILITY, NET OF INCOME TAX
EFFECTS
Please refer to Note 4(c) in US Airways Group's "Notes to
Condensed Consolidated Financial Statements" on Page 6 of this
report.
4. USAM INVESTMENTS
Please refer to Note 6 in US Airways Group's "Notes to
Condensed Consolidated Financial Statements" on Page 6 of this
report.
5. NONRECURRING ITEMS
Please refer to Note 7 in US Airways Group's "Notes to
Condensed Consolidated Financial Statements" on Page 7 of this
report.
6. SUBSEQUENT EVENTS
Please refer to Note 8 in US Airways Group's "Notes to
Condensed Consolidated Financial Statements" on Page 7 of this
report.
12
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS.
GENERAL
Part I, Item 2 of this report should be read in conjunction
with Part II, Item 7 of US Airways Group, Inc.'s ("US Airways
Group" or the "Company") and US Airways, Inc.'s ("US Airways")
Annual Report to the United States Securities and Exchange
Commission ("SEC") on Form 10-K for the year ended December 31,
1996. The information contained herein is not a comprehensive
management overview and analysis of the financial condition and
results of operations of the Company and US Airways, but rather
updates disclosures made in the aforementioned filing.
Certain information contained herein should be considered
"forward-looking information" which is subject to a number of
risks and uncertainties. The preparation of forward-looking
information requires the use of estimates of future revenues,
expenses, activity levels and economic and market conditions, many
of which are outside the Company's control. Among the specific
factors that could cause actual results to differ materially from
those set forth in the forward-looking information are the
following: economic conditions, labor costs, aviation fuel costs,
competitive pressures from lower cost competition, weather
conditions, government legislation, consumer perceptions of the
Company's products, demand for air transportation in the markets
in which the Company operates and other risks and uncertainties
listed from time to time in the Company's reports to the SEC.
Other factors and assumptions not identified above are also
involved in the preparation of forward-looking information, and
the failure of such other factors and assumptions to be realized
may also cause actual results to differ materially from those
discussed. The Company assumes no obligation to update such
estimates to reflect actual results, changes in assumptions or
changes in other factors affecting such estimates.
Except where noted, the following discussion relates
primarily to the financial condition, results of operations and
future prospects of US Airways. US Airways is the Company's
principal subsidiary, accounting for approximately 92% of the
Company's operating revenues for the first nine months of 1997 (on
a consolidated basis). US Airways' financial results include the
financial results of its wholly-owned subsidiary USAM Corp.
("USAM").
FINANCIAL OVERVIEW
For the third quarter of 1997, the Company's operating
revenues were $2.12 billion, operating income was $83.2 million,
net income was $187.0 million and income per common share (or
"EPS") was $2.04 on a primary basis and $1.82 on a fully diluted
basis (the Company's Condensed Consolidated Statements of
Operations are contained in Part I, Item 1A of this report. See
Note 2 in Notes to Condensed Consolidated Financial Statements,
which are also contained in Part I, Item 1A of this report, and
Exhibit 11 to this report for additional information related to
EPS). For the first nine months of 1997, operating revenues were
$6.43 billion, operating income was $514.3 million, net income was
$545.3 million and EPS was $6.48 on a primary basis and $5.18 on a
fully diluted basis. The Company's financial results for the third
quarter and first nine months of 1997 include pre-tax gains
totaling $179.6 million which resulted from USAM's sale of certain
investments (as discussed under "USAM Investments" below) as well
as certain nonrecurring items. See "Results of Operations" below
for additional information related to the Company's results of
operations, including nonrecurring items.
PILOTS RATIFY NEW LABOR CONTRACT
On October 31, 1997, US Airways' pilots ratified a new five
year labor contract. This new contract, along with the Company's
agreements to acquire new aircraft and jet engines (see
13
"Affirmation of Airbus Order" below) are of paramount importance
to the Company's future, particularly with respect to ensuring
competitiveness and long-term financial viability.
Provisions of US Airways' new contract with its pilots include:
* No pre-determined guaranteed increases to hourly rates of pay
for "mainline" operations for existing aircraft types and new
Airbus aircraft through the term of the contract. Reviews must be
completed by January 1 of the years 2001, 2002 and 2003 to
determine what adjustments (increases or decreases), if any, must
be made to rates of pay and/or work rules so that US Airways'
pilot costs (pay and productivity) are at parity plus 1% as
compared to a weighted average of mainline pilot costs at American
Airlines, Inc. ("American"), Delta Air Lines, Inc. ("Delta"),
Northwest Airlines, Inc. ("Northwest") and United Airlines, Inc.
("United"). At the option of the pilots, an additional "Interim
Review" may be undertaken for completion by January 1, 1999.
* Allowing US Airways to establish a "low cost, low fare" product
to compete with Southwest Airlines, Inc. ("Southwest"), Delta's
Delta Express product, AirTran Airlines Inc. ("AirTran," whose
operations now include those of the former ValuJet Airlines, Inc.)
and other such competitors in certain markets and under certain
conditions. US Airways' low cost, low fare product can begin
service with up to 54 aircraft with the flexibility, under certain
circumstances, to expand its operations up to 25% of US Airways'
total system block hours. Pay rates for pilots on US Airways' low
cost, low fare product will be comparable to those of Southwest's
pilots (with pay protection for mainline pilots involuntarily
displaced to US Airways' low cost, low fare product ending when
such pilots have the ability to return to mainline operations).
* Work rule changes including reductions in sick leave and
vacation liabilities which are estimated to result in significant
annual savings when fully implemented.
* Allowing the Company's commuter air carriers to operate up to
the greater of 35 regional jet aircraft or the equivalent of 9% of
US Airways' operating fleet, once all pilots are recalled from
furlough.
* A commitment to grow at an annual rate the greater of 2.5% (as
measured by system block hours) or 20% above the average block
hour growth rate of American, Delta, Northwest and United subject
to certain deferral rights and force majeure provisions.
* Lump sum payments to pilots equal to 1% of annual salary for
the calendar years 1999, 2001 and 2002, payable in the subsequent
calendar year.
* 11.5 million options to purchase US Airways Group Common Stock,
to be issued ratably to pilots over the five-year life of the
contract, with exercise prices established based on the fair
market value of the Company's Common Stock over a time period
proceeding each grant date.
* An early retirement program for up to 325 pilots and the recall
from furlough by December 15, 1997 of 100 pilots furloughed in
1997, as well as offering recall by December 31, 2001 of 283
additional pilots furloughed prior to 1997.
* A requirement for US Airways to operate certain levels of
transoceanic block hours before increasing international code-
sharing.
* Certain change of control protections, including cash payments
to pilots of up to $250 million under certain circumstances if US
Airways is acquired and is not the surviving entity and the
pilots' labor contract is adversely affected as a result of the
acquisition.
* Certain job security provisions, including a "no furlough"
clause for pilots on the seniority list on the effective date of
the agreement.
US Airways currently estimates that the early retirement
program will result in a nonrecurring charge of approximately $115
million in accordance with the provisions of Financial Accounting
Standards Board ("FASB") Statement of Financial Accounting
Standards ("SFAS") No. 88, "Employers' Accounting for Settlements
and Curtailments of Defined Benefit Pension Plans and for
Termination Benefits" ("SFAS 88"). This charge would be recognized
in Personnel costs during the second quarter of 1998, when the
number of pilots who opt for early retirement is expected to be
established. US Airways expects to realize significant net long-
term savings in both wages and
14
<PAGE>
benefits expenses as a result of the early retirement program. US
Airways will recognize expenses for the lump sum payments,
approximately $20 million, in Personnel costs ratably through
December 31, 2002. Any Personnel cost expenses associated with the
stock options granted under the new contract would be recognized
over the vesting period of the grant and be dependent upon the
exercise price of each grant.
US Airways continues negotiations with the International
Association of Machinists and Aerospace Workers ("IAM"), which
represents US Airways' mechanical and related personnel, and the
Association of Flight Attendants ("AFA"), which represents US
Airways' flight attendants. US Airways has opened negotiations
with the IAM for fleet service employees and will soon begin
negotiations with the Communication Workers of America ("CWA") for
passenger service employees with respect to initial contracts for
both employee groups (see also "Other Information" below).
AFFIRMATION OF AIRBUS ORDER
On October 31, 1997, the Company entered into agreements with
AVSA, S.A.R.L. ("AVSA"), an affiliate of aircraft manufacturer
Airbus Industrie G.I.E. ("Airbus"), and CFM International Inc.
("CFMI") for the acquisition of up to 400 Airbus A320 family
aircraft and accompanying jet engines. The A320 family aircraft
are single-aisle "narrowbody" aircraft which include the Airbus
A319, A320 and A321. As part of the agreement with CFMI, GE Engine
Services, Inc. will provide maintenance for the engines under a
20-year agreement.
The Company has 124 aircraft on firm order, 116 aircraft
subject to reconfirmation prior to scheduled delivery and options
for 160 additional aircraft. Of the first 124 aircraft six are
scheduled for delivery in 1998, 20 in 1999 and 98 in the years
2000 through 2002. The Company anticipates that the new Airbus
aircraft will ultimately replace, at a minimum, US Airways' DC-9-
30, MD-80 and B737-200 aircraft. See related information under
"Liquidity and Capital Resources" below.
The Airbus aircraft are more efficient, less costly to
maintain and provide certain customer service benefits over the
aircraft they are intended to replace. However, certain operating
costs such as Depreciation and amortization and Aircraft rent are
likely to increase in conjunction with the higher ownership and/or
rental costs associated with the new aircraft. In addition, US
Airways may be required to recognize an "impairment charge"
related to aircraft to be retired, as defined in FASB SFAS No.
121, "Accounting for the Impairment of Long-Lived Assets and Long-
Lived Assets to Be Disposed Of" ("SFAS 121"). US Airways is
currently unable to determine the amount of such a charge, if any,
because certain information required for the analysis is currently
undetermined (e.g., aircraft retirement dates). See also "Results
of Operations: Nonrecurring items" below for additional
information regarding SFAS 121.
UPDATE ON US AIRWAYS' COMPETITIVE POSITION
US Airways' primary competitive threat continues to be the
growth of low cost, low fare competition in its primary operating
region, the Eastern United States. US Airways' estimated
origin/destination passenger overlap with low cost, low fare
competition was approximately 49% of its passenger base as of
October 1997 as compared to approximately 50% as of April 1997.
This slight decrease is due to schedule changes by US Airways,
which eliminated some affected markets (see "Efficiency Measures"
below), offset by continued growth of low cost, low fare
competition in the Eastern U.S.
During October 1997, the U.S. Department of Transportation
("DOT") awarded several low cost, low fare air carriers takeoff
and landing rights ("slots") at New York's LaGuardia Airport
("LaGuardia") and at Chicago's O'Hare International Airport. The
DOT awarded the slots as part of new policies designed to increase
competition at certain high-traffic domestic airports.
15
<PAGE>
Previously, slots at such airports (which also include New York's
John F. Kennedy International Airport and Washington National
Airport ("National")) were restricted by government regulation and
were only available through purchase or lease from another air
carrier. US Airways has a considerable number of slots at such
airports, primarily at LaGuardia and National. The recent awards
were minimal and are not expected to have a material adverse
impact on the Company's results of operations and financial
condition.
There are several proposals before Congress which would
address service to small and medium-size airports. Most notable is
a bill which would, among other things, confiscate slots from the
major air carriers at the four high-density airports mentioned in
the preceding paragraph and auction them off to new entrant air
carriers. US Airways has testified in opposition to such a plan.
Adoption of such a plan could force a reduction in US Airways'
flights from LaGuardia and National to certain communities on the
East Coast and could have an adverse effect on the Company's
results of operations and financial position.
Direct competition with low cost, low fare air carriers or
operations has typically resulted in the dilution of yield
realized by the Company's airline subsidiaries, depending on the
number of markets affected. In addition, US Airways continues to
have the highest unit operating cost (operating cost per ASM or
"cost per ASM") of all domestic air carriers. US Airways' cost per
ASM was 12.27 cents for the third quarter of 1997. By contrast,
Southwest and AirTran reported unit operating costs for the same
period of 7.36 cents and 8.11 cents, respectively. Delta Express'
unit operating cost is purported to be approximately 7.50 cents.
However, as discussed above, US Airways' new labor contract with
its pilots establishes the groundwork for US Airways to launch a
cost competitive answer to low cost, low fare competition. US
Airways' new product, which may include a new brand identity and
style of service, is expected to be launched in early 1998.
Although a route system for the new product is currently being
developed, Baltimore/Washington International Airport ("BWI") is
expected to play a major role.
US Airways continues to evaluate other measures through which
it can improve its competitiveness and fulfill its strategic
objectives. One of the Company's primary strategic objectives is
to expand the breadth of US Airways' operations on an
international scale and establish US Airways as a global airline
of choice. US Airways has recently undertaken steps to realize
this objective including announcing plans to build a new
international terminal and a new US Airways Express terminal at
Philadelphia International Airport. Other actions may include
purchasing the US Airways Shuttle (see "US Airways Shuttle" below)
and creating a Midwestern hub. The Company is examining
alternatives for widebody aircraft to support its growing
international operations and is currently discussing the
acquisition of widebody aircraft with both Airbus and Boeing.
US Airways' added a second daily non-stop flight between
Philadelphia and Paris on June 14, 1997 and will begin twice-daily
service between Philadelphia and London's Gatwick Airport on April
1, 1998. US Airways has filed with the DOT to serve London through
Gatwick from Boston, Charlotte and Pittsburgh with the intent of
transferring Gatwick operations to London's Heathrow Airport
("Heathrow") at the earliest opportunity. Service at Heathrow is
currently restricted by the bilateral aviation agreement between
the U.S. and the United Kingdom. US Airways has also filed with
the DOT and French authorities to serve Paris through Charles de
Gaulle Airport from Pittsburgh and is currently seeking the proper
authorizations to initiate service between Philadelphia and Milan.
During October 1997, US Airways discontinued service between
Boston and Frankfurt.
EFFICIENCY MEASURES
During May 1997, US Airways announced certain "efficiency
measures" including: Retiring 22 aircraft from its operating
fleet, including the last five Fokker F28-4000 ("F28-4000")
aircraft and
16
<PAGE>
17 older DC-9 aircraft (all of the F28-4000 aircraft and eleven of
the DC-9 aircraft had been retired as of September 30, 1997);
ending unprofitable service to nine cities and eliminating other
routes that have not been profitable (completed during early
September 1997); reducing capacity (ASMs) by approximately 6.5% by
Summer 1998; and closing a flight crew base (by February 1998),
two reservations centers (October 1997) and three maintenance
facilities (by December 1998).
The Company recognized nonrecurring charges during the second
quarter of 1997 as a result of these actions. In late September
1997, US Airways decided to retire its remaining DC-9 aircraft
earlier than previously planned resulting in an additional
nonrecurring charge (nonrecurring charges are discussed under
"Results of Operations: Nonrecurring items," below). Excluding any
SFAS 121 charges (see "Affirmation of Airbus Order" above), US
Airways anticipates that deliveries of new Airbus aircraft will
mitigate the effects of DC-9 retirements on its financial results
and capacity.
The Company has been working closely with union leaders and
employee groups to minimize to the greatest degree possible the
impact of changes in operations on affected employees. The Company
expects these efficiency measures will ultimately result in the
furlough of approximately 850 US Airways employees. See "Update on
US Airways' Competitive Position" for information related to US
Airways' strategic direction.
US Airways moved a majority of its international operations
at BWI to Philadelphia effective June 15, 1997. These schedule
adjustments were made to further enhance the efficiency of US
Airways' route network and take advantage of the traffic base and
connection opportunities provided by US Airways' facilities at
Philadelphia, US Airways' primary international gateway. These
schedule adjustments resulted in the elimination of approximately
240 full-time and part-time customer service and maintenance
positions at BWI. However, as mentioned above, BWI is expected to
play a major role in the launch of US Airways' new low cost
operation.
RESUMPTION OF REGULAR DIVIDEND PAYMENTS ON PREFERRED STOCK,
BRITISH AIRWAYS' DIVESTITURE AND CALL OF SERIES B PREFERRED STOCK
On March 26, 1997, the Company paid dividends totaling $34.8
million to the holders of its Series A, Series F and Series T
Preferred Stock and the Company's board of directors declared
dividends of $46.6 million on the Company's Series B Preferred
Stock (see Note 7 and Note 8 to the Company's Annual Report on
Form 10-K for the year ended December 31, 1996 for a description
of each of the Company's preferred stock issuances). After payment
of the Series B Preferred Stock dividends during May 1997, the
Company had paid all dividends in arrears (including penalty
dividends on the deferred dividends) and had resumed regular
quarterly dividend payments on all of its outstanding preferred
stock issuances.
During May 1997, British Airways Plc. ("British Airways")
converted 28,059.364 shares of Series F Preferred Stock into
14,458,851 shares of Common Stock, which it then sold to third
parties. Also during May 1997, the Company repurchased the
remaining shares of Series F Preferred Stock and all of the Series
T Preferred Stock (both series were held exclusively by British
Airways). The Company's board of directors declared regular
quarterly dividends on the Series F and Series T Preferred Stock
prior to the conversion and repurchase transactions. After the
conversion and repurchase transactions, the Company believes that
British Airways held no ownership interest in US Airways Group
(see also "Liquidity and Capital Resources" below).
During August 1997, the Company exchanged its Series A
Preferred Stock for Series H Cumulative Convertible Preferred
Stock ("Series H Preferred Stock"). The Series A Preferred Stock
was, and the Series H Preferred Stock is, owned by affiliates of
Berkshire Hathaway, Inc. ("Berkshire Hathaway"). The provisions of
the Series H Preferred Stock are substantially similar to those of
the Series A Preferred Stock (see Note 3 to the Company's
Condensed Consolidated
17
<PAGE>
Financial Statements for additional information). The exchange
transaction facilitated the redemption of the Series B Preferred
Stock (as discussed below).
On August 18, 1997, the Company notified the holders of its
Series B Preferred Stock that it would redeem all outstanding
depositary shares representing Series B Preferred Stock on
September 15, 1997 at $51.75 per share plus accrued dividends of
$0.3646 per share. Because conversion was financially advantageous
to the holders, all but approximately 6,000 depositary shares were
converted into Common Stock prior to the redemption date resulting
in the issuance of approximately 10.6 million shares of Common
Stock (see also "Liquidity and Capital Resources" below).
With the retirement of the Series B, Series F and Series T
Preferred Stock, the Company's annual preferred stock dividend
burden has been reduced by approximately $46 million. Future
dividend payments by the Company are primarily dependent on the
Company's future financial performance and decisions by its board
of directors. There can be no assurance that the Company's current
positive financial performance will continue or if the Company
will be able to maintain a capital surplus position based on its
balance sheet, as defined under the laws of the State of Delaware.
Sections 382 and 383 of the Internal Revenue Code and the
regulations thereunder impose limitations on the utilization of
net operating loss and credit carryforwards if a corporation has
had a "change of control" as defined therein. Generally, a change
of control occurs if the corporation experiences more than a 50%
ownership change over a rolling three year testing period. In
general, if a corporation has a change of control, the amount of
loss carryforwards and credits that can be used in any subsequent
year are limited to an amount equal to the product of the value of
the corporation's stock immediately prior to the change multiplied
by the "long-term tax exempt rate," as defined by the U.S.
Internal Revenue Service. The Company does not believe it
experienced a change of control before the British Airways and
Series B Preferred Stock transactions discussed above, nor does it
believe that those transactions caused a change of control. As of
December 31, 1996 the Company had approximately $1.5 billion
unused net operating loss carryforward, $375 million alternative
net operating loss carryforward, $50 million of investment tax
credits, and $33 million alternative minimum tax credits. The
Company expects to use a significant portion of these
carryforwards during 1997. The Company will also review whether
and to what extent it is appropriate to continue to apply a
valuation allowance to its deferred tax assets in accordance with
SFAS No. 109, "Accounting for Income Taxes," and any change in the
valuation allowance could differ materially from that recorded as
of December 31, 1996.
USAM INVESTMENTS
On July 30, 1997, Galileo International, Inc. ("Galileo")
completed an initial public offering ("IPO") and used the
proceeds, together with the proceeds of bank financing, to
purchase Apollo Travel Services Partnership ("ATS"). USAM owned
approximately 21% of ATS. Immediately preceding the IPO, Galileo
International Partnership ("GIP") was merged with and into a
wholly-owned limited liability company subsidiary of Galileo and
USAM received shares in Galileo in the same proportion as its
partnership interest in GIP. As part of the IPO, USAM sold some of
its Galileo shares and its interest in Galileo was reduced from
11% to approximately 6.7%. USAM received proceeds of $62.2 million
and recognized a pre-tax gain of approximately $50 million from
the sell-down of its interest in Galileo and received proceeds of
$162.0 million and recognized a pre-tax gain of approximately $130
million in connection with the ATS sale.
USAM applies the provisions of SFAS No. 115, "Accounting for
Certain Investments in Debt and Equity Securities," to account for
its remaining investment in Galileo. The resulting adjustment to
Stockholders' Equity to reflect the increase in the fair value of
USAM's Galileo investment over its carrying cost is reflected in
the Company's balance sheet line item Unrealized gain on
available-for-
18
<PAGE>
sale securities, net of income tax effects (see also Note 4(c) to
the Company's Condensed Consolidated Financial Statements).
US AIRWAYS SHUTTLE
On March 31, 1997, the Company exercised its right to
commence a procedure to value Shuttle, Inc. ("Shuttle"), the owner
of the US Airways Shuttle, in accordance with the agreement
between the Company, lenders to Shuttle and Shuttle's stockholders
(the "Valuation Procedure"). Culminating the Valuation Procedure,
an independent appraiser has provided to the Company, lenders to
Shuttle and Shuttle's stockholders its determination of Shuttle's
value. The Company has until November 22, 1997 to commit to
purchase Shuttle at this amount. However, if the Company declines
to purchase Shuttle at this amount, it will continue to have a
right of first refusal with respect to any other agreement to
purchase the assets or capital stock of Shuttle. Any decision by
the Company to purchase Shuttle either through the Valuation
Procedure or the right of first refusal will be made based on
prices and related business considerations.
The US Airways Shuttle currently operates a fleet of 12
Boeing 727-200 aircraft and provides high frequency service from
New York to Boston and Washington, DC.
OTHER INFORMATION
US Airways has signed a letter of intent with The SABRE
Group, Inc. ("Sabre") to manage US Airways' information
technology. The agreement, which would span 25 years, envisions
Sabre purchasing US Airways' computer equipment and proprietary
software. In return, US Airways would have access to Sabre
technology and expertise in areas such as reservations, passenger
check-in, aircraft and crew scheduling, yield management and
electronic ticketing. Approximately 875 US Airways information
services employees would be offered jobs with Sabre or otherwise
leave US Airways' employment. Sabre would also be responsible for
ensuring that US Airways' information systems are year 2000
compliant. The proposed arrangement would result in reduced
Personnel costs and higher Other operating expenses. US Airways
expects to finalize this agreement by the end of 1997.
During October 1997, electronic ticketing sales for travel on
US Airways and its regional affiliates reached 20% of all ticket
sales. Also during October 1997, US Airways expanded electronic
ticketing to include travel between the U.S. and Canada. The
Company, whose "E-ticket" program was launched in April 1996,
believes that electronic ticketing reduces distribution costs.
On September 29, 1997, US Airways' passenger service
employees, approximately 9,200 employees, voted for representation
by CWA. This election was a re-run election mandated by the
National Mediation Board ("NMB"). In January 1997, US Airways
passenger service employees voted against unionization, but the
NMB subsequently ordered that a new representation election be
held for these employees because of alleged interference by US
Airways with the election process. US Airways has filed an action
challenging this order in federal court.
On September 24, 1997, US Airways announced that it has
reduced the rates for base commissions paid to travel agencies
from 10% of ticket price to 8% on all domestic and international
tickets issued by travel agents in U.S., Puerto Rico, the U.S.
Virgin Islands and Canada. US Airways' existing maximum payment of
$25 one-way and $50 round-trip for tickets purchased in the U.S.
and Puerto Rico for travel in and between the U.S., Puerto Rico
the U.S. Virgin Islands and Canada remains unchanged.
On August 5, 1997, President Clinton signed legislation
extending federal excise taxes on air transportation ("ticket
tax") from October 1, 1997 through September 30, 2007. In
addition, effective October 1, 1997, the legislation reduced the
domestic ticket tax from the prior level of
19
<PAGE>
10% of fare to 9.0% (decreasing to 8.0% on October 1, 1998 and to
7.5% on October 1, 1999), added a new segment tax of $1.00 (which
increases to $3.00 by the year 2002), changed the current $6.00
international departure tax to $12.00 and added a $12.00
international arrival tax. The legislation also added a new 7.5%
tax effective October 1, 1997 on certain purchases of frequent
traveler program miles from domestic air carriers. The Company
does not believe that the new ticket tax structure will have a
material adverse effect on its liquidity, financial condition or
results of operations.
The Federal Aviation Administration has proposed new
regulations that would require certain commercial passenger
aircraft to have cargo hold fire detection/suppression systems.
The proposed regulations, subject to DOT approval, would affect US
Airways' Boeing 737-Series, DC-9 and MD-80 aircraft (the other
aircraft types in US Airways' operating fleet already have such
systems). US Airways estimates that compliance with the proposal,
as currently drafted, would cost approximately $22 million over
the recommended three-year phase-in period. The Company is unable
to predict whether or when the proposed regulations will be
adopted or if any such regulations, if adopted, would differ
materially from the current proposed regulations.
RESULTS OF OPERATIONS
The following section includes information related to changes
in certain line items in the Company's Condensed Consolidated
Statements of Operations and in select US Airways operating and
financial statistics. Except where noted, statistics referred to
below in the comparisons of financial results are for scheduled
service only.
THREE MONTH PERIOD ENDED SEPTEMBER 30, 1997
COMPARED WITH THE
THREE MONTH PERIOD ENDED SEPTEMBER 30, 1996
Operating Revenues (see also "Select US Airways Operating and
Financial Statistics" below):
Passenger Transportation-US Airways' Passenger transportation
revenues increased $28.5 million, or 1.6%, as the result of a 7.2%
increase in revenue passenger miles ("RPMs") offset by the effects
of a 5.2% decrease in yield. The Company estimates that inclement
weather (hurricanes) during the third quarter of 1996 adversely
affected Passenger transportation revenues by approximately $10
million.
Cargo and Freight-Increased due primarily to increased volume,
including the effects of the August 1997 labor strike at United
Parcel Service of America, Inc.
Other Operating Revenues-The largest factor contributing to the
increase is higher revenues from partners in US Airways' Dividend
Miles program. Changes in other components of Other operating
revenues are largely offset by correlating changes in operating
expenses, primarily those recorded as Other, net. US Airways'
results include certain transactions with related parties that are
eliminated at the US Airways Group level.
US Airways' Operating Revenues include the line item "US
Airways Express transportation revenues." Effective October 1,
1996, US Airways began purchasing all of the capacity (ASMs)
generated by the Company's three wholly-owned regional air
carriers and, concurrently, recognizing the passenger
transportation revenues that result from passengers being carried
by these companies. The rate per ASM that US Airways pays is based
on estimates of the costs incurred to produce the capacity. The
program is designed to reflect the reality of US Airways'
relationship with the Company's regional airline subsidiaries-US
Airways controls the markets these air carriers operate in, the
marketing programs and the fares charged. US Airways' revenues
from this program
20
<PAGE>
are reclassified to Passenger transportation revenues and the
related expenses eliminated during the consolidation of the
Company's results of operations.
Operating Expenses (see also "Pilots Ratify New Labor Contract"
and "Affirmation of Airbus Order" above):
Nonrecurring Items-The Company recognized nonrecurring items
during the second and third quarters of 1997. The table below
shows where these nonrecurring items were recorded in the
Company's Condensed Consolidated Statements of Operations (dollars
in millions; brackets indicate an expense).
1997
----------------------------
Second Third Year-to
Quarter Quarter Date
------- ------- -------
Operating Expenses
Personnel costs $ (6.9) $ - $(6.9)
Aircraft rent 1.5 - 1.5
Other rent and landing fees (2.9) (1.7) (4.6)
Depreciation and amortization (18.5) (70.6) (89.1)
---- ---- ----
(26.8) (72.3) (99.1)
---- ---- ----
Other Income (Expense)
Gains on sales of interests
in affiliates - 179.6 179.6
---- ----- -----
- 179.6 179.6
---- ----- -----
Net amount reflected in Income
Before Taxes $(26.8) $107.3 $80.5
==== ===== ====
The second quarter charges relate primarily to the efficiency
measures announced during May 1997, as discussed above under
"Efficiency Measures." The second quarter charges also include a
$1.5 million credit to Aircraft rent upon US Airways' subleasing
an additional British Aerospace BAe-146-200 ("BAe-146") aircraft.
The $2.9 million charge to Other rent and landing fees reflects
the accrual of lease obligations at certain facilities
abandoned/to be abandoned (net of any anticipated sublease
revenues) as the result of the May 1997 efficiency measures; the
$1.7 million charge to Other rent and landing fees recognized
during third quarter 1997 is an adjustment of the second quarter
facilities-related charge.
A majority of the Depreciation and amortization charges in
both quarters stem from analyses performed in accordance with the
provisions of SFAS 121. In general, SFAS 121 requires an
impairment charge to be recognized when the net undiscounted
future cash flows from an asset's use (including any anticipated
proceeds from disposition) are less than the asset's current book
value and the asset's current book value exceeds its fair value.
The impairment charge reflects writing-down the assets to fair
value. $18.1 million of the second quarter charge is an impairment
charge associated with retiring 17 DC-9 aircraft as the result of
the May 1997 efficiency measures and $59.3 million of the third
quarter charge is an impairment charge resulting from US Airways'
late-September 1997 decision to retire its remaining DC-9 aircraft
over the next several years. US Airways has suspended its DC-9
"hush-kit" program in conjunction with its decision to retire this
fleet-type. As of September 30, 1997, US Airways' operating fleet
included 50 owned DC-9s, including 27 of which were hush-kitted.
The remaining components of the Depreciation and amortization
charge in both quarters relate to the May 1997 efficiency
measures. The second quarter charge relates primarily to
facilities abandoned/to be abandoned as a result of the May 1997
efficiency measures and the third quarter charge includes the
write-down of certain equipment to be disposed of as a result of
the May 1997 efficiency measures and certain other adjustments to
the second quarter charges.
21
<PAGE>
Gains on sales of interests in affiliates resulted from
USAM's sale of certain investments, as discussed above under "USAM
Investments."
During the second quarter of 1996, US Airways recognized two
nonrecurring items related to subleasing eleven BAe-146 aircraft.
A credit of $22.5 million, a reversal of previously accrued lease
obligations, was recorded in Aircraft rent and a credit of $7.0
million, a reversal of previously accrued lease return provisions,
was recognized in Aircraft maintenance.
Personnel Costs-Excluding nonrecurring items (see above),
Personnel costs decreased $53.5 million. The Company recognized
profit sharing expenses associated with US Airways' 1992 Salary
Reduction Program of $41.1 million during third quarter 1996 (no
such expenses were incurred during third quarter 1997). In
addition, defined benefit pension and postretirement benefit
expenses decreased due primarily to higher interest rates
(discount factors) used for 1997 calculations. See related
information under "Other Information."
Aviation Fuel-Decreased as a result of an 8.1% decrease in US
Airways' average cost of fuel per gallon partially offset by a
1.8% increase in gallons of aviation fuel consumed. Effective for
1997, the Company classifies fuel taxes as an element of Aviation
fuel expense. These expenses were previously an element of the
operating expense Other, net (prior period results have been
reclassified for comparability purposes).
Commissions-See "Other Information" above related to recent
changes in US Airways' commissions rate structure.
Aircraft Rent-Expenses increased due primarily to a rent expense
adjustment of $9.6 million related to certain F28-4000 aircraft
recognized during third quarter 1997.
Other Rent and Landing Fees-Excluding the effects of the
nonrecurring items (see above), increased $8.7 million due
primarily to out-of-period adjustments of $4.4 million and the
timing of when certain facility rent credits were received period-
over-period.
Aircraft Maintenance-Increased due to two "unusual" charges
recognized during third quarter 1997: $14.5 million related to
unserviceable (scrapped) JT8D engine parts, and; $10.0 million in
adjustments related to other spare parts. In addition, US Airways
continues to experience increases in the cost of certain JT8D jet
engine parts. Timing factors, primarily related to the timing and
extent of engine overhauls, are the largest factor with respect to
the remaining quarter-over-quarter variance. US Airways is
realizing savings from the "power-by-the-hour" maintenance
contract for its CFM-56 and CF-6 jet engines which began during
the fourth quarter of 1996.
Depreciation and Amortization-Increased $7.0 million if
nonrecurring items (see above) are excluded.
US Airways' Operating Expenses include the line item "US
Airways Express capacity purchases." These expenses, which are
eliminated during the consolidation of the Company's results of
operations, are discussed under Operating Revenues above.
Other Income (Expense):
Equity in Earnings of Affiliates-USAM discontinued applying the
equity method of accounting to certain of its investments. See
"USAM Investments" above for related information.
Gain on sales of interests in affiliates-See "USAM Investments"
above.
22
<PAGE>
Other, Net-Third quarter 1996 activity included losses totaling
$10.5 million related to US Airways' sale of four DC-9 aircraft
and its only owned BAe-146 aircraft and $9.8 million related to US
Airways' settlement of litigation involving travel agencies.
Provision for Income Taxes-Increased due primarily to increased
pre-tax income and an increase in the Company's effective tax rate
as a result of the Company's projected utilization of all
remaining alternative minimum tax net operating loss carryforwards
during 1997. See also "Resumption of Regular Dividend Payments on
Preferred Stock, British Airways' Divestiture and Call of Series B
Preferred Stock" above for related information.
Income per Common Share-During the third quarter of 1997, most of
the Series B Preferred Stock was converted into 10.6 million
shares of Common Stock. On a weighted average basis, this
transaction had the effect of increasing common shares outstanding
by approximately 3.9 million shares for the third quarter of 1997
(see also "Supplemental Information" below).
Supplemental Information-In June 1997, the FASB adopted SFAS No.
130, "Reporting Comprehensive Income," ("SFAS 130") and SFAS No.
131, "Disclosures About Segments of an Enterprise and Related
Information" ("SFAS 131"). SFAS 130 establishes standards for the
reporting and presentation of comprehensive income and its
components in financial statements. SFAS 131 establishes standards
for defining operating segments and the reporting of certain
information regarding operating segments. The Company believes
that neither SFAS 130 nor SFAS 131 will have an effect on the
Company's liquidity, financial condition or results of operations
as both standards are informational only. If the Company
determines that it has a reporting obligation under either new
standard, the necessary information will be disclosed as part of
the Company's financial reporting in the appropriate period.
In February 1997, the FASB adopted SFAS No. 128, "Earnings per
Share" ("SFAS 128"). This statement specifies new computation,
presentation and disclosure requirements for reporting income per
common share. The provisions of SFAS 128 preclude the Company from
implementing the new standard prior to December 31, 1997. The
Company believes that the implementation of SFAS 128 will not have
a material impact on its future income per common share
disclosures or on prior period income per common share amounts,
which must be restated to conform with the provisions of SFAS 128.
NINE MONTH PERIOD ENDED SEPTEMBER 30, 1997
COMPARED WITH THE
NINE MONTH PERIOD ENDED SEPTEMBER 30, 1996
Operating Revenues (see also "Select US Airways Operating and
Financial Statistics" below):
Passenger Transportation-US Airways' Passenger transportation
revenues increased $284.2 million, or 5.6%, as the result of a
9.8% increase in RPMs offset by the effects of a 3.9% decrease in
yield. The Company estimates that severe winter weather within the
Eastern U.S. and the partial Federal Government shutdown adversely
affected first quarter 1996 revenues by approximately $55 million.
Inclement weather (hurricanes) during the third quarter of 1996 is
believed to have negatively affected Passenger transportation
revenues by approximately $10 million.
Cargo and Freight-Increased primarily due to volume factors.
Other Operating Revenues-The largest factor contributing to the
increase is higher revenues from partners in US Airways' Dividend
Miles program and from reservation rebooking fees offset by
decreased wet lease revenues. Wet lease revenues decreased $12.6
million because these arrangements with British Airways ended
during May 1996. Changes in other components of Other operating
revenues are largely offset by correlating changes in related
operating expenses, primarily
23
<PAGE>
those recorded as Other operating expenses, net. US Airways'
results include certain transactions with related parties that are
eliminated at the US Airways Group level.
US Airways' Operating Revenues include the line item "US Airways
Express transportation revenues." This activity is discussed in
the quarter-over-quarter comparison above.
Operating Expenses (see also "Pilots Ratify New Labor Contract"
and "Affirmation of Airbus Order" above):
Nonrecurring Items-The Company's Operating Expenses for both 1997
and 1996 include the nonrecurring items discussed in the quarter-
over-quarter comparison of results of operations.
Personnel Costs-Decreased $52.4 million if nonrecurring items (see
above) are excluded. The Company recognized profit sharing
expenses associated with US Airways' 1992 Salary Reduction Program
of $82.4 million during the first nine months of 1996 (no such
expenses during 1997). Expenses associated with stock appreciation
rights ("SARs") were $28.9 million during the first nine months of
1997 (no such expenses during the first nine months of 1996). In
addition, defined benefit pension and postretirement benefits
expenses decreased due primarily to higher interest rates
(discount factors) used for 1997 calculations.
Aviation Fuel-Primarily volume factors; US Airways' average cost
of aviation fuel per gallon increased 0.8%.
Aircraft Rent-Excluding the effects of the nonrecurring items (see
above), costs increased due primarily to rent expense adjustments
totaling $16.8 million recorded during 1997 related to certain
F28-4000 aircraft.
Aircraft Maintenance-As discussed in the quarter-over-quarter
comparison above, certain unusual charges were recognized during
the third quarter of 1997. Timing factors and an increase in the
cost of certain JT8D jet engine parts also contributed to more
than offsetting savings US Airways is realizing from the "power-
by-the-hour" maintenance contract covering its CFM-56 and CF-6 jet
engines. 1996 activity also included a nonrecurring expense credit
(see above).
Depreciation and Amortization-Relatively unchanged if nonrecurring
items (see above) are excluded.
Other Operating Expenses, Net-Wet lease expenses decreased $12.6
million (see also Other Operating Revenues above). This decrease
was more than offset by increases in certain sales and traffic-
related expenses (most notably, credit card expenses).
US Airways' Operating Expenses include the line item "US
Airways Express capacity purchases." These expenses, which are
eliminated during the consolidation of the Company's results of
operations, are discussed under Operating Revenues above.
Other Income (Expense):
Equity in Earnings of Affiliates/Gains on Sales of Interests in
Affiliates-See quarter-over-quarter comparison above.
Other, Net-Results for the first nine months of 1997 include gains
totaling $18.0 million related to US Airways' sale of eleven B737-
200 and one F28-4000 aircraft. Results for the first nine months
of 1996 included losses totaling $10.5 million related to US
Airways' sale of four DC-9 aircraft and its only owned BAe-146
aircraft and a $9.8 million expense related to US Airways'
settlement of litigation involving travel agencies.
24
<PAGE>
Provision for Income Taxes-Increased due primarily to increased
income and an increase in the Company's effective tax rate as a
result of the Company's projected utilization of all remaining
alternative minimum tax net operating loss carryforwards during
1997.
Income per Common Share-During the third quarter of 1997, most of
the Series B Preferred Stock was converted into 10.6 million
shares of Common Stock. During the second quarter of 1997, most of
the Series F Preferred Stock was converted into 14.5 million
shares of Common Stock. On a weighted average basis, these
transactions had the effect of increasing Common Stock shares
outstanding by approximately 8.4 million shares for the first nine
months of 1997.
<TABLE>
SELECT US AIRWAYS
OPERATING AND FINANCIAL STATISTICS (SEE NOTE 1 BELOW)
<CAPTION>
Three Months Nine Months
Ended September 30, Increase Ended September 30, Increase
1997 1996 (Decrease) 1997 1996 (Decrease)
---- ---- -------- ---- ---- --------
<S> <C> <C> <C> <C> <C> <C>
Revenue passengers (thousands)* 15,080 14,329 5.2 % 44,480 42,228 5.3%
Total RPMs (millions) (Note 2) 10,979 10,267 6.9% 31,930 29,186 9.4%
RPMs (millions)* 10,940 10,201 7.2% 31,793 28,955 9.8%
Total ASMs (millions) (Note 3) 14,957 14,685 1.9% 44,418 42,491 4.5%
ASMs (millions)* 14,908 14,610 2.0% 44,254 42,225 4.8%
Passenger load factor* (Note 4) 73.4% 69.8% 3.6 pts. 71.8% 68.6% 3.2 pts.
Break-even load factor (Note 5) 70.0% 68.8% 1.2 pts. 66.7% 67.6% (0.9)pts.
Yield* (Note 6) 16.16c 17.05c (5.2)% 16.91c 17.59c (3.9)%
Passenger revenue per ASM* (Note 7) 11.86c 11.90c (0.3)% 12.15c 12.06c 0.7%
Revenue per ASM (Note 8) 13.13c 13.10c 0.2 % 13.42c 13.28c 1.1%
Cost per ASM (Note 9) 12.27c 12.44c (1.4)% 12.23c 12.66c (3.4)%
Average passenger journey (miles)* 726 712 2.0 % 715 686 4.2%
Average stage length (miles)* 599 584 2.6 % 592 578 2.4%
Revenue aircraft miles (millions)* 111 109 1.8 % 330 317 4.1%
Cost of aviation fuel per gallon (Note 10) 63.96c 69.57c (8.1)% 68.15c 67.63c 0.8%
Cost of aviation fuel per gallon (Note 11) 58.23c 63.21c (7.9)% 61.95c 61.28c 1.1%
Gallons of aviation fuel consumed (millions) 287 282 1.8 % 857 824 4.0%
Operating aircraft at period-end 377 391 (3.6)% 377 391 (3.6)%
Full-time equivalent employees at period-end 39,857 40,047 (0.5)% 39,857 40,047 (0.5)%
* Scheduled service only (excludes charter service).
c cents.
Note 1. Operating statistics include free frequent travelers and the related miles flown. Operating statistics exclude
flights operated by US Airways under a wet lease arrangement with British Airways (the "wet lease arrangement," which
ended May 31, 1996). Financial statistics exclude the effects of nonrecurring items and the revenues and expenses
associated with the US Airways Express capacity purchase program and the wet lease arrangement. Net nonrecurring expenses
of $72.3 million and $99.1 million have been excluded from the financial results for third quarter 1997 and the first nine
months of 1997, respectively, and net nonrecurring expense credits of $29.5 million have been excluded from the financial
results for the first nine months of 1996 for purposes of calculating financial statistics. Revenues of $12.6 million and
expenses of $12.6 million associated with the wet lease arrangement have also been excluded from the financial results for
the first nine months of 1996 for purposes of calculating financial statistics. In addition, the calculation of break-even
load factor excludes Gains on sales of interests in affiliates.
Note 2. Revenue Passenger Miles ("RPMs") - revenue passengers multiplied by the number of miles they flew.
Note 3. Seats available multiplied by the number of miles flown (a measure of capacity).
Note 4. Percentage of aircraft seating capacity that is actually utilized (RPMs/ASMs).
(Notes to the table are continued on the following page)
25
<PAGE>
Note 5. Percentage of aircraft seating capacity utilized that equates to US Airways breaking-even at the pre-tax income
level.
Note 6. Passenger transportation revenue divided by RPMs.
Note 7. Passenger transportation revenue divided by ASMs (a measure of unit revenue).
Note 8. Total Operating Revenues divided by ASMs (a measure of unit revenue).
Note 9. Total Operating Expenses divided by ASMs (a measure of unit cost).
Note 10. Includes the base cost of aviation fuel, fuel taxes and transportation charges.
Note 11. Includes the base cost of aviation fuel and transportation charges (excludes fuel taxes).
</TABLE>
US Airways' traffic levels continue to be bolstered by
favorable domestic economic conditions. US Airways' yield
decreased for both the third quarter of 1997 and first nine months
of 1997 versus the comparable periods in 1996. The yield decreases
are primarily attributable to increased competitive pressures (see
"Update on US Airways' Competitive Position" above) and the
effects of the ticket tax. The ticket tax expired on January 1,
1996, was reinstated on August 27, 1996, expired again on January
1, 1997 and once again reinstated effective March 7, 1997. As
discussed under "Other Information" above, the ticket tax was
modified and extended during August 1997. Also negatively
affecting yield, US Airways' average passenger journey increased
for both the third quarter and first nine months of 1997. US
Airways selectively increased fares in certain markets up to 5%
during September 1997.
Unit costs (cost per ASM) decreased slightly versus 1996
levels on both a quarter-over-quarter and year-over-year basis.
Changes in certain operating expenses are discussed above in the
comparisons of financial results. US Airways' expects its unit
costs to decrease approximately 1% - 2% for fourth quarter 1997 as
compared to fourth quarter 1996.
Capacity (ASMs) increased for both periods in 1997 primarily
as the result of higher aircraft utilization rates during 1997.
Aircraft utilization was adversely affected by inclement weather
during both the first and third quarters of 1996. ASMs increased
4.5% for the first nine months of 1997 as compared to the same
period in 1996, but only 1.9% for the third quarter of 1997 as
compared to the third quarter of 1996 due primarily to schedule
changes implemented during the third quarter of 1997 and aircraft
retirements (see also "Efficiency Measures" above). US Airways
expects capacity to decrease approximately 4% for fourth quarter
1997 as compared to fourth quarter 1996. As compared to capacity
for full year 1997, US Airways' capacity for 1998 is expected to
decrease less than the 3 1/2% - 4% decrease previously announced.
As discussed above under "Pilots Ratify New Labor Contract"
and "Affirmation of Airbus Order" and elsewhere in this report,
recent events may have a significant impact on US Airways' future
operating and financial statistics.
LIQUIDITY AND CAPITAL RESOURCES
As of September 30, 1997, the Company's Cash and cash
equivalents and Short-term investments totaled $2.08 billion. As
indicated in the Company's Condensed Consolidated Statements of
Cash Flows (which are also contained in Part I, Item 1A of this
report), net cash provided by operating activities during the
first nine months of 1997 was $669.2 million, due primarily to the
effects of factors discussed above under "Results of Operations."
The Company is unable to predict the impact of recent events
involving US Airways' labor costs and agreements to purchase new
aircraft and jet engines on its operating cash flows (see "Pilots
Ratify New Labor Contract" and "Affirmation of Airbus Order"
above). The Company expects decreases in certain future operating
cash outflows as US Airways replaces several older, diverse
aircraft types with newer, more efficient aircraft, but may
experience increases in certain other future operating cash
outflows as the result of US Airways' growth plans (see "Update on
US Airways' Competitive Position" above).
26
<PAGE>
With the reinstatement of the ticket tax during March 1997,
the Company resumed ticket tax remittances to the federal
government. The ticket tax was not in effect during the periods
January 1, 1996-August 27, 1996 and January 1, 1997-March 7, 1997.
The Company also made profit sharing payments to employees
totaling $129.1 million during first quarter 1997. These payments
ended the Company's obligation for profit sharing under its 1992
Salary Reduction Plan (the related expenses were recognized by the
Company during 1996 and earlier periods). USAM received
distributions totaling $17.4 million from its CRS investments
during the first nine months of 1997, as reflected in the Other
operating adjustments category (see also "USAM Investments"
above).
SAR exercises resulted in cash outflows of $47.4 million
during the first nine months of 1997. As of September 30, 1997,
approximately 435,000 SARs granted under the 1992 Stock Option
Plan were outstanding (4.2 million SARs were outstanding as of
December 31, 1996).
Investing activities during the first nine months of 1997
included cash outflows of $134.7 million for the acquisition of
assets and cash inflows of $54.3 million related to asset
dispositions. US Airways' cash outflows related to asset
acquisitions include $79.7 million for aircraft and aircraft-
related assets, $15.6 million for computer equipment, $14.1
million for third-party maintenance performed on certain subleased
aircraft and $6.0 million to purchase slots at Washington National
Airport. Asset dispositions included cash inflows related to US
Airways' sale of eleven B737-200, one F28-4000 and one Bae-146
aircraft. Short-term investments increased $222.8 million from the
year-end 1996 level due primarily to cash flows generated from
operations exceeding immediate operational needs, particularly
during the third quarter of 1997. The net cash used for investing
activities during the first nine months of 1997 was $56.1 million.
As discussed under "USAM Investments" above, during July 1997
USAM received proceeds of $162.0 million in connection with the
sale of its interest in ATS and proceeds of $62.2 million related
to the sell-down of its interest in Galileo.
As of September 30, 1997, current maturities of long-term
debt had increased to $186.6 million, from $84.3 million at the
end of 1996. The increase is due mainly to reclassifying the first
series of US Airways' 1993-A Pass Through Trusts, $75.0 million,
from long-term to short-term status. US Airways currently expects
to settle this obligation, which becomes payable on September 1,
1998, from cash on hand.
The Company currently estimates that contributions to its
defined benefit plans for full-year 1997 will total approximately
$110 million. The Company estimates it will need to contribute
less than $20 million to these plans in 1998 in order to meet
statutory minimum pension funding requirements due primarily to
favorable returns on assets held by these plans and certain
changes in assumptions underlying the Company's calculations of
the funding minimums. The Company's estimates of future pension
plan contributions are subject to change, including the
possibility of the Company contributing to these plans in excess
of minimum funding requirements. As mentioned above under "Pilots
Ratify New Labor Contract," US Airways' new labor contract with
its pilots includes a provision for early retirement for up to 325
pilots which could result in the Company funding certain pilot
pension plans in excess of funding minimums.
US Airways is currently reviewing the extent and timing of
its "aircraft interior standardization program" in light of
affirming its aircraft and jet engine acquisition agreements and
its decision to retire its DC-9 aircraft. US Airways is currently
unable to estimate any reduction in the cost or scope of this
program as a result of these recent events.
Net cash used for financing activities during the first nine
months of 1997 was $339.7 million. The Company paid dividends
totaling $172.4 million to holders of its preferred stock during
the first nine months of 1997 and repurchased the Series T
Preferred Stock and 1,940.636 shares of Series F Preferred Stock
during May 1997 for a combined $126.2 million. As discussed above,
27
<PAGE>
British Airways converted the remaining Series F shares into
Common Stock and subsequently sold those shares to third parties.
During August 1997, and also discussed above, the Company
exercised its right to redeem all of its outstanding Series B
Preferred Stock-all but approximately 6,000 depositary shares were
converted into Common Stock prior to the redemption date (for
which the related cash outflows were $0.3 million). With the
retirement of the Series B, Series F and Series T Preferred Stock,
the Company's annual preferred stock dividend burden has been
reduced by approximately $46 million. Issuances of Common Stock
related to the exercise of stock options resulted in proceeds of
$30.5 million. The Company's subsidiaries made scheduled debt
repayments of approximately $63.1 million and US Airways prepaid
early capital lease obligations of $9.2 million associated with
three DC-9 aircraft (and assumed title of the aircraft) during the
first nine months of 1997.
The Company expects to satisfy all of its short-term
liquidity requirements through a combination of cash on hand and
cash generated from operations. However, the Company remains
highly leveraged. The Company and US Airways require substantial
working capital in order to meet scheduled debt and lease payments
and to finance day-to-day operations. The Company currently does
not have in place a short-term credit or receivable sale
facilities. In addition, as discussed previously, US Airways has
entered into agreements to acquire up to 400 new aircraft and jet
engines to power these aircraft. These agreements will increase US
Airways' financing needs and will result in a significant increase
in its financial obligations and debt burden (see related
discussion below). Changes in certain factors that are generally
outside the Company's control, such as an economic downturn,
additional government regulation, intensified competition from
lower cost air carriers or operations and increases in the cost of
aviation fuel, could have a material adverse effect on the
Company's liquidity, financial condition and results of
operations. Until US Airways is able to establish a competitive
cost structure, the Company's results of operations and financial
condition will be particularly susceptible to adverse changes in
general economic and market conditions.
As discussed under "Affirmation of Airbus Order" above, the
Company has entered into agreements for the acquisition of up to
400 new aircraft and accompanying jet engines. The minimum
determinable payments associated with the Company's agreements
with AVSA and CFMI (including progress payments, payments at
delivery, buyer-furnished equipment, spares, capitalized interest,
penalty payments, cancellation fees and/or nonrefundable deposits)
are currently estimated at $92 million during the fourth quarter
of 1997, $261 million in 1998, $701 million in 1999, $1.06 billion
in 2000 and $212 million in 2001. If the Company takes delivery of
all of the Airbus aircraft it currently has on firm order, the
aggregate payments for aircraft and related expenditures in
connection with the acquisition of the aircraft could approximate
$4.75 billion. The Company anticipates using cash on hand for
purchase deposits due within the next year and currently plans on
financing a substantial portion of the remaining commitment. The
Company has commitments or letters of intent which it believes
will provide financing for at least 25% of the anticipated
purchase price of such aircraft. However, further financing or
internally-generated funds will be needed to satisfy the Company's
capital commitments for the balance of the aircraft purchase price
and for other aircraft-related expenditures. Other capital
expenditures, such as for rotables and other aircraft components,
are also expected to increase in conjunction with the acquisition
of the new aircraft and jet engines. There can be no assurance
that sufficient financing will be available for all aircraft and
other capital expenditures not covered by committed financing.
As discussed under "US Airways Shuttle" above, the Company is
investigating the purchase of Shuttle, Inc., the owner of the US
Airways Shuttle. The Company's purchase of Shuttle, Inc. would
result in a material capital expenditure.
On October 1, 1997, Standard & Poor's ("S&P") placed the
credit ratings of US Airways Group and US Airways on CreditWatch
with positive implications. During July 1997, S&P raised its
ratings outlook on US Airways Group and US Airways to "Positive"
from "Developing." Credit
28
<PAGE>
ratings issued by such credit rating agencies can have an effect
on a company's ability to issue debt or equity securities and the
effective rate at which such financings are undertaken.
As of September 30, 1997, the Company's ratio of current
assets to current liabilities was approximately 1.05 to 1 and the
Company's debt to equity ratio was 9.31 or 10.68 if the Series H
Preferred Stock is included in the calculation as debt (the Series
H Preferred Stock is mandatorily redeemable, but convertible into
Common Stock).
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
As previously disclosed, The Boeing Company ("Boeing") has
filed suit against US Airways, Inc. ("US Airways") in state court
in King County, Washington seeking unspecified damages for alleged
breach of two aircraft purchase agreements concerning,
respectively, eight B757-200 aircraft and 40 B737-Series aircraft.
On October 31, 1997, US Airways filed an answer and counterclaim
to Boeing's complaint denying liability and seeking recovery from
Boeing of approximately $45 million in equipment purchase deposits
and past overcharges.
US Airways intends to vigorously defend against Boeing's
lawsuit and to prosecute its counterclaim. US Airways cannot
predict the outcome of the lawsuit or whether US Airways' results
of operations and financial condition would be materially affected
as a result of the lawsuit.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
A. EXHIBITS
DESIGNATION DESCRIPTION
4 Certificate of Designation of the Series H Senior
Cumulative Preferred Stock.
10.1 Purchase Agreement dated October 31, 1997 between
US Airways Group, Inc. and AVSA, S.A.R.L, an affiliate of
aircraft manufacturer Airbus Industrie G.I.E. (US Airways
Group, Inc. has applied for confidential treatment for
portions of this exhibit).
10.2 Employment agreement between US Airways, Inc. and its Chief
Financial Officer.
11 Computation of Primary and Fully Diluted Income (Loss) Per
Common Share for the three months and nine months ended
September 30, 1997 for US Airways Group, Inc.
27.1 Financial Data Schedule - US Airways Group, Inc.
27.2 Financial Data Schedule - US Airways, Inc.
B. REPORTS ON FORM 8-K
DATE OF REPORT SUBJECT OF REPORT
October 22, 1997 News release dated October 22, 1997 of
US Airways Group, Inc. and US Airways, Inc.
with consolidated statements of operations
for both companies for the three months and
nine months ended September 30,
29
<PAGE>
1997, and select operating and financial
statistics for US Airways, Inc. US Airways
Group, Inc. also announced that it had
reached an agreement with CFM International
Inc. ("CFMI") for the purchase of CFM56
engines for up to 400 Airbus Industrie G.I.E
("Airbus") 320 family aircraft. In addition,
General Electric Company ("GE"), joint owner
of CFMI, will provide US Airways, Inc. with
delivery positions for nine Airbus aircraft
scheduled for delivery to GE Capital
Aviation Services, Inc., a wholly-owned
subsidiary of GE, in the years 1999 and
2000.
October 1, 1997 News release announcing that US Airways,
Inc. had reached a tentative agreement on a
competitive contract with the Air Line
Pilots Association.
September 11, 1997 US Airways Group, Inc. disclosed that The
Boeing Company had filed suit against US
Airways, Inc. in the Superior Court of the
State of Washington for King County
alleging, among other things, that US
Airways, Inc. had breached aircraft purchase
agreements for eight B757-200 and 40
B737-Series aircraft.
August 18, 1997 US Airways Group, Inc. announced that it was
exercising its right to redeem all of its
outstanding Series B preferred stock at
$51.75 per depositary share plus accrued
dividends of approximately 36.46 cents as of
the redemption date, September 15, 1997.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrants have duly caused this report to be signed
on their behalf by the undersigned thereunto duly authorized.
US Airways Group, Inc. (Registrant)
Date: November 12, 1997 By: /s/ James A. Hultquist
----------------------
James A. Hultquist
Controller
(Chief Accounting Officer)
US Airways, Inc. (Registrant)
Date: November 12, 1997 By: /s/ James A. Hultquist
----------------------
James A. Hultquist
Controller
(Chief Accounting Officer)
(this space intentionally left blank)
30
<PAGE>
EXHIBIT 4
CORRECTED CERTIFICATE OF DESIGNATION
of
SERIES H SENIOR CUMULATIVE CONVERTIBLE PREFERRED STOCK
of
US AIRWAYS GROUP, INC.
Pursuant to Section 103(f) of the General Corporation Law
of the State of Delaware
US Airways Group, Inc., a Delaware corporation (the
"Corporation"), filed a Certificate of Designation of Series H
Senior Cumulative Convertible Preferred Stock of the Corporation
on August 15, 1997, pursuant to, and in accordance with, the
provisions of Section 151 of the General Corporation Law of the
State of Delaware, which contained errors misstating an arithmet-
ical calculation in Sections 3(a) and 8(a). The Certificate of
Designation of Series H Senior Cumulative Convertible Preferred
Stock of the Corporation is set forth in its corrected form below:
Section 1. DESIGNATION AND AMOUNT.
The shares of such series shall be designated as
the "Series H Senior Cumulative Convertible Preferred Stock" (the
"Series H Preferred Stock") and the number of shares initially
constituting such series shall be 358,000, which number may be
decreased (but not increased) by the Board of Directors without a
vote of stockholders; PROVIDED, HOWEVER, that such number may not
be decreased below the number of then currently outstanding shares
of Series H Preferred Stock.
Section 2. DIVIDENDS AND DISTRIBUTIONS.
(a) The holders of shares of Series H Preferred
Stock, in preference to the holders of shares of the Common Stock,
$1 par value (the "Common Stock"), of the Corporation and of any
other capital stock of the Corporation ranking junior to the
Series H Preferred Stock as to payment of dividends, shall be
entitled to receive, when, as and if declared by the Board of
Directors out of funds of the Corporation legally available for
the payment of dividends, cumulative dividends payable in cash at
the annual rate of $92.50 per share, and no more, in equal
quarterly payments on March 31, June 30, September 30 and December
31 (or if any of such days is not a Business Day, the Business Day
next preceding such day) in each year (each such date being
<PAGE>
referred to herein as a "Quarterly Dividend Payment Date", and any
dividend not paid on such date being referred to herein as "past
due"), commencing on the first Quarterly Dividend Payment Date
which is at least 10 days after the date of original issue of the
Series H Preferred Stock; PROVIDED, HOWEVER, that if any appli-
cable dividend payment or redemption payment is not made on a
Quarterly Dividend Payment Date or the date set for such redemp-
tion, respectively, thereafter all such dividend payments and
redemption payments that are past due and unpaid shall accrue
interest at (A) the higher of (x) an annual rate of 9 1/4% or (y)
an annual rate (determined as of each Quarterly Dividend Payment
Date) equal to 5% plus the "prime rate" as reported in THE WALL
STREET JOURNAL (or, if not reported therein, as such rate may be
from time to time publicly announced by The Chase Manhattan Bank)
on the date of publication closest to the date of determination or
(B) such lesser rate as may be the maximum rate that is permitted
by applicable law (in either case compounded quarterly), with the
amount of such interest added to accrued dividend payments or
redemption payments, respectively, until all such dividend
payments and redemption payments shall have been paid in full (or
declared and funds sufficient therefor Set Apart for Payment); and
PROVIDED, FURTHER, that in the case of a redemption payment
required to be made pursuant to Section 5(d) hereof that is not
made on the date set for such redemption the interest accrued
pursuant to clause (y) of the previous proviso shall increase each
month by an annual rate of 100 basis points, up to a maximum of
19%, or such lesser rate as may be the maximum rate that is
permitted by applicable law.
(b) Dividends payable pursuant to paragraph
(a)of this Section 2 shall begin to accrue and be cumulative from
July 1, 1997. The amount of dividends so payable shall be deter-
mined on the basis of twelve 30-day months and a 360-day year.
Accrued but unpaid dividends shall bear interest as provided in
the last proviso of paragraph (a) of this Section 2. Dividends
paid on the shares of Series H Preferred Stock in an amount less
than the total amount of such dividends at the time accrued and
payable on such shares shall be allocated pro rata on a share-by-
share basis among all such shares at the time outstanding. The
Board of Directors may fix a record date for the determination of
holders of shares of Series H Preferred Stock entitled to receive
payment of a dividend declared thereon, which record date shall be
no more than 60 days nor less than 10 days prior to the date fixed
for the payment thereof.
(c) In case the Corporation shall at any time
or from time to time declare, order, pay or make a dividend or
other distribution (including, without limitation, any
distribution of stock or other securities or property or rights or
<PAGE>
warrants to subscribe for securities of the Corporation or any of
its Subsidiaries by way of dividend or spinoff or Rights) on its
Common Stock, other than (i) dividends payable in cash in an
aggregate amount in any fiscal year which, when declared, are not
expected to exceed the net income of the Corporation during such
year from continuing operations before extraordinary items, as
determined in accordance with generally accepted accounting
principles consistently applied in accordance with past practice,
or (ii) any dividend or distribution of shares of Common Stock,
then, and in each such case (a "Triggering Distribution"), the
holders of shares of Series H Preferred Stock shall be entitled to
receive from the Corporation, with respect to each share of Series
H Preferred Stock held, the same dividend or distribution received
by a holder of the number of shares of Common Stock into which
such share of Series H Preferred Stock is convertible on the
record date for such dividend or distribution. Any such dividend
or distribution shall be declared, ordered, paid or made on the
Series H Preferred Stock at the same time such dividend or
distribution is declared, ordered, paid or made on the Common
Stock.
(d) The holders of shares of Series H Preferred
Stock shall not be entitled to receive any dividends or other
distributions except as provided in this Certificate of Designa-
tion of Series H Senior Cumulative Convertible Preferred Stock.
Section 3. VOTING RIGHTS.
In addition to any voting rights provided elsewhere
herein and in the Corporation's Restated Certificate of Incorpo-
ration, as it may be amended or restated from time to time (the
"Certificate of Incorporation"), and any voting rights provided by
law, the holders of shares of Series H Preferred Stock shall have
the following voting rights:
(a) Each share of Series H Preferred Stock
shall be entitled to 25.8099 votes, subject to adjustment in the
manner set forth in paragraph (b) of Section 8. Except as other-
wise provided herein, or by the Certificate of Incorporation, or
by law, the shares of Series H Preferred Stock and the shares of
Common Stock (and any other shares of capital stock of the
Corporation at the time entitled thereto) shall vote together as
one class on all matters submitted to a vote of stockholders of
the Corporation.
(b) So long as any shares of Series H Preferred
Stock shall be outstanding and unless the consent or approval of a
<PAGE>
greater number of shares shall then be required by law, without
first obtaining the consent or approval of the holders of at least
two-thirds of the number of then-outstanding shares of Series H
Preferred Stock, voting as a single class, given in person or by
proxy at a meeting at which the holders of such shares shall be
entitled to vote separately as a class, or by written consent, the
Corporation shall not: (i) authorize or create any class or
series, or any shares of any class or series, of stock having any
preference or priority as to dividends or upon redemption,
liquidation, dissolution, or winding up over the Series H Pre-
ferred Stock, or redeemable prior to the time that the Series H
Preferred Stock may be redeemable pursuant to Section 5 ("Senior
Stock"); (ii) authorize or create any class or series, or any
shares of any class or series, of stock ranking on a parity
(either as to dividends or upon liquidation, dissolution or
winding up) with the Series H Preferred Stock or redeemable at or
prior to the time that the Series H Preferred Stock may be
redeemable pursuant to Section 5 ("Parity Stock"), PROVIDED,
HOWEVER, that no such vote shall be required with respect to the
authorization or creation by the Corporation of one or more new
series of Senior Preferred Stock or Preferred Stock that is Parity
Stock if (A) the aggregate purchase price (excluding transaction-
related expenses) of all shares of such series is equal to or
greater than the aggregate liquidation preference of all shares of
such series, (B) the aggregate liquidation preference (excluding
accrued but unpaid dividends) of all shares of such series of
Preferred Stock does not exceed $150,000,000, and (C) shares of
any such new series shall be issued only to an employee stock
ownership plan, employee stock ownership trust or other similar
arrangement organized and maintained by the Corporation for the
benefit of its employees; (iii) reclassify any shares of stock of
the Corporation into shares of Senior Stock or Parity Stock; (iv)
authorize any security exchangeable for, convertible into, or
evidencing the right to purchase any shares of Senior Stock or
Parity Stock: (v) amend, alter or repeal the Certificate of
Incorporation to alter or change the preferences, rights or powers
of the Series H Preferred Stock so as to affect the Series H
Preferred Stock adversely or to increase the authorized number of
shares of Series H Preferred Stock; or (vi) effect the voluntary
liquidation, dissolution or winding up of the Corporation, or the
sale, lease, conveyance or exchange of all or substantially all of
the assets, property or business of the Corporation, or the merger
or consolidation of the Corporation with or into any other
corporation; PROVIEDED, HOWEVER, that no separate vote of the
holders of the Series H Preferred Stock as a class shall be
required in the case of a merger or consolidation or a sale,
lease, conveyance or exchange of all or substantially all of the
assets, property or business of the Corporation (such transactions
<PAGE>
being hereinafter in this proviso referred to as a "reorga-
nization") if (A) the resulting, surviving or acquiring corpora
tion will have after such reorganization no stock either autho-
rized or outstanding ranking prior to, or on a parity with, the
Series H Preferred Stock or the stock of the resulting, surviving
or acquiring corporation issued in exchange therefor (except such
stock of the Corporation as may have been authorized or outstand-
ing immediately preceding such reorganization, or such stock of
the resulting, surviving or acquiring corporation containing
substantially the same relative rights and preferences as the
stock of the Corporation for which it may be exchanged ("Exchanged
Stock"), which Exchanged Stock was outstanding immediately
preceding such reorganization and at such time ranked prior to, or
on a parity with, the Series H Preferred Stock) and (B) each
holder of shares of Series H Preferred Stock immediately preceding
such reorganization will receive in exchange therefor the same
number of shares of stock, with substantially the same
preferences, rights and powers, of the resulting, surviving, or
acquiring corporation or the Corporation is the surviving corpo-
ration and the Series H Preferred Stock remains outstanding
without change to its preferences, rights and powers, provided
that nothing in this proviso shall require that such other stock
or Series H Preferred Stock have any rights upon conversion save
those specified in Section 8(b)(iii) hereof.
(c) Whenever (i) dividends payable on shares of
the Series H Preferred Stock pursuant to the terms of paragraphs
(a) and (b) of Section 2 shall have been in arrears and not paid
in full at or before thirty (30) days following any Quarterly
Dividend Payment Date (a "Dividend Default"), thereafter and until
all such dividends shall have been paid in full or declared and
Set Apart for Payment, or (ii) the Corporation shall have violated
any of the covenants contained in Section 4 and such violation
shall be continuing, or (iii) the Corporation shall have not
redeemed shares of Series H Preferred Stock within five (5)
Business Days of the date such redemption is required by Section 5
(a "Redemption Default"), thereafter and until such redemption
shall have been performed or all funds necessary therefor Set
Apart for Payment, or (iv) the Corporation shall have not
distributed any dividend or other distribution distributable to
the holders of shares of Series H Preferred Stock pursuant to the
terms of paragraph (c) of Section 2 within five (5) Business Days
of the date such distribution is required by paragraph (c) of
Section 2 (a "Distribution Default"), thereafter and until such
distribution shall have been made, the holders of shares of Series
H Preferred Stock shall have the right, notwithstanding anything
to the contrary in the Corporation's Certificate of Incorporation
or By-Laws, voting together as a single class, to elect two
<PAGE>
directors. Such right of the holders of Series H Preferred Stock
to vote for the election of directors may be exercised at any
annual meeting or at any special meeting called for such purpose
as hereinafter provided or at any adjournment thereof, or by the
written consent, delivered to the Secretary of the Corporation, of
the holders of a majority of all outstanding shares of Series H
Preferred Stock as of the record date of such written consent,
until any Dividend Default, Redemption Default and Distribution
Default shall have been cured, and any covenant violation shall
cease to be continuing, at which time the term of office of the
directors so elected shall terminate automatically. So long as
such right to vote continues (and unless such right has been
exercised by written consent of the holders of a majority of the
outstanding shares of Series H Preferred Stock as hereinabove
authorized), the Secretary of the Corporation may call, and upon
the written request of the holders of record of a majority of the
outstanding shares of Series H Preferred Stock addressed to him at
the principal office of the Corporation shall call, a special
meeting of the holders of such shares for the election of such
directors as provided herein. Such meeting shall be held within
30 days after delivery of such request to the Secretary, at the
place and upon the notice provided by law and in the By-Laws or in
the notice of meeting for the holding of meetings of stockholders.
No such special meeting or adjournment thereof shall be held on a
date less than 30 days before an annual meeting of stockholders or
any special meeting in lieu thereof. If at any such annual or
special meeting or any adjournment thereof the holders of a
majority of the then outstanding shares of Series H Preferred
Stock entitled to vote in such election shall be present or
represented by proxy, or if the holders of a majority of the
outstanding shares of Series H Preferred Stock shall have acted by
written consent in lieu of a meeting with respect thereto, then
the authorized number of directors shall be increased by two and
the holders of the Series H Preferred Stock shall be entitled to
elect such additional directors. The absence of a quorum of the
holders of any other class or series of capital stock of the
Corporation at any such annual or special meeting shall not affect
the exercise by the holders of the Series H Preferred Stock of
such voting rights. Directors so elected shall serve until the
next annual meeting or until their successors shall be elected and
shall qualify, unless the term of office of the persons so elected
as directors shall have terminated under the circumstances set
forth in the second sentence of this paragraph (c). In case of
any vacancy occurring among the directors elected by the holders
of the Series H Preferred Stock as a class, the remaining director
who shall have been so elected may appoint a successor to hold
office for the unexpired term of the director whose place shall be
vacant. If both directors so elected by the holders of Series H
<PAGE>
Preferred Stock as a class shall cease to serve as directors
before their terms shall expire, the holders of the Series H
Preferred Stock then outstanding and entitled to vote for such
directors may, by written consent as hereinabove provided, or at a
special meeting of such holders called as provided above, elect
successors to hold office for the unexpired terms of the directors
whose places shall be vacant. After the holders of Series H
Preferred Stock shall have exercised their right to elect direc-
tors pursuant to the terms of this paragraph (c), the authorized
number of directors shall not be increased or decreased, regard-
less of the terms of any Junior Stock, or decreased, regardless of
the terms of any other stock of the Corporation, except by a class
vote of the holders of Series H Preferred Stock as provided above.
The rights of the holders of Series H Preferred Stock to elect
directors pursuant to the terms of this paragraph (c) shall not be
adversely affected by the voting or other rights applicable to any
other security of the Corporation. Notwithstanding anything to
the contrary in this paragraph (c), the directors elected or
appointed pursuant to this paragraph (c) as a result of a Dividend
Default shall not be elected or appointed until they have been
approved by the Corporation, such approval not to be unreasonably
withheld or delayed.
(d) Except as provided in this Certificate of
Designation of Series H Senior Cumulative Convertible Preferred
Stock (including, without limitation, the right to vote with the
Common Stock on all matters submitted to a vote of stockholders of
the Corporation as set forth in paragraph (a) of this Section 3)
or in the Certificate of Incorporation, or as required by law, the
holders of shares of Series H Preferred Stock shall have no voting
rights and their consent shall not be required for the taking of
any corporate action.
Section 4. CERTAIN RESTRICTIONS.
(a) Whenever (i) a Dividend Default has
occurred, thereafter and until all accrued and unpaid dividends,
whether or not declared, shall have been paid in full or declared
and Set Apart for Payment, or (ii) a Distribution Default has
occurred, thereafter and until all dividends or other distribu-
tions distributable pursuant to the terms of paragraph (c) of
Section 2 shall have been distributed, or (iii) a Redemption
Default has occurred, thereafter and until all mandatory redemp-
tion payments shall have been made or all necessary funds shall
have been Set Apart for Payment, the Corporation shall not, nor
shall it permit any of its Subsidiaries to: (A) declare or pay
dividends, or make any other distributions, on any shares of
Common Stock or other capital stock ranking junior (either as to
<PAGE>
dividends or upon liquidation, dissolution or winding up) to the
Series H Preferred Stock, other than dividends or distributions
payable in Junior Stock or in Rights; (B) declare or pay divi-
dends, or make any other distributions, on any shares of Parity
Stock, other than dividends or distributions payable in Junior
Stock or Rights, except dividends paid ratably on the Series H
Preferred Stock and all Parity Stock on which dividends are
payable or in arrears, in proportion to the total amounts to which
the holders of all such shares are then entitled; (C) redeem or
purchase or otherwise acquire for consideration (other than Junior
Stock) any shares of Junior Stock or Parity Stock (other than,
with respect to Parity Stock, ratably with the Series H Preferred
Stock); or (D) purchase or otherwise acquire for consideration any
shares of Series H Preferred Stock; PROVIDED, HOWEVER, that the
Corporation may redeem shares of the Series H Preferred Stock
pursuant to Section 5 hereof and may purchase Series H Preferred
Stock offered for sale to the Corporation.
(b) Notwithstanding the foregoing, nothing
herein shall prevent the Corporation from (i) declaring a dividend
or distribution of Rights (subject to compliance with paragraph
(c) of Section 2), or issuing Rights in connection with the
issuance of Junior Stock, Parity Stock or the Series H Preferred
Stock or (ii) redeeming Rights at a price not to exceed $.03 per
Right.
(c) The Corporation shall not permit any
Subsidiary of the Corporation to purchase or otherwise acquire for
consideration any shares of capital stock of the Corporation
unless the Corporation could, pursuant to paragraph (a) of this
Section 4, purchase or otherwise acquire such shares at such time
and in such manner.
Section 5. REDEMPTION.
(a) On August 7, 1999 (if any shares of Series
H Preferred Stock remain outstanding), the Corporation shall
redeem all outstanding shares of Series H Preferred Stock, by
paying therefor in cash $1,000 per share plus all Accrued
Dividends thereon to the date of redemption.
(b) The Corporation shall have no right to
redeem any share of Series H Preferred Stock prior to March 15,
1998.
(c) On and after March 15, 1998, the Corpora-
tion shall have the right, at its sole option and election, to
redeem, at any time, all (but not less than all) of the outstand
<PAGE>
ing shares of Series H Preferred Stock by paying therefor in cash
$1,150 per share plus all Accrued Dividends thereon to the date of
redemption.
(d) In the event there occurs a Change in Con-
trol, any holder of shares of Series H Preferred Stock may require
the Corporation to redeem all (but not less than all) of the
shares of Series H Preferred Stock held by such holder at a price
equal to, at the sole option and election of the holder, either,
(i) $1,000 per share, or (ii) an amount per share equal to the
Event Price of the shares of Common Stock into which such share of
Series H Preferred Stock is then convertible, plus, in either
case, all Accrued Dividends thereon to the date of redemption.
(e) In the event that the Corporation shall
redeem, repurchase, exchange any security or property for, or
otherwise acquire for consideration any shares of Common Stock
(excluding any transaction to which clause (b)(iii) of Section 8
hereof applies) at a price equal to or greater than the Conversion
Price, then, and in each such case, any holder of shares of Series
H Preferred Stock may require the Corporation, at the sole option
and election of the holder, to redeem a number of shares of such
holder's Series H Preferred Stock which does not exceed the
product (rounded, upward or downward, to the nearest whole share)
of (A) the percentage (expressed as a decimal) of the
Corporation's Common Stock outstanding immediately prior to the
acquisition that the Corporation acquired through redemption,
repurchase, exchange or otherwise, multiplied by (B) the total
number of shares of Series H Preferred Stock held by such holder,
at a price per share equal to the sum of (X) the product of (1)
the number of shares of the Corporation's Common Stock into which
a share of the Series H Preferred Stock is convertible immediately
prior to such redemption, repurchase, exchange or other
acquisition, multiplied by (2) the per share price (or the Fair
Market Value in the event of non-cash consideration) paid for a
share of Common Stock in such redemption, repurchase, exchange or
other acquisition, plus (Y) all Accrued Dividends thereon to the
date of redemption.
(f)(i) Notice of any redemption of shares of Series
H Preferred Stock pursuant to paragraphs (a), (b) or (c) of this
Section 5 shall be given by publication in a newspaper of general
circulation in the Borough of Manhattan not less than thirty nor
more than sixty days prior to the date fixed for redemption, if
the Series H Preferred Stock is listed on any national securities
exchange or traded in the over-the-counter market; and, in any
case, a similar notice shall be mailed not less than thirty, but
<PAGE>
not more than sixty, days prior to such date to each holder of
shares of Series H Preferred Stock to be redeemed, at such
holder's address as it appears on the transfer books of the
Corporation. In order to facilitate the redemption of shares of
Series H Preferred Stock, the Board of Directors may fix a record
date for the determination of shares of Series H Preferred Stock
to be redeemed, not more than sixty days or less than thirty days
prior to the date fixed for such redemption.
(ii) Until any record holder of shares of
Series H Preferred Stock shall have notified the Corporation in
writing that notices of events which, pursuant to paragraphs (d)
or (e) of this Section 5, give the holder or holders the right to
require the Corporation to redeem any of such shares should be
given by the Corporation in accordance with the terms of subpara-
graph (iii) below, notice of an event which, pursuant to para-
graphs (d) or (e) of this Section 5 gives the holder or holders
the right to require the Corporation to redeem any of such shares,
shall be given by telex or telecopy to the holders of the Series H
Preferred Stock sufficiently in advance of such event that such
holders can, by similar telexed or telecopied notice in advance of
the event, elect to have such shares of Series H Preferred Stock
eligible for redemption and so held redeemed by the Corporation,
and if such an election is made the Corporation shall redeem the
number of shares so specified concurrently with the event. It is
the intent of the Corporation in the circumstances described in
the preceding sentence to provide notice and the opportunity for
redemption at the earliest possible time, so that if it is not
possible to provide notice in advance of a specified event, notice
shall be given as soon as possible thereafter so that the holder
or holders, if they elect to redeem, will be entitled to redeem,
and the Corporation will effect redemption of the shares
specified, as soon as possible thereafter. Any election by a
holder to redeem pursuant to paragraphs (d) and (e) of this
Section 5, specifying the number of shares to be redeemed, must be
made in writing (which may be telexed, telecopied, or otherwise
delivered) within the later of (A) fifteen (15) Business Days
following receipt by the holder of the telexed or telecopied
notice required by this subparagraph, or (B) in the event of a
tender or exchange offer, the consummation of such offer, and the
redemption date shall be no later than the day following receipt
by the Corporation of such election. Failure of the Corporation
to give any notice required by this subparagraph (ii), or the
formal insufficiency of any such notice, shall not prejudice the
rights of any holders of shares of Series H Preferred Stock to
cause the Corporation to redeem any such shares held by them.
(iii) If any record holder of shares of
<PAGE>
Series H Preferred Stock shall have notified the Corporation in
writing that notice of redemption pursuant to paragraphs (d) or
(e) of this Section 5 should be given by the Corporation in
accordance with the terms of this subparagraph (iii), rather than
in accordance with the terms of subparagraph (ii) above, then and
thereafter, on the date of an event giving a holder of shares of
Series H Preferred Stock the right, pursuant to paragraphs (d) or
(e) of this Section 5, to require the Corporation to redeem any of
such shares, the Corporation shall give notice by mail to each
holder of Series H Preferred Stock, at such holder's address as it
appears on the transfer books of the Corporation, of such event,
which notice shall set forth each holder's right to require the
Corporation to redeem any or all shares of Series H Preferred
Stock held by him which are eligible for redemption pursuant to
the terms of paragraphs (d) or (e), the redemption date (which
date shall be twenty (20) days following the date of such mailed
notice), and the procedures to be followed by such holder in
exercising his right to cause such redemption; and, as soon as
practical, if the Series H Preferred Stock is listed on any
national securities exchange or traded in the over-the-counter
market, a similar notice shall be given by publication in a
newspaper of general circulation in the Borough of Manhattan. In
the event a record holder of shares of Series H Preferred Stock
shall elect to require the Corporation to redeem any or all such
shares of Series H Preferred Stock pursuant to paragraphs (d) or
(e) of this Section 5, such holder shall deliver within twenty
(20) calendar days of the mailing to him of the Corporation's
notice described in this subparagraph (iii), a written notice to
the Corporation so stating, specifying the number of shares to be
redeemed pursuant to paragraphs (d) or (e) of this Section 5. The
Corporation shall, in accordance with the terms hereof, redeem the
number of shares so specified on the date fixed for redemption.
Failure of the Corporation to give any notice required by this
subparagraph (iii), or the formal insufficiency of any such
notice, shall not prejudice the rights of any holders of shares of
Series H Preferred Stock to cause the Corporation to redeem any
such shares held by them.
(iv) Notice having been given pursuant to
paragraph (f) of this Section 5, from and after the date specified
therein as the date of redemption, unless default shall be made by
the Corporation in providing for the payment of the applicable
redemption price, all dividends on the Series H Preferred Stock
thereby called for redemption shall cease to accrue, and from and
after the date of redemption so specified, unless default shall be
made by the Corporation as aforesaid, or from and after the date
(prior to the date of redemption so
<PAGE>
specified) on which the Corporation shall provide for the payment
of the redemption price
by depositing the requisite amount of moneys (and other property,
if applicable) with a bank or trust company doing business in the
Borough of Manhattan, The City of New York, and having a capital
and surplus of at least $50,000,000, PROVIDED that the notice of
redemption shall state the intention of the Corporation to deposit
such moneys (and other property, if applicable) on a date in such
notice specified, all rights of the holders thereof as
stockholders of the Corporation, except the right to receive the
applicable redemption price (but without interest) and except the
right to exercise any privileges of conversion, shall cease and
terminate. Any interest allowed on moneys so deposited shall be
paid to the Corporation. Any moneys (and other property, if
applicable) so deposited which shall remain unclaimed by the
holders of such Series H Preferred Stock at the end of six years
after the redemption date shall become the property of, and be
paid by such bank or trust company to, the Corporation. If the
Corporation shall default in providing for the redemption price as
required pursuant to this Section 5, interest on such redemption
price shall accrue and be added to the required redemption
payments as provided in paragraph (a) of Section 2. Except for
any amounts deposited in payment of Accrued Dividends, in the
event that moneys are deposited pursuant to this paragraph in
respect of shares of Series H Preferred Stock that are converted
in accordance with the provisions of Section 8, such moneys shall,
upon such conversion revert to the general funds of the
Corporation, and upon demand, such bank or trust company shall pay
over to the Corporation such moneys and shall be relieved of all
responsibility to the holders of such converted shares in respect
thereof.
Section 1. REACQUIRED SHARES.
Any shares of Series H Preferred Stock converted,
redeemed, purchased or otherwise acquired by the Corporation in
any manner whatsoever shall be retired and cancelled promptly
after the acquisition thereof, and, if necessary to provide for
the lawful redemption or purchase of such shares, the capital
represented by such shares shall be reduced in accordance with the
General Corporation Law of the State of Delaware. All such shares
shall upon their cancellation become authorized but unissued
shares of Senior Preferred Stock, without par value, of the
Corporation and may be reissued as part of another series of
Senior Preferred Stock, without par value, of the Corporation
subject to the conditions or restrictions on authorizing or
creating any class or series, or any shares of any class or
<PAGE>
series, set forth in paragraph (b) of Section 3.
Section 2. LIQUIDATION, DISSOLUTIONOR WINDING UP.
(a) If the Corporation shall adopt a plan of
liquidation or of dissolution, or commence a voluntary case under
the Federal bankruptcy laws or any other applicable state or
Federal bankruptcy, insolvency or similar law, or consent to the
entry of an order for relief in any involuntary case under any
such law or to the appointment of a receiver, liquidator, as-
signee, custodian, trustee or sequestrator (or similar official)
of the Corporation or of any substantial part of its property, or
make an assignment for the benefit of its creditors, or admit in
writing its inability to pay its debts generally as they become
due and on account of such event the Corporation shall liquidate,
dissolve or wind up, or upon any other liquidation, dissolution or
winding up of the Corporation, no distribution shall be made (i)
to the holders of shares of Junior Stock, unless, prior thereto,
the holders of shares of Series H Preferred Stock shall have
received $1,000 per share plus all Accrued Dividends thereon to
the date of such payment or (ii) to the holders of shares of
Parity Stock, except distributions made ratably on the Series H
Preferred Stock and all such Parity Stock in proportion to the
total amounts to which the holders of all such shares are entitled
upon such liquidation, dissolution or winding up of the Corpora-
tion.
(b) Neither the consolidation, merger or other
business combination of the Corporation with or into any other
Person or Persons nor the sale, lease, exchange or conveyance of
all or any part of the property, assets or business of the
Corporation to a Person or Persons other than the holders of the
Corporation's Junior Stock, shall be deemed to be a liquidation,
dissolution or winding up of the Corporation for purposes of this
Section 7.
Section 3. CONVERSION.
Each share of Series H Preferred Stock may, at the
option of the holder thereof, be converted into shares of Common
Stock, on the terms and conditions set forth in this Section 8, at
any time.
<PAGE>
(a) Subject to the provisions for adjustment
hereinafter set forth, each share of Series H Preferred Stock
shall be convertible in the manner hereinafter set forth into
<PAGE>
25.8099 fully paid and nonassessable shares of Common Stock.
(b) The number of shares of Common Stock into
which each share of Series H Preferred Stock is convertible, and
the number of votes to which the holder of a share of Series H
Preferred Stock is entitled pursuant to paragraph (a) of Section
3, shall be subject to adjustment from time to time as follows:
(i) In case the Corporation shall at any time or
from time to time declare a dividend, or make a distribution, on
the outstanding shares of Common Stock in shares of Common Stock
or subdivide or reclassify the outstanding shares of Common Stock
into a greater number of shares or combine or reclassify the
outstanding shares of Common Stock into a smaller number of shares
of Common Stock, then, and in each such case,
(A) the number of shares of Common Stock
into which each share of Series H Preferred Stock is convertible
shall be adjusted so that the holder of each share thereof shall
be entitled to receive, upon the conversion thereof, the number of
shares of Common Stock which the holder of a share of Series H
Preferred Stock would have been entitled to receive after the
happening of any of the events described above had such share been
converted immediately prior to the happening of such event or the
record date therefor, whichever is earlier;
(B) the number of votes to which a
holder of a share of Series H Preferred Stock is entitled pursuant
to paragraph (a) of Section 3 shall be adjusted so that, after the
happening of any of the events described above, such holder shall
be entitled to a number of votes equal to (I) the number of votes
to which such holder was entitled pursuant to paragraph (a) of
Section 3 immediately prior to such happening multiplied by (II) a
fraction, the numerator of which is the number of shares of Common
Stock into which one share of Series H Preferred Stock was
convertible immediately after such happening and the denominator
of which is the number of shares of Common Stock into which one
share of Series H Preferred Stock was convertible immediately
prior to such happening; and
(C) an adjustment made pursuant to
this clause (i) shall become effective (I) in the case of any such
dividend or distribution, (1) immediately after the close of
business on the record date for the determination of holders of
shares of Common Stock entitled to receive such dividend or
distribution, for purposes of subclause (A), and (2) immediately
after the close of business on the date of payment of such
<PAGE>
dividend or distribution, for purposes of subclause (B), or (II)
in the case of any such subdivision, reclassification or combina-
tion, at the close of business on the day upon which such corpo-
rate action becomes effective, for purposes of both subclause (A)
and subclause (B).
(ii) In case the Corporation shall issue
shares of Common Stock (or rights or warrants or other securities
convertible into or exchangeable for shares of Common Stock) at a
price per share (or having an exercise or conversion price per
share) less than the Conversion Price as of the date of issuance
of such shares (or of such rights, warrants or other convertible
securities), other than (X) in a transaction to which paragraph
(c) of Section 2 or subparagraph (i) of this paragraph (b) is
applicable, (Y) pursuant to any plan providing for the reinvest-
ment of dividends or interest payable on securities of the
Corporation, and the investment of additional option amounts, in
shares of Common Stock, in any such case at a price per share of
not less than 95% of the current market price (determined as
provided in such plans) per share of Common Stock, or pursuant to
any employee benefit plan or program of the Corporation or
pursuant to the Rights, or (Z) as consideration for the acquisi-
tion of a business, then, and in each such case,
(A) the number of shares of Common
Stock into which each share of Series H Preferred Stock is
convertible shall be adjusted so that the holder of each share
thereof shall be entitled to receive, upon the conversion thereof,
the number of shares of Common Stock determined by multiplying the
number of shares of Common Stock into which such share was
convertible on the day immediately prior to such date of issuance
by a fraction, (I) the numerator of which is the sum of (1) the
number of shares of Common Stock outstanding on such date and (2)
the number of additional shares of Common Stock issued (or into
which the convertible securities may convert), and (II) the
denominator of which is the sum of (1) the number of shares of
Common Stock outstanding on such date and (2) the number of shares
of Common Stock which the aggregate consideration receivable by
the Corporation for the total number of shares of Common Stock so
issued (or into which the convertible securities may convert)
would purchase at the Conversion Price on such date. For purposes
of this subparagraph, the aggregate consideration receivable by
the Corporation in connection with the issuance of shares of
Common Stock or of securities convertible into shares of Common
Stock shall be deemed to be equal to the sum of the net offering
price (after deduction of underwriting discounts or commissions
<PAGE>
<PAGE>
and expenses payable to third parties) of all such securities plus
the minimum aggregate amount, if any, payable upon conversion of
any such convertible securities into shares of Common Stock;
(B) the number of votes to which a
holder of a share of Series H Preferred Stock is entitled pursuant
to paragraph (a) of Section 3 shall be adjusted so that, after the
happening of any of the events described above, such holder shall
be entitled to a number of votes equal to (I) the number of votes
to which such holder was entitled pursuant to paragraph (a) of
Section 3 immediately prior to such happening multiplied by (II) a
fraction, the numerator of which is the number of shares of Common
Stock into which one share of Series H Preferred Stock was
convertible immediately after such happening and the denominator
of which is the number of shares of Common Stock into which one
share of Series H Preferred Stock was convertible immediately
prior to such happening; and
(C) such adjustment shall become
effective immediately after the date of such issuance for purposes
of subclauses (A) and (B).
(iii) In case the Corporation shall be a party to
any transaction (including, without limitation, a merger, consol-
idation, sale of all or substantially all of the Corporation's
assets, liquidation or recapitalization of the Common Stock and
excluding any transaction to which clause (i) or (ii) of this
paragraph (b) applies) in which the previously outstanding Common
Stock shall be changed into or, pursuant to the operation of law
or the terms of the transaction to which the Corporation is a
party, exchanged for different securities of the Corporation or
common stock or other securities of another Corporation or
interests in a noncorporate entity or other property (including
cash) or any combination of any of the foregoing, then, as a
condition of the consummation of such transaction, lawful and
adequate provision shall be made so that each holder of shares of
Series H Preferred Stock shall be entitled, upon conversion, to an
amount per share equal to (A) the aggregate amount of stock,
securities, cash and/or any other property (payable in kind), as
the case may be, into which or for which each share of Common
Stock is changed or exchanged times (B) the number of shares of
Common Stock into which a share of Series H Preferred Stock is
convertible immediately prior to the consummation of such trans-
action.
(c) In case the Corporation shall be a party to
a transaction described in subparagraph (b)(iii) above resulting
in the change or exchange of the Corporation's Common Stock then,
<PAGE>
from and after the date of announcement of the pendency of such
subparagraph (b)(iii) transaction until the effective date
thereof, each share of Series H Preferred Stock may be converted,
at the option of the holder thereof, into shares of Common Stock
on the terms and conditions set forth in this Section 8, and if so
converted during such period, such holder shall be entitled to
receive such consideration in exchange for such holder's shares of
Common Stock as if such holder had been the holder of such shares
of Common Stock as of the record date for such change or exchange
of the Common Stock.
(d) The Board of Directors may increase the
number of shares of Common Stock into which each share of Series H
Preferred Stock may be converted, in addition to the adjustments
required by this Section 8, as shall be determined by it (as
evidenced by a resolution of the Board of Directors) to be
advisable in order to avoid or diminish any income deemed, for
federal income tax purposes, to be received by any holder of
shares of Common Stock or Series H Preferred Stock resulting from
any events or occurrences giving rise to adjustments pursuant to
this Section 8 or from any other similar event.
(e) The holder of any shares of Series H Pre-
ferred Stock may exercise his right to convert such shares into
shares of Common Stock by surrendering for such purpose to the
Corporation, at its principal office or at such other office or
agency maintained by the Corporation for that purpose, a certifi-
cate or certificates representing the shares of Series H Preferred
Stock to be converted accompanied by a written notice stating that
such holder elects to convert all or a specified whole number of
such shares in accordance with the provisions of this Section 8
and specifying the name or names in which such holder wishes the
certificate or certificates for shares of Common Stock to be
issued. In case such notice shall specify a name or names other
than that of such holder, such notice shall be accompanied by
payment of all transfer taxes payable upon the issuance of shares
of Common Stock in such name or names. Other than such taxes, the
Corporation will pay any and all issue and other taxes (other than
taxes based on income) that may be payable in respect of any issue
or delivery of shares of Common Stock on conversion of Series H
Preferred Stock pursuant hereto. As promptly as practicable, and
in any event within three Business Days after the surrender of
such certificate or certificates and the receipt of such notice
relating thereto and, if applicable, payment of all transfer taxes
(or the demonstration to the satisfaction of the Corporation that
such taxes have been paid), the Corporation shall deliver or cause
<PAGE>
to be delivered (i) certificates representing the number of
validly issued, fully paid and nonassessable full shares of Common
Stock to which the holder of shares of Series H Preferred Stock so
converted shall be entitled and (ii) if less than the full number
of shares of Series H Preferred Stock evidenced by the surrendered
certificate or certificates are being converted, a new certificate
or certificates, of like tenor, for the number of shares evidenced
by such surrendered certificate or certificates less the number of
shares converted. Such conversion shall be deemed to have been
made at the close of business on the date of giving of such notice
and of such surrender of the certificate or certificates
representing the shares of Series H Preferred Stock to be con-
verted so that the rights of the holder thereof as to the shares
being converted shall cease except for the right to receive shares
of Common Stock and Accrued Dividends in accordance herewith, and
the person entitled to receive the shares of Common Stock shall be
treated for all purposes as having become the record holder of
such shares of Common Stock at such time. The Corporation shall
not be required to convert, and no surrender of shares of Series H
Preferred Stock shall be effective for that purpose, while the
transfer books of the Corporation for the Common Stock are closed
for any purpose (but not for any period in excess of 15 calendar
days); but the surrender of shares of Series H Preferred Stock for
conversion during any period while such books are so closed shall
become effective for conversion immediately upon the reopening of
such books, as if the conversion had been made on the date such
shares of Series H Preferred Stock were surrendered, and at the
conversion rate in effect at the date of such surrender.
(f) Shares of Series H Preferred Stock may be
converted at any time up to the close of business on the second
Business Day preceding the date fixed for redemption of such
shares pursuant to Section 5 hereof.
(g) Upon conversion of any shares of Series H
Preferred Stock, the holder thereof shall be entitled to receive
any Accrued Dividends in respect of the shares so converted to the
date of conversion.
(h) In connection with the conversion of any
shares of Series H Preferred Stock, no fractions of shares of
Common Stock shall be issued, but in lieu thereof the Corporation
shall pay a cash adjustment in respect of such fractional interest
in an amount equal to such fractional interest multiplied by the
Current Market Price per share of Common Stock on the day on which
such shares of Series H Preferred Stock are deemed to have been
converted.
<PAGE>
(i) The Corporation shall at all times reserve
and keep available out of its authorized and unissued Common
Stock, solely for the purpose of affecting the conversion of the
Series H Preferred Stock, such number of shares of Common Stock as
shall from time to time be sufficient to effect the conversion of
all then outstanding shares of Series H Preferred Stock. The
Corporation shall from time to time, subject to and in accordance
with the General Corporation Law of the State of Delaware,
increase the authorized amount of Common Stock if at any time the
number of authorized shares of Common Stock remaining unissued
shall not be sufficient to permit the conversion at such time of
all then outstanding shares of Series H Preferred Stock.
(j) In computing the adjustment which a holder
of Series H Preferred Stock shall receive pursuant to paragraph
(b) of this Section, the fact that shares of Series H Preferred
Stock may not be presently convertible shall be ignored and such
computation shall be made as if such shares were presently
convertible.
(k) Notwithstanding anything else contained
herein, if adjustments in the number of shares of Common Stock
into which each share of Series H Preferred Stock is convertible
have caused the Conversion Price to be lower than the par value,
if any, of the Common Stock, upon any conversion of shares of
Series H Preferred Stock the Corporation shall, to the maximum
extent it is legally able to do so, issue to the converting holder
the shares of Common Stock into which the shares of Series H
Preferred Stock being converted are convertible, and, in addition,
the Corporation shall pay the converting holder an amount in cash
equal to the Current Market Price of the Common Stock multiplied
by the number of shares and fractions thereof of Common Stock
which the converting holder would have been entitled to receive
except for the limitation on lawful issuance described in this
paragraph.
Section 4. REPORTS AS TO ADJUSTMENTS.
Whenever the number of shares of Common Stock into which
each share of Series H Preferred Stock is convertible (or the
number of votes to which each share of Series H Preferred Stock is
entitled) is adjusted as provided in Section 8 hereof, the
Corporation shall promptly mail to the holders of record of the
outstanding shares of Series H Preferred Stock at their respective
addresses as the same shall appear in the Corporation's stock
records a notice stating that the number of shares of Common Stock
<PAGE>
into which the shares of Series H Preferred Stock are convertible
has been adjusted and setting forth the new number of shares of
Common Stock (or describing the new stock, securities, cash or
other property) into which each share of Series H Preferred Stock
is convertible (and the new number of votes to which each share of
Series H Preferred Stock is entitled), as a result of such
adjustment, a brief statement of the facts requiring such
adjustment and the computation thereof, and when such adjustment
became effective.
Section 5. CERTAIN CONENANTS.
(a) The Corporation shall not, without the prior
written consent of the holders of two-thirds of the outstanding
shares of Series H Preferred Stock, redeem or repurchase or
otherwise acquire for consideration, or permit any of its Subsid-
iaries to redeem, repurchase or otherwise acquire for consider-
ation, any shares of Common Stock at a price per share of Common
Stock less than the Conversion Price, unless the Board of Direc-
tors of the Corporation determines in good faith that the shares
of Common Stock remaining issued and outstanding upon consummation
of such redemption, repurchase or other acquisition will have an
Aggregate Market Value, immediately following consummation of such
transaction, greater than $1,500,000,000; PROVIDED, HOWEVER, that
nothing in this paragraph shall prohibit the Corporation or any of
its Subsidiaries from redeeming, repurchasing or otherwise
acquiring for consideration (i) up to 15,000,000 shares of Common
Stock (such number of shares to be subject to adjustment, using
the method described in Section 8(b)(i)(B) hereof, in the event
the Common Stock shall be subdivided or reclassified into a
greater number of shares or combined or reclassified into a
smaller number of shares) or (ii) any shares of Common Stock
offered for sale to the Corporation; and PROVIDED FURTHER that the
provisions of this paragraph (a) shall in no event apply at any
time after (A) the tender into a tender offer or exchange offer
that has not occasioned a Change of Control or Prospective Change
of Control of more than one-third (1/3) of the Series H Preferred
Stock or (B) the sale, during a tender offer or exchange offer
that has not occasioned a Change of Control or Prospective Change
of Control, of more than one-third (1/3) of the Series H Preferred
Stock or (C) the sale, during a tender offer or exchange offer
that has not occasioned a Change of Control or Prospective Change
of Control, of an amount of the Series H Preferred Stock that,
when added to that amount of the Series H Preferred Stock tendered
into such tender offer or exchange offer, is more than one-third
(1/3) of the Series H Preferred Stock (provided that the exception
<PAGE>
<PAGE>
set forth in this proviso shall not apply unless the Corporation
would have the right, pursuant to and in accordance with the terms
of that certain agreement referred to in the first proviso to this
paragraph (a), to purchase the shares of Series H Preferred Stock
tendered into such offer prior to their sale pursuant to such
offer or purchase the shares of Series H Preferred Stock sold
during the pendency of such offer prior to their sale).
(b) INTENTIONALLY OMITTED
(c) The Corporation shall, within three (3)
Business Days following public announcement of a tender or
exchange offer by any Person for securities representing fifty
percent (50%) or more of the combined voting power of the then
outstanding Voting Stock of the Corporation, which tender or
exchange offer was not approved by the Board of Directors of the
Corporation in advance of such public announcement, advise the
holders of shares of Series H Preferred Stock as to whether or not
the Corporation has sufficient capital and surplus (as determined
in accordance with the terms of the General Corporation Law of the
State of Delaware) to permit the Corporation to redeem the issued
and outstanding shares of Series H Preferred Stock in accordance
with the terms of paragraphs (d) and (e) of Section 5. Such
notice shall be given by mail (and, if the outstanding shares of
Series H Preferred Stock are owned by one corporation, or by one
group of corporations under common corporate control, by telex or
telecopy) to each holder of Series H Preferred Stock, at such
holder's address as it appears on the transfer books of the
Corporation, and, as soon as practical, if the Series H Preferred
Stock is listed on any national securities exchange or traded in
the over-the-counter market, a similar notice shall be given by
publication in a newspaper of general circulation in the Borough
of Manhattan.
(d) Any holder of Series H Preferred Stock may
proceed to protect and enforce its rights and the rights of such
holders by any available remedy by proceeding at law or in equity
to protect and enforce any such rights, whether for the specific
enforcement of any provision of this Certificate of Designation or
in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
Section 6. DEFINITIONS.
For the purposes of the Certificate of Designation of
Series H Senior Cumulative Convertible Preferred Stock which
embodies this resolution:
<PAGE>
"Accrued Dividends" to a particular date (the "Ap-
plicable Date") means (i) all unpaid dividends payable pursuant to
paragraph (a) of Section 2, whether or not declared, accrued to
the Applicable Date, plus (ii) all dividends or distributions
payable pursuant to paragraph (c) of Section 2 for which the
Triggering Distribution was declared, ordered, paid or made on or
prior to the Applicable Date.
"Aggregate Market Value" of the issued and outstanding
shares of Common Stock on any date shall be determined by multi-
plying the Closing Price on such date by the number of shares of
Common Stock that are issued and outstanding on such date.
"Average Market Price" per share of Common Stock on any
date shall be deemed to be the weighted average of the Closing
Prices per share of Common Stock on the ten (10) Trading Days
immediately preceding such date, determined by (i) multiplying
each Closing Price during such ten (10) day period by the number
of shares of Common Stock traded that day, (ii) adding the product
of the foregoing multiplications, and (iii) dividing the sum by
the total number of shares of Common Stock traded during that ten
(10) day period.
"Business Day" means any day other than a Saturday,
Sunday, or a day an which banking institutions in the State of New
York are authorized or obligated by law or executive order to
close.
"Change in Control" shall mean any of the following:
(a) the acquisition by any Person, other than
the Corporation, or any of its Subsidiaries, any employee benefit
plan or related trust of the Corporation or any of its Subsidiar-
ies, or Berkshire Hathaway Inc. or any of its Subsidiaries or
affiliates (as defined in Rule 12b-2 under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") (an "Acquiring
Person"), of beneficial ownership (within the meaning of Rule 13d-
3 promulgated under the Exchange Act) of fifty percent (50%) or
more of the combined voting power of the then outstanding Voting
Stock of the Corporation entitled to vote generally in the
election of directors; or
(b) the public announcement of a tender or
exchange offer by any Acquiring Person for fifty percent (50%) or
more of the outstanding voting securities of the Corporation,
<PAGE>
which was not approved by the Board of Directors in advance of
such public announcement, PROVIDED, HOWEVER, that such announce-
ment shall not constitute a Change in Control as long as (i) the
Board of Directors of the Corporation opposes such offer in its
Schedule 14D-9 statements and (ii) the Corporation has sufficient
capital and surplus (as determined in accordance with the terms of
the General Corporation Law of the State of Delaware) to permit
the Corporation to redeem the issued and outstanding shares of
Series H Preferred Stock in accordance with the terms of paragraph
(d) of Section 5. A Change in Control shall be deemed to have
occurred at any time a tender or exchange offer, not approved by
the Board of Directors of the Corporation in advance of its public
announcement, for fifty percent (50%) or more of the outstanding
voting securities of the Corporation is pending, if (i) the Board
of Directors of the Corporation in its Schedule 14D-9 statements
(A) approves or (B) fails to oppose, such tender or exchange
offer, or (ii) the Corporation does not possess sufficient capital
and surplus (as determined in accordance with the terms of the
Delaware General Corporation Law) to permit the Corporation to
redeem the issued and outstanding shares of Series H Preferred
Stock in accordance with the terms of paragraph (d) of Section 5,
or (iii) either the chief executive officer or a majority of the
Board of Directors gives notice to the holders of Series H
Preferred Stock that consummation of such tender or exchange offer
is likely; or
(c) individuals who, as of August 15, 1997,
constitute the Board of Directors of the Corporation (the "Incum-
bent Board") cease for any reason to constitute at least a
majority of such Board; provided that any individual becoming a
director subsequent to August 15, 1997, whose election, or nomina-
tion for election by the Corporation's stockholders, was approved
by a vote of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such individual
were a member of the Incumbent Board, but excluding, as a member
of the Incumbent Board, any such individual whose initial assump-
tion of office is in connection with an actual or threatened
election contest relating to the election of the directors of the
Corporation (as such terms are used in Rule 14a-11 of Regulation
14A promulgated under the Exchange Act) and further excluding any
person who is an affiliate or associate (as those terms are
defined in the General Rules and Regulations under the Exchange
Act) of an Acquiring Person having or proposing to acquire
beneficial ownership of 10% or more of the continued voting power
of the then outstanding voting securities of the Corporation
entitled to vote generally in the election of directors; or
<PAGE>
(d) the sale or other disposition of all or
substantially all the assets of the Corporation in one transaction
or series of related transactions.
"Closing Price" per share of Common Stock on any date
shall be the last sale price, regular way, or, in case no such
sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the
principal consolidated transaction reporting system with respect
to securities listed or admitted to trading on the New York Stock
Exchange or, if the Common Stock is not listed or admitted to
trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with respect
to securities listed on the principal national securities exchange
on which the Common Stock is listed or admitted to trading or, if
the Common Stock is not listed or admitted to trading on any
national securities exchange, the last quoted sale price or, if
not so quoted, the average of the high bid and low asked prices in
the over-the-counter market, as reported by the National As-
sociation of Securities Dealers, Inc. Automated Quotations System
("NASDAQ") or such other system then in use, or, if on any such
date the Common Stock is not quoted by any such organization, the
average of the Closing bid and asked prices as furnished by a
professional market maker making a market in the Common Stock
selected by the Board of Directors. If the Common Stock is not
publicly held or so listed or publicly traded, "Closing Price"
shall mean the Fair Market Value per share as determined in good
faith by the Board of Directors of the Corporation.
"Conversion Price" shall be an amount equal to $1,000
divided by the number of shares of Common Stock into which one
share of Series H Preferred Stock is convertible at such time (or
would be convertible if the Series H Preferred Stock were then
convertible).
"Current Market Price" per share of Common Stock on
any date shall be deemed to be the Closing Price per share of
Common Stock on the Trading Day immediately prior to such date.
"Event Price" shall mean any of the following, as
applicable:
(a) the weighted average price per share of
Common Stock paid by any Person (or affiliate or associate (as
such terms are defined in Rule 12b-2 under the Exchange Act) of
such Person) whose acquisition of shares of stock of the Corpora-
tion triggered a Change in Control during the sixty (60) day
<PAGE>
period preceding the Change in Control, in the event of a Change
in Control described in paragraph (a) of the definition of Change
in Control (unless such Change in Control was occasioned by the
purchase of shares of the Corporation's Voting Stock in a tender
offer or exchange offer, in which case the Event Price shall be
determined by reference to subparagraph (b) below); or
(b) the highest price (including any brokerage
commissions, transfer taxes and soliciting dealers' fees) paid,
offered to be paid or agreed to be paid by any Person (or affili-
ate or associate (as such terms are defined in Rule 12b-2 under
the Exchange Act) of such Person) for a share of Common Stock in a
tender or exchange offer in the event of (i) a Change in Control
described in paragraph (a) of the definition of Change in Control
occasioned by the purchase of shares of the Corporation's Voting
Stock in a tender offer or exchange offer or (ii) a Change in
Control described in paragraph (b) of the definition of Change in
Control. The fair market value of any non-cash consideration
paid, offered to be paid or agreed to be paid by such Person for
such shares shall be determined in good faith by the Board of
Directors of the Corporation; PROVIDED, HOWEVER, that the fair
market value of any such non-cash consideration shall not be
deemed to be less than the value assigned to such consideration by
any investment banking firm retained to advise the Corporation,
the Board of Directors, or any committee of its Board of Directors
prior to the consummation of the Change in Control; or
(c) the Average Market Price per share of
Common Stock, in the event of a Change in Control described in
paragraphs (c) or (d) of the definition of Change in Control,
computed as of the date of such Change in Control.
"Fair Market Value" means an amount determined in good
faith by the Board of Directors of the Corporation in reliance
upon an opinion of a nationally recognized investment banking firm
and certified in a resolution sent to all holders of shares of
Series H Preferred Stock.
"Junior Stock" means any stock of the Corporation
ranking junior to the Series H Preferred Stock with respect to the
payment of dividends and the distribution of assets, whether upon
liquidation or otherwise.
"Merger Event" shall mean the approval by the stock-
holders of the Corporation of a reorganization, merger or consol-
idation, in each case, with respect to which all or substantially
all the individuals and entities who were the respective benefi-
<PAGE>
cial owners of the voting securities of the Corporation immedi-
ately prior to such reorganization, merger or consolidation do
not, following such reorganization, merger or consolidation,
beneficially own, directly or indirectly, more than fifty percent
(50%) of the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors
of the corporation resulting from such reorganization, merger or
consolidation.
"Person" shall mean any person or entity of any nature
whatsoever, specifically including an individual, a firm, a
company, a corporation, a partnership, a trust or other entity. A
Person, together with such Person's Affiliates and Associates (as
these terms are defined in Rule 12b-2 under the Exchange Act), and
any Persons acting as a partnership, limited partnership, joint
venture, association, syndicate or other group (whether or not
formally organized), or otherwise acting jointly or in concert or
in a coordinated or consciously parallel manner (whether or not
pursuant to any express agreement), for the purpose of acquiring,
holding, voting or disposing of securities of the Corporation with
such Person, shall be deemed a single "Person".
"Prospective Change in Control" shall mean the public
announcement of a tender or exchange offer by any person for fifty
percent (50%) or more of the Combined voting power of the then
outstanding Voting Stock of the Corporation, which tender or
exchange offer was approved by the Board of Directors of the
Corporation in advance of such public announcement.
"Redemption Threshold" shall be an amount equal to the
Conversion Price at such time multiplied by 125%.
"Rights" shall mean any rights to purchase Junior Stock
issued pursuant to any Rights Agreement.
"Rights Agreement" shall mean any rights agreement that
may hereafter be adopted by the Corporation similar to the Rights
Agreement dated as of June 29, 1989 between the Corporation and
The Chase Manhattan Bank, N.A., as amended and restated (the "1989
Rights Agreement"), as it may be amended from time to time consis-
tent with the limitations on amendment of the 1989 Rights
Agreement set forth in Section (4) of that certain letter agree-
ment dated August 7, 1989 pursuant to which the Corporation's
Series A Preferred Stock was initially issued.
"Set Apart for Payment" shall mean the Corporation
shall have deposited with a bank or trust company doing business
<PAGE>
in the Borough of Manhattan, the City of New York, and having a
capital and surplus of at least $50,000,000, in trust for the
exclusive benefit of the holders of shares of Series H Preferred
Stock, funds sufficient to satisfy the Corporation's payment
obligation.
"Subsidiary" of any Person means any corporation or
other entity of which a majority of the voting power of the voting
equity securities or equity interest is owned, directly or
indirectly, by such Person.
"Trading Day" means a day on which the principal
national securities exchange on which the Common Stock is listed
or admitted to trading is open for the transaction of business or,
if the Common Stock is not listed or admitted to trading on any
national securities exchange, any day other than a Saturday,
Sunday, or a day on which banking institutions in the State of New
York are authorized or obligated by law or executive order to
close.
"Voting Stock" means the outstanding shares of capital
stock of the Corporation entitled to vote generally in the
election of directors.
Section 1. RANK.
The Series H Preferred Stock shall rank, with respect to
voting powers, preferences and relative, participating, optional
and other special rights of the shares of such series and the
qualifications, limitations and restrictions thereof, including,
without limitation, with respect to the payment of dividends and
the distribution of assets, whether upon liquidation or otherwise,
(i) equally with respect to all shares of Senior Preferred Stock
or Preferred Stock described in the proviso to subparagraph
(b)(ii) of Section 3, (ii) prior to all shares of the $437.50
Series B Cumulative Convertible Preferred Stock, without par
value, of the Corporation and to all shares of the Common Stock,
and (iii) prior to all shares of any other class or series of
Senior Preferred Stock or Preferred Stock of the Corporation,
unless such other class or series by its terms ranks equally with
or senior to the Series H Preferred Stock.
<PAGE>
IN WITNESS WHEREOF, the Corporation has caused this
Corrected Certificate of Designation of Series H Senior Cumulative
Convertible Preferred Stock to be duly executed in its name this
22nd day of August, 1997.
US AIRWAYS GROUP, INC.
By: /s/ John W. Harper
------------------------
John W. Harper
Senior Vice President
EXHIBIT 10.1
***Pursuant to 17 CFR 240.24b-2, confidential information has been omitted and
has been filed separately with the Securities and Exchange Commission pursuant
to a Confidential Treatment Application filed with the Commission.
AIRBUS A319/A320/A321 PURCHASE AGREEMENT
Dated as of October 31, 1997
between
AVSA, S.A.R.L.,
Seller
and
US Airways Group, Inc.,
Buyer
<PAGE>
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
19 ASSIGNMENT
20 DATA RETRIEVAL
21 TERMINATION FOR CERTAIN EVENTS
22 MISCELLANEOUS PROVISIONS
<PAGE>
EXHIBIT "A-1" A319 AIRCRAFT SPECIFICATION
EXHIBIT "A-2" A320 AIRCRAFT SPECIFICATION
EXHIBIT "A-3" A321 AIRCRAFT SPECIFICATION
EXHIBIT "B" CHANGE ORDERS TO STANDARD SPECIFICATIONS
(SCNs)
EXHIBIT "C" SCN FORM
EXHIBIT "D" SELLER SERVICE LIFE POLICY
EXHIBIT "E" CERTIFICATE OF ACCEPTANCE
EXHIBIT "F" TECHNICAL PUBLICATIONS
EXHIBIT "G" AIRFRAME PRICE REVISION FORMULA
EXHIBIT "H-1" CFM INTERNATIONAL PRICE REVISION FORMULA
FOR A319 AIRCRAFT
EXHIBIT "H-2" CFM INTERNATIONAL PRICE REVISION FORMULA
FOR A320 AIRCRAFT
EXHIBIT "H-3" CFM INTERNATIONAL PRICE REVISION FORMULA
FOR A321 AIRCRAFT
<PAGE>
LETTER AGREEMENT NO. 1 SPARE PARTS PROCUREMENT
LETTER AGREEMENT NO. 2 DELIVERIES
LETTER AGREEMENT NO. 3 ADDITIONAL AIRCRAFT
LETTER AGREEMENT NO. 4 CONVERSION RIGHTS
LETTER AGREEMENT NO. 5 PURCHASE INCENTIVES
LETTER AGREEMENT NO. 6 SPECIFICATION MATTERS
LETTER AGREEMENT NO. 7 PRODUCT SUPPORT
LETTER AGREEMENT NO. 8 A319 PERFORMANCE GUARANTEES -
CFM 56-5B-6
LETTER AGREEMENT NO. 8B A320 PERFORMANCE GUARANTEES -
CFM 56-5B-4
LETTER AGREEMENT NO. 8C A321 PERFORMANCE GUARANTEES -
CFM 56-5B-3
LETTER AGREEMENT NO. 9 ***
LETTER AGREEMENT NO. 10 ***
LETTER AGREEMENT NO. 11 PREDELIVERY PAYMENTS
LETTER AGREEMENT NO. 12 ***
LETTER AGREEMENT NO. 13 TECHNICAL DISPATCH RELIABILITY GUARANTEE
<PAGE>
P U R C H A S E A G R E E M E N T
This agreement is made this 31st day of October 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
US Airways Group, Inc. a corporation organized and existing under the
laws of the State of Delaware, United States of America, having its
executive offices located at
2345 Crystal Drive
Arlington, VA 22227
(hereinafter referred to as the "Buyer")
WHEREAS,
a) the Buyer wishes to purchase and the Seller is willing to sell up to four
hundred (400) Airbus Industrie aircraft, upon the terms and conditions
herein provided; and
b) the Seller is a sales subsidiary of Airbus Industrie, G.I.E., and will
purchase the A319, A320 and A321 model aircraft from Airbus Industrie,
G.I.E., for resale to the Buyer.
NOW THEREFORE IT IS AGREED AS FOLLOWS:
<PAGE>
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:
A319 Aircraft - any or all of the Firm A319 Aircraft, Reconfirmable
-------------
A319 Aircraft and Additional Aircraft that the Buyer selects as A319-
100 aircraft and Aircraft that the Buyer converts into A319-100
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 Propulsion
Systems installed thereon upon delivery.
A319 Airframe - any A319 Aircraft, excluding the Propulsion Systems
-------------
therefor.
A320 Aircraft - any or all of the Firm A320 Aircraft, Reconfirmable
-------------
A320 Aircraft and Additional Aircraft that the Buyer selects as A320-
200 aircraft and Aircraft that the Buyer converts into A320-200
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 Propulsion
Systems installed thereon upon delivery.
A320 Airframe - any A320 Aircraft, excluding the Propulsion Systems
-------------
therefor.
A321 Aircraft - any or all of the Additional Aircraft that the Buyer
-------------
selects as A321-200 aircraft and Aircraft that the Buyer converts into
A321-200 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
Propulsion Systems installed thereon upon delivery.
A321 Airframe - any A321 Aircraft, excluding the Propulsion Systems
-------------
therefor.
Additional Aircraft - up to one hundred sixty (160) A319-100, A320-200
-------------------
and/or A321-200 model aircraft other than Firm Aircraft and
Reconfirmable Aircraft that may 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 Propulsion Systems installed thereon upon delivery.
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 any of the
Associated Contractors.
2
<PAGE>
Agreement - this Airbus A319/A320/A321 Purchase Agreement, including
---------
all exhibits, appendices and letter agreements attached or otherwise
incorporated herein and all SCNs, as the same may be amended or
modified (whether by formal amendment, letter, correspondence or
otherwise in writing) from time to time, and in effect from time to
time.
Aircraft - any or all of the A319 Aircraft, A320 Aircraft and A321
--------
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 Propulsion
Systems installed thereon upon delivery.
Airframe - any Aircraft, excluding the Propulsion Systems therefor.
--------
Airframe Price Revision Formula - the formula set forth in Exhibit "G"
-------------------------------
of this Agreement.
ASC - Airbus Service Company, Inc., a corporation organized and
---
existing under the laws of the State 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
3
<PAGE>
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
ATA Specification 100 - the specification issued by the Air Transport
---------------------
Association of America relating to manufacturers' technical data.
ATA Specification 101 - the specification issued by the Air Transport
---------------------
Association of America relating to ground equipment technical data.
ATA Specification 102 - the specification issued by the Air Transport
---------------------
Association of America relating to software programs.
ATA Specification 200 - the specification issued by the Air Transport
---------------------
Association of America relating to integrated data processing.
ATA Specification 300 - the specification issued by the Air Transport
---------------------
Association of America relating to the packaging of spare parts
shipments.
ATA Specification 2000 - the specification issued by the Air
----------------------
Transport Association of America relating to an industry-wide
communication system linking suppliers and users for the purposes of
spares provisioning, purchasing, order administration, invoicing and
information or data exchange.
ATA Specification 2100 - the specification issued by the Air
----------------------
Transport Association of America relating to the standards for the
presentation of technical information prepared as digital media
(magnetic tape or CD ROM).
Base Price - for any Aircraft, Airframe or Propulsion Systems, as
----------
defined in Subclause 4.1 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, as defined in the Specification.
***
Commercial Constraints - means delivery positions that are not
----------------------
available
4
<PAGE>
solely because they are under offer to another customer or because
they would require unreasonably expensive modifications to meet the
Specification.
Courseware - computer-based-training programs developed and owned or
----------
licensed by the Seller in conjunction with the Buyer's training
programs.
Customer Originated Changes - as defined in Subclause 14.5.3 of this
---------------------------
Agreement.
Deposit - as defined in Subclause 6.2.4 of this Agreement.
-------
Development Changes - as defined in Subclause 3.2 of this Agreement.
-------------------
DGAC - the Direction Generale de l'Aviation Civile of France, or any
----
successor agency thereto.
Excusable Delay - as defined in Subclause 10.1 of this Agreement.
---------------
FAA - the U.S. Federal Aviation Administration, or any successor
---
agency thereto.
Failure - as defined in Subclause 12.2 of this Agreement.
-------
Final Contract Price - as defined in Subclause 4.2 of this Agreement.
--------------------
Firm A319 Aircraft - any or all of the one hundred nine (109) firm
------------------
A319-100 aircraft for which the delivery schedule is set forth in
Subclause 9.1.1 hereof 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 Propulsion Systems installed thereon upon delivery.
Firm A320 Aircraft - any or all of the fifteen (15) firm A320-200
------------------
aircraft for which the delivery schedule is set forth in Subclause
9.1.1 hereof 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
Propulsion Systems installed thereon upon delivery.
Firm Aircraft - any or all of the Firm A319 Aircraft and Firm A320
-------------
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 Propulsion
Systems installed thereon upon delivery.
5
<PAGE>
Industrial Constraints - means delivery positions that are not
----------------------
physically available, because production capacity limits have been
reached.
Inexcusable Delay - as defined in Subclause 11.1 of this Agreement.
-----------------
In-house Warranty - as referred to in Subclause 12.1.7 of this
-----------------
Agreement.
In-house Warranty Labor Rate - as defined in Subclause 12.1.7(v) of
----------------------------
this Agreement.
Interface Problem - as defined in Subclause 12.4.1 of this Agreement.
-----------------
Item - as defined in Subclause 12.2 of this Agreement.
----
LBA - Luftfahrt-Bundesamt of Germany or any successor agency thereto.
---
LIBOR - for each stated interest period, the rate for deposits in US
-----
dollars being quoted to prime banks in the London Interbank Market for
such an interest period, at 11:00 a.m., London time, on the day that
is two (2) days (other than a Saturday, Sunday or a day that is a
legal holiday or a day on which banking institutions are authorized to
close in the City of New York, New York, London, England, or Paris,
France) before the first day of an interest period. Such rate may be
displayed on the Reuters Screen LIBO Page, the Bloomberg LIBOR screen,
or in the Wall Street Journal or The Financial Times. The Buyer and
------------------- -------------------
Seller will consult these sources and agree on the rate. In the event
that agreement cannot be reached, if at least two (2) such offered
rates appear on the Reuters Screen LIBO Page, the rate for that
interest period will be the arithmetic mean of such offered rates
rounded to the nearest basis point (0.5 rounds to 1), otherwise the
rate for that interest period will be "LIBOR" as quoted by National
Westminster Bank, plc. "Reuters Screen LIBO Page" means the display
designated as page "LIBO" on the Reuters Monitor Money Rates Service
(or any successor to such page or service).
Manufacturer - Airbus Industrie, a "Groupement d'Interet Economique"
------------
established under "Ordonnance" No. 67-821 dated September 23, 1967, of
the Republic of France.
Material - as defined in Subclause 1.1 of Letter Agreement No. 1 to
--------
the Agreement.
Material Breach - as defined in Subclause 21.1 of this Agreement.
---------------
Predelivery Payment - any payment made against the Final Contract
-------------------
Price of an Aircraft, the expected schedule for which is set forth in
Subclause 6.2.2 of this Agreement.
6
<PAGE>
Predelivery Payment Reference Price - as defined in Subclause 6.2.3 of
-----------------------------------
this Agreement.
Product Support Agreements - as referred to in Subclause 17.1.1 of
--------------------------
this Agreement.
Propulsion Systems - the two (2) powerplants manufactured by CFM
------------------
International to be installed, as applicable, on an A319 Aircraft,
A320 Aircraft or A321 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 CFM
International, which do not include the nacelles or thrust reversers.
Qualifying Affiliate - as defined in Subclause 19.5 of this
--------------------
Agreement.
Reconfirmable A319 Aircraft - any or all of the reconfirmable A319-100
---------------------------
aircraft that may 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
Propulsion Systems installed thereon upon delivery.
Reconfirmable A320 Aircraft - any or all of the reconfirmable A320-200
---------------------------
aircraft that may 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
Propulsion Systems installed thereon upon delivery.
Reconfirmable A321 Aircraft - any or all of the reconfirmable A321-200
---------------------------
aircraft that may 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
Propulsion Systems installed thereon upon delivery.
Reconfirmable Aircraft - any or all of the Reconfirmable A319
----------------------
Aircraft, Reconfirmable A320 Aircraft and Reconfirmable A321 Aircraft
that may 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 Propulsion
Systems installed thereon upon delivery.
RFC - as defined in Subclause 3.3 of this Agreement.
---
SCN - as defined in Subclause 3.1 of this Agreement.
---
7
<PAGE>
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 of America.
Service Life Policy - as referred to in Subclause 12.2 of this
-------------------
Agreement.
Specifications - as defined in Subclause 2.2 of this Agreement.
--------------
Standard Specifications - as defined in Subclause 2.2 of this
-----------------------
Agreement.
Technical Publications - as defined in Subclause 14.1 of this
----------------------
Agreement.
Training - as defined in Subclause 16.1 of this Agreement.
--------
Training Conference - as defined in Subclause 16.2.1 of this
-------------------
Agreement.
Vendor - each manufacturer of Vendor Parts.
------
Vendor Component - as defined in Subclause 12.4.3 of this Agreement.
----------------
Vendor Parts - any equipment, component, accessory, or part installed
------------
in or intended to be installed in an Aircraft, other than Warranted
Parts, Propulsion Systems and Buyer Furnished Equipment.
Warranted Part - as defined in Subclause 12.1.1 of this Agreement.
--------------
Warranty Claim - as defined in Subclause 12.1.6(iv) 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 legal
holiday in the jurisdiction in which such action is required to be
taken, provided that for purposes of determining when any notice or
--------
election, any payment or any delivery of any Aircraft is required to
be made, "Working Days" will mean any day other than a Saturday,
Sunday or other day designated as a legal holiday or on which banks
are permitted to be closed in (a) Toulouse, France, with respect to
A320 Aircraft, (b) Hamburg, Germany, with respect to A319 Aircraft and
A321 Aircraft, (c) New York, New York or (d) any other location where
applicable United States federal offices (such as those of the FAA)
are located.
The terms "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement, and not a particular Clause
thereof.
The term "including" as used in this Agreement means "including,
without limitation," unless otherwise specified or unless the context
otherwise
8
<PAGE>
requires.
Technical and trade items not otherwise defined herein will have the
meanings assigned to them as generally accepted in the aircraft
manufacturing industry.
9
<PAGE>
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
-----------------------
Each Aircraft will be manufactured, and when delivered will be in
accordance with the Specification for such Aircraft:
(i) in respect of the A319 Aircraft, Standard Specification Document
No. J.000.01000, Issue 3, Temporary Revision 1, dated August 25,
1995 (the "A319 Standard Specification"),
(ii) in respect of A320 Aircraft, Standard Specification Document No.
D.000.02000, Issue 4, dated March 30, 1995, (the "A320 Standard
Specification"), and
(ii) in respect of A321 Aircraft, Standard Specification Document No.
E.000.02000, Issue 1, dated June 30, 1995 (the "A321 Standard
Specification").
Copies of the A319 Standard Specification, A320 Standard Specification
and A321 Standard Specification are annexed hereto as, respectively,
Exhibit "A-1," Exhibit "A-2" and Exhibit "A-3" to this Agreement
(collectively, the "Standard Specifications"). The Standard
Specifications, as amended by the change orders set forth in Exhibit
"B" hereto are hereinafter referred to as the "Specifications." The
Specifications may be further modified from time to time pursuant to
the provisions of Clause 3 below.
2.3 Certification
-------------
Prior to the delivery of the first A319 Aircraft, the first A320
Aircraft and the first A321 Aircraft, the Seller will obtain or cause
to be obtained a US FAA Type Certificate (transport category) for the
Aircraft pursuant to Part 21 and in compliance with the applicable
provisions of Part 25 of the US Federal Aviation Regulations. At or
before such time, the Seller will provide the Buyer with a copy of
each such Type Certificate.
Each Aircraft will be delivered to the Buyer with (i) the Certificate
of Airworthiness for Export issued by the LBA for A319 Aircraft and
A321
10
<PAGE>
Aircraft and DGAC for A320 Aircraft, ***
The Buyer will remain responsible for the United States
registration of the Aircraft. The Seller will not be liable for any
failure to obtain the above certificates if the Buyer fails to
cooperate. The Seller will have no obligation, 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, ***.
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.
11
<PAGE>
3 - CHANGES
-------
3.1 Specification Change Notices
----------------------------
The Specifications 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 an "SCN" and being
substantially in the form of Exhibit "C" hereto). Each SCN will set
forth in detail the particular changes to be made in the
Specifications, and the effect, if any, of such changes on design,
performance, weight, balance, time of delivery, Buyer Furnished
Equipment and price (in base year dollars and, for information
purposes only, in then current year dollars) 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. All SCNs will be signed on
behalf of the Buyer by an officer in its finance department and an
officer in flight operations or maintenance, or alternatively may be
signed by the Buyer's chief executive officer or president.
3.2 Development Changes
-------------------
*** the Specifications may also be revised by the Seller without an
SCN or the Buyer's consent solely to in corporate Manufacturer-decided
changes that are deemed necessary or useful to correct defects,
improve the Aircraft or its process of manufacture, prevent delay, or
ensure compliance with this Agreement and that do not increase the
price or adversely affect the delivery, overall dimensions, weight,
operational or maintenance requirements or performance of the Aircraft
or adversely (i) change the interchangeability or replaceability
requirements of the Specifications with respect to parts or (ii) ***
(hereinafter called "Development Changes"). ***
3.3 Requests and Approvals
----------------------
In the event that the Buyer files a Request for Change ("RFC") with
the Seller and the RFC does not subsequently become an SCN for any
reason, such RFC will be cancelled without charge to the Buyer. Upon
receipt of any request for a proposed change, the Seller will consider
such request in good faith and will respond within ten (10) Working
Days with (i) if possible, all
12
<PAGE>
appropriate information, including, a written estimated range of the
cost thereof, the impact on the delivery dates of the applicable
Aircraft and any certification requirements, or (ii) if (i) is not
possible, with a date when the Seller will provide the Buyer with the
information in (i). In the event that the Buyer requests the Seller in
writing to incorporate a proposed change (excluding Development
Changes) in an Aircraft and the Seller agrees to such request and
incorporates such change, but the change is not subsequently made the
subject of an SCN for any reason (other than the Seller's unreasonable
refusal to sign the SCN or otherwise acting in bad faith), the Buyer
will pay to the Seller the actual direct cost of design and other work
resulting from such request and incurred by the Seller ***.
In the event that the Buyer requests the Seller in writing
to proceed with a proposed change before any requisite approval of the
LBA, for A319 Aircraft and A321 Aircraft, DGAC, for A320 Aircraft, and
FAA has been obtained and subsequently such LBA, DGAC or FAA approval
is not obtained, any SCN which will have been executed in connection
with such proposed change will be deemed cancelled. ***
3.4 Specification Changes Before Delivery
-------------------------------------
If, pursuant to the promulgation, adoption, issuance, change or
interpretation of any applicable law or regulation, any change in the
Specifications has to be made before delivery of any Aircraft to
enable ***.
For each such change, the parties will sign an SCN
specifying the effect, if any, of such change on design, performance,
weight, balance, time of delivery, Buyer Furnished Equipment 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 Subclause 9.1 will
be extended to the extent required by reason of such change, ***.
The Seller will use all reasonable efforts to ensure that each
Aircraft that is the subject of such postponement is "ready for
delivery" without discrimination against the Aircraft.
13
<PAGE>
***
The cost of the changes applicable to Propulsion Systems, will be
borne by the Buyer or the manufacturer thereof in accordance with such
arrangements as may be made separately between the Buyer and the
manufacturer of the Propulsion Systems.
3.5 Specification Changes After Delivery
------------------------------------
Subclause 3.4 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. Any
such changes or modifications made to an Aircraft after its delivery
to the Buyer will be at the Buyer's expense, except as otherwise
agreed between the Buyer and the Seller.
3.6 Specification Evolution
-----------------------
The Seller will keep the Buyer advised of any evolution in the design
of the A320 family of aircraft and of any new relevant option that
becomes available with respect to the Aircraft.
14
<PAGE>
4 - PRICE
-----
4.1 Base Price of the Aircraft
--------------------------
The "Base Price" of each Aircraft is the sum of:
(i) the Base Price of the Airframe, and
(ii) the Base Price of the Propulsion Systems.
4.1.1 Base Price of the Airframe
--------------------------
4.1.1.1 A319 Airframe
-------------
The Base Price of the A319 Airframe will be the sum of the Base Prices
set forth below in (i) and (ii):
(i) the Base Price of the Standard A319 Airframe, as defined in the
A319 Standard Specification set forth in Exhibit "A-1" hereto
(excluding Buyer Furnished Equipment, Propulsion Systems and
SCNs), at delivery conditions prevailing in January 1996, which
is:
US $ ***
(US dollars--***), and
(ii) the Base Price of any and all SCNs mutually agreed upon prior to
the signature of this Agreement and set forth in Exhibit "B," at
delivery conditions prevailing in January 1996, which is:
US $ ***
(US dollars--***).
4.1.1.2 A320 Airframe
-------------
The Base Price of the A320 Airframe will be the sum of the Base Prices
set forth below in (i) and (ii):
(i) the Base Price of the Standard A320 Airframe, as defined in the
A320 Standard Specification set forth in Exhibit "A-2" hereto
(excluding Buyer Furnished Equipment, Propulsion Systems and
SCNs), at delivery conditions prevailing in January 1996, which
is:
15
<PAGE>
US $ ***
(US dollars--***), and
(ii) the Base Price of any and all SCNs mutually agreed upon prior to
the signature of this Agreement and set forth in Exhibit "B," at
delivery conditions prevailing in January 1996, which is:
US $ ***
(US dollars--***).
4.1.1.3 A321 Airframe
-------------
The Base Price of the A321 Airframe will be the sum of the Base Prices
set forth below in (i) and (ii):
(i) the Base Price of the Standard A321 Airframe, as defined in the
A321 Standard Specification set forth in Exhibit "A-3" hereto
(excluding Buyer Furnished Equipment, Propulsion Systems and
SCNs), at delivery conditions prevailing in January 1996, which
is:
US $ ***
(US dollars--***), and
(ii) the Base Price of any and all SCNs mutually agreed upon prior to
the signature of this Agreement and set forth in Exhibit "B," at
delivery conditions prevailing in January 1996, which is:
US $ ***
(US dollars--***).
4.1.1.4 The Base Price of the Airframe of each Aircraft will be revised
to the actual delivery date of such Aircraft in accordance with
the Airframe Price Revision Formula.
4.1.2 Base Price of the Propulsion Systems
------------------------------------
4.1.2.1 A319 Aircraft
-------------
16
<PAGE>
4.1.2.1.1 CFM International CFM 56-5B-6/P Propulsion Systems
--------------------------------------------------
The Base Price of a set of two (2) CFM 56-5B-6/P Propulsion Systems is
the sum of the Base Prices quoted below in (i) and (ii):
(i) Base Price of the CFM 56-5B-6/P Engines
---------------------------------------
The Base Price of a set of two (2) CFM 56-5B-6/P engines and
additional standard equipment, at delivery conditions prevailing
in January 1996, which is:
US $ ***
(US dollars--***).
Said Base Price has been calculated with reference to the
Reference Price indicated by CFM INTERNATIONAL of US $ *** as
defined by the Reference Composite Price Index of *** and in
accordance with economic conditions prevailing in ***
Said Reference Price is subject to adjustment to the date of
delivery of the Aircraft in accordance with the CFM
INTERNATIONAL Price Revision Formula set forth in Exhibit "H-1"
of this Agreement.
(ii) Base Price of Nacelles and Thrust Reversers
-------------------------------------------
The Base Price of a set of two (2) nacelles and two (2) thrust
reversers for the CFM 56-5B-6/P Propulsion Systems at delivery
conditions prevailing in January 1996, which is:
US $ ***
(US dollars--***).
Said Base Price is subject to adjustment to the date of delivery
of the Aircraft in accordance with the Airframe Price Revision
Formula.
4.1.2.2 A320 Aircraft
-------------
4.1.2.2.1 CFM International CFM 56-5B-4/P Propulsion Systems
--------------------------------------------------
The Base Price of a set of two (2) CFM 56-5B-4/P Propulsion Systems is
the sum of the Base Prices quoted below in (i) and (ii):
17
<PAGE>
(i) Base Price of the CFM 56-5B-4/P Engines
---------------------------------------
The Base Price of a set of two (2) CFM 56-5B-4/P engines and
additional standard equipment, at delivery conditions prevailing
in January 1996, which is:
US $ ***
(US dollars--***).
Said Base Price has been calculated with reference to the
Reference Price indicated by CFM INTERNATIONAL of US $ *** as
defined by the Reference Composite Price Index of *** and in
accordance with economic conditions prevailing in ***
Said Reference Price is subject to adjustment to the date of
delivery of the Aircraft in accordance with the CFM
INTERNATIONAL Price Revision Formula set forth in Exhibit "H-2"
of this Agreement.
(ii) Base Price of Nacelles and Thrust Reversers
-------------------------------------------
The Base Price of a set of two (2) nacelles and two (2) thrust
reversers for the CFM 56-5A-3/P Propulsion Systems at delivery
conditions prevailing in January 1996, which is:
US $ ***
(US dollars--***).
Said Base Price is subject to adjustment to the date of delivery
of the Aircraft in accordance with the Airframe Price Revision
Formula.
4.1.2.3 A321 Aircraft
-------------
4.1.2.3.1 CFM International CFM 56-5B-3/P Propulsion Systems
--------------------------------------------------
The Base Price of a set of two (2) CFM 56-5B-3/P Propulsion Systems is
the sum of the Base Prices quoted below in (i) and (ii):
18
<PAGE>
(i) Base Price of the CFM 56-5B-3/P Engines
---------------------------------------
The Base Price of a set of two (2) CFM 56-5B-3/P engines and
additional standard equipment, at delivery conditions prevailing
in January 1996, which is:
US $ ***
(US dollars--***).
Said Base Price has been calculated with reference to the
Reference Price indicated by CFM INTERNATIONAL of US$ *** as
defined by the Reference Composite Price Index of *** and in
accordance with economic conditions prevailing in ***
Said Reference Price is subject to adjustment to the date of
delivery of the Aircraft in accordance with the CFM
INTERNATIONAL Price Revision Formula set forth in Exhibit "H-3"
of this Agreement.
(ii) Base Price of Nacelles and Thrust Reversers
-------------------------------------------
The Base Price of a set of two (2) nacelles and two (2) thrust
reversers for the CFM 56-5B-3/P Propulsion Systems at delivery
conditions prevailing in January 1996, which is:
US $ ***
(US dollars--***).
Said Base Price is subject to adjustment to the date of delivery
of the Aircraft in accordance with the Airframe Price Revision
Formula.
4.2 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 5.1 of this Agreement;
(ii) the price (as of delivery conditions prevailing in January 1996)
of
19
<PAGE>
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 Subclause 5.1 of this Agreement;
(iii) the 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 5.2 of
this Agreement; and
(iv) any other adjustment 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 stating
that such adjustment is to be included in or taken into account
in the Final Contract Price of an Aircraft, such as the Seller's
purchase of Buyer Furnished Equipment from the Buyer.
4.3 Validity of Propulsion Systems Prices
-------------------------------------
It is understood that the prices cited above and the price revision
formulas referred to in Subclause 5.2 concerning the Propulsion
Systems and related equipment are based on information received from
the Propulsion Systems manufacturer and remain subject to any
modifications that might be jointly communicated by the Propulsion
Systems manufacturer and the Buyer to the Seller and the Manufacturer.
4.4 Taxes, Duties and Imposts
-------------------------
4.4.1 The Seller will bear and pay the amount of any and all taxes, duties,
imposts or similar charges of any nature whatsoever that are (i)
imposed upon the Buyer, or any assignee pursuant to an assignment as
set forth in Clause 19, (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, service, equipment or part delivered or furnished
hereunder, provided such taxes, duties, imposts or similar charges
have been levied, assessed, charged or collected in the Republic of
France under laws promulgated and enforceable in the Republic of
France, in respect of A320 Aircraft, and Germany under laws
promulgated and enforceable in Germany, in respect of A319 Aircraft
and A321 Aircraft.
20
<PAGE>
4.4.2 The Buyer will bear and pay the amount of any and all taxes, duties,
imposts or similar charges of any nature whatsoever imposed upon the
Seller (except for taxes based on or measured by the Seller's income),
imposed upon the Buyer with an obligation on the Seller to collect the
amount thereof for the Buyer, or imposed upon the Seller with an
obligation for the Buyer to withhold such amount from the Seller
(except for income taxes collected by withholding), which are levied,
assessed, charged or collected for or in connection with the sale,
delivery or use of (except any use prior to delivery to the Buyer), 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 any laws ***
4.4.3 If a claim is made against one party (the "Indemnitee") for any taxes,
duties, imposts or similar charges for which the other party (the
"Indemnitor") has agreed to be liable pursuant to the provisions of
this Agreement, the Indemnitee will promptly notify the Indemnitor.
In lieu of any direction or request by the Indemnitor received within
five (5) Working Days of the due date specified in said claim, the
Indemnitee may pay the amount of said tax, duty, impost or charge and
claim against the Indemnitor for reimbursement consistent with
Subclause 4.4. However, if requested by the Indemnitor in writing,
the Indemnitee will, at the Indemnitor's expense, take such action as
the Indemnitor may reasonably direct with respect to such asserted
liability and will not pay such taxes, duties, imposts or similar
charges except under protest, if protest is necessary. If payment is
made, the Indemnitee will, at the Indemnitor's expense, take such
action as the Indemnitor may reasonably direct to recover payment and
will, if requested, permit the Indemnitor in the Indemnitee's name to
file a claim or commence an action to recover such payment. If the
Indemnitee will receive a refund or credit for all or any part of such
taxes, duties, imposts or similar charges, then the Indemnitee will
promptly repay the Indemnitor the amount of any such refund or credits
which are attributable to the amount paid by the Indemnitor, including
any interest received thereon, but less any expenses incurred by the
Indemnitee in pursuing such refund or credit.
21
<PAGE>
5 - PRICE REVISION
--------------
5.1 Airframe Price Revision Formula
-------------------------------
Base Price of the Airframe of each Aircraft will be revised to the
actual delivery date of such Aircraft in accordance with the Airframe
Price Revision Formula, unless otherwise provided in this Agreement.
5.2 Propulsion Systems Price Revision Formula
-----------------------------------------
The Reference Price of the Propulsion Systems will be revised to the
actual delivery date of the Aircraft on which such Propulsion Systems
are installed in accordance with the revision formula set forth in, as
applicable, Exhibit "H-1," Exhibit "H-2" or Exhibit "H-3" hereto,
unless otherwise provided in this Agreement.
22
<PAGE>
6 - PAYMENT TERMS
-------------
6.1 Method and Place of Payment
---------------------------
6.1.1 The Buyer will pay all sums due hereunder in immediately available
funds in United States dollars by credit to the Seller's account at
Credit Lyonnais, New York Branch, or to such other account located in
the United States of America as the Seller will designate by notice to
the Buyer.
6.1.2 The Seller will pay all sums due hereunder to the Buyer in immediately
available funds in United States dollars by credit to the Buyer's
account, account no. 2147591, at PNC Bank in Pittsburgh, Pennsylvania,
or to such other account located in the United States of America as
the Buyer designates by notice to the Seller.
6.2 Predelivery Payments
--------------------
6.2.1 ***
6.2.2 Predelivery Payments will be paid according to the following
schedules.
6.2.2.1 ***
23
<PAGE>
6.2.2.2 ***
6.2.3 The Predelivery Payment Reference Price is defined as:
A = Pb (1 + 0.05N)
where
A = the Predelivery Payment Reference Price for Aircraft to be
delivered in calendar year T.
Pb = the Base Price of the Aircraft as defined in Subclause 4.1
above.
N = (T -1996).
T = the year of delivery of the relevant Aircraft.
6.2.4 The Seller acknowledges that it has already received from the Buyer
the sum of US$*** (US dollars--***),
which represents a deposit of US$ *** (US dollars--***)
for the first one hundred twenty (120) Firm Aircraft (each a
"Deposit"). Each US$ *** (US dollars--***)
deposit paid with respect to each particular Firm Aircraft will be
credited without interest against the first Predelivery Payment for
such Firm Aircraft due upon execution of this Agreement.
6.3 Payment of Final Contract Price
-------------------------------
Concurrently with the transfer of title to each Aircraft, the Buyer
will pay to the Seller the Final Contract Price thereof, less the
total amount of the Predelivery Payments theretofore received by the
Seller for such Aircraft under Subclause 6.2 above, *** . The Seller's
receipt of the full amount of all Predelivery Payments and of the
Final Contract Price *** will be a condition precedent to the Seller's
obligation to deliver such Aircraft.
24
<PAGE>
6.4 Payment of Other Amounts
------------------------
Unless otherwise expressly provided for herein, any payments due
hereunder or in respect of an Aircraft in addition to those referred
to in Subclauses 6.2.2 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.
6.5 Overdue Payments
----------------
If any payment due under this Agreement is not received on the date or
dates as agreed upon between the Buyer and the Seller, the person
entitled to receive payments (the "Recipient") will have the right to
claim from the person owing such payment (the "Payor") and the Payor
will promptly pay to the Recipient *** interest at a rate per annum
equal to *** 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 Recipient. For purposes of the
foregoing sentence, any period of less than one month will be prorated
to include the period during which the payment is overdue. The
Recipient's right to receive such interest will be in addition to any
other rights of the Recipient hereunder or at law. ****
6.6 Refund of Predelivery Payments
------------------------------
The Buyer will have no right to any refund of any deposit or
Predelivery Payment received by the Seller, except as otherwise
provided in 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 Tender of Delivery
------------------
25
<PAGE>
In addition to any other rights and remedies available to the Seller,
the Seller will not be obligated to tender delivery of any Aircraft to
the Buyer, if, *** the Buyer is still in default of its obligation to
make any Predelivery Payment due with respect to such Aircraft.
6.9 Payment in Full
---------------
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.
26
<PAGE>
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, if
possible, 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 reasonably 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 procedures for
such inspections will be agreed upon with the Buyer prior to any
inspection, based on modifications to the Manufacturer's Quality
Instruction document.
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 adequate secretarial assistance and
suitable, private and secure (with access limited and controlled by
the Buyer in its sole discretion) space, office equipment,
telecommunications (including telephone and facsimile lines and
equipment for professional use only) and facilities in or conveniently
located with respect to each of Daimler-Benz's works in Hamburg,
Germany, with respect to A319 Aircraft and A321 Aircraft, and
Aerospatiale's works in Toulouse, France, with respect to A320
Aircraft, for the use of not more than six (6) (or more if reasonably
necessary) representatives of the Buyer during the aforementioned
period.
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 said
representatives will be performed in such manner as not to
unreasonably 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. The Seller will not permit, and
will cause the Manufacturer not to permit, any representatives,
employees, agents or personnel of any other airline or customer to
inspect, or to have access to, the Aircraft or any designs or
specifications relating thereto.
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7.2 INDEMNITY
---------
7.2.1 SCOPE
-----
IN CONNECTION WITH THE PROVISION OF SERVICES UNDER THIS CLAUSE 7, THE
SELLER AND THE BUYER PROVIDE THE INDEMNITIES SET FORTH IN SUBCLAUSES
7.2.2 AND 7.2.3.
7.2.2 SELLER'S 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 DEATHS OF PERSONS (EXCEPTING INJURIES
TO OR DEATH OF THE BUYER'S REPRESENTATIVES PARTICIPATING IN
ANY TESTS, CHECKOUTS OR INSPECTIONS OR CONTROLS UNDER THIS
CLAUSE 7) 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 SAID REPRESENTATIVES) CAUSED
BY THE BUYER OR ITS REPRESENTATIVES,
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
WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE BUYER'S SAID
REPRESENTATIVES.
7.2.3 BUYER'S INDEMNITY
-----------------
THE BUYER WILL INDEMNIFY AND HOLD HARMLESS THE SELLER, THE
MANUFACTURER, EACH OF THE ASSOCIATED CONTRACTORS AND THEIR RESPECTIVE
SUBCONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS AND EMPLOYEES
FROM AND AGAINST ALL LIABILITIES, DAMAGES, LOSSES, COSTS AND EXPENSES
28
<PAGE>
(I) FOR INJURIES TO OR DEATHS OF THE BUYER'S SAID 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 SAID
REPRESENTATIVES, AND
(III) ARISING OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OF THE BUYER'S SAID REPRESENTATIVES.
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, THE MANUFACTURER'S OR ANY OF THE ASSOCIATED CONTRACTORS'
OR THEIR RESPECTIVE SUBCONTRACTORS' OR THEIR RESPECTIVE OFFICERS',
AGENTS' OR EMPLOYEES' WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
7.2.4 CLAIMS
------
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 HAVE THE RIGHT TO
INVESTIGATE, AND THE RIGHT IN ITS SOLE DISCRETION TO ASSUME AND
CONDUCT THE DEFENSE OF OR SETTLE OR COMPROMISE, SUCH CLAIM, ACTION,
PROCEEDING OR LAWSUIT. HOWEVER, IF IN THE REASONABLE OPINION OF THE
INDEMNITEE, SUCH DEFENSE, SETTLEMENT OR COMPROMISE INVOLVES THE
POTENTIAL IMPOSITION OF CRIMINAL LIABILITY ON THE INDEMNITEE OR A
CONFLICT OF INTEREST BETWEEN THE INDEMNITOR AND THE INDEMNITEE, THE
INDEMNITOR WILL NOT BE ENTITLED TO ASSUME AND CONDUCT THE DEFENSE OF
ANY SUCH CLAIM, ACTION, PROCEEDING OR LAWSUIT. THE INDEMNITEES WILL BE
ENTITLED, AT THEIR OWN EXPENSE, ACTING THROUGH ONE (1) COUNSEL, TO
PARTICIPATE IN ANY CLAIM, ACTION, PROCEEDING
29
<PAGE>
OR LAWSUIT THE DEFENSE OF WHICH HAS BEEN ASSUMED BY THE INDEMNITOR
PURSUANT TO THE PRECEDING PROVISIONS, PROVIDED, THAT SUCH
PARTICIPATION DOES NOT, IN THE REASONABLE OPINION OF INDEPENDENT
COUNSEL OF THE INDEMNITOR, INTERFERE WITH THE CONDUCT OF SUCH DE
FENSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY, NO SETTLEMENT OR
COMPROMISE WILL BE ENTERED INTO WITHOUT THE PRIOR WRITTEN CONSENT OF
THE INDEMNITEE, WHICH CONSENT WILL NOT BE UNREASONABLY WITHHELD OR
DELAYED. EACH INDEMNITEE WILL COOPERATE WITH THE INDEMNITOR IN THE
INVESTIGATION AND CONDUCT OF THE DEFENSE OF ANY CLAIM, ACTION,
PROCEEDING OR LAWSUIT INDEMNIFIED HEREUNDER.
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 SAID
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 SUBCONTRACTORS OR ANY OF THEIR RESPECTIVE
DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES WILL BE DEEMED TO BE A
LAWSUIT AGAINST THE SELLER.
30
<PAGE>
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 thirty (30) days' notice of the
proposed date and time when the Buyer's acceptance tests will be
conducted, and, in the event that the Buyer elects to attend the said
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. The tests will take
place at Daimler-Benz's works in Hamburg, Germany, for A319 Aircraft
and A321 Aircraft, and at Aerospatiale's works near Toulouse, France,
for A320 Aircraft, and 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 six (6) (or more if reasonably requested
by the Buyer) acting as observers, of whom not more than two (2) will
have access to the cockpit at any one time and of whom one (1) may act
as copilot, subject to such person's appropriate certification).
During flight tests, these 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 any of the Aircraft for more than an aggregate of three (3)
hours, unless more time is necessary to complete the acceptance tests.
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
each new set of acceptance pilots. This briefing will provide specific
information related to acceptance flights.
8.1.3 The acceptance tests will be designed to demonstrate the satisfactory
functioning of the Aircraft and all systems relating thereto, and
compliance with the terms, requirements and conditions of this
Agreement, including conformity to the Specifications and ***.
The successful completion of such acceptance tests will also be
deemed to demonstrate compliance with the Specifications. The
acceptance tests will be conducted in accordance with the
Manufacturer's aircraft acceptance procedure, as amended to
incorporate the Buyer's reasonable requests. At the time of delivery,
the Aircraft will comply with all relevant limits and tolerances
specified in the Aircraft Maintenance
31
<PAGE>
Manual. In the event that the Buyer does not attend the tests or fails
to so cooperate, the Seller may complete them in the absence of the
Buyer, provided that the Seller has given the Buyer reasonable prior
written notice of not less than seven (7) days of its intention to
complete such tests and the Buyer remains absent or uncooperative. 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. Notwithstanding the above, said acceptance by the
Buyer will not impair the rights of the Buyer that derive from the
warranties relating to the Aircraft.
8.1.4 If the acceptance tests for an Aircraft are not successfully completed
or there is a defect, the Buyer, within two (2) days after such tests,
will give notice to the Seller specifying such unsuccessful completion
or defect. Thereafter the Seller will, without unreasonable hindrance
from the Buyer, carry out any necessary changes and, as soon as
practicable thereafter, resubmit the Aircraft for new acceptance
tests, including flight tests if necessary, demonstrate the
elimination of the defect, such tests to be held and carried out in
accordance with this Subclause 8.1. In order to avoid a delay in the
delivery of any Air craft found to have one or more defects, the Buyer
may elect with the consent of the Seller (such consent not to be
unreasonably withheld) to take delivery of such Aircraft prior to the
correction of such defects and without prejudice to any rights the
Buyer may have under this Agreement against the Seller by reason of
such defects.
In the event the Buyer elects to take delivery of an Aircraft with
defects pursuant to the preceding paragraph, delivery of such Aircraft
will be made as originally scheduled, and such defects will be
corrected, at the Seller's expense, by the Buyer or the Seller at such
subsequent time as is mutually acceptable to the Buyer and the Seller,
and as will be set forth in a written agreement that will state the
settlement agreed by the Buyer and the Seller with respect to such
defects.
8.1.5 Within three (3) months of execution of the Agreement, the Buyer and
the Seller will review the technical documentation provided by the
Seller at delivery of each Aircraft, and, if practicable, will agree
on any reasonable changes to such documentation deemed necessary by
the Buyer.
8.2 Seller's Use of Aircraft
------------------------
The Seller will be entitled to use, without compensation to the Buyer,
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
32
<PAGE>
of any Aircraft hereunder. ***
8.3 Certificate of Acceptance
-------------------------
When the Aircraft is "ready for delivery" as defined below in
Subclause 9.2, the Buyer will forthwith give to the Seller a signed
Certificate of Acceptance in the form attached as Exhibit "E" in
respect of the relevant Aircraft. Should the Buyer fail to so deliver
the said Certificate, then the Buyer will be deemed to be in default
as though it had without warrant rejected delivery of such Aircraft
when duly tendered to it hereunder and will thereafter bear all costs
and expenses resulting from such delay in delivery. The execution and
delivery of a Certificate of Acceptance by the Buyer in respect of an
Aircraft will not constitute waiver by the Buyer of any rights and
remedies it may have in respect of any Aircraft under Clauses 12 and
13 of this Agreement.
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 or otherwise to revoke such acceptance for any reason,
whether known or unknown to the Buyer at the time of acceptance.
8.5 INDEMNITY
---------
8.5.1 SCOPE
-----
IN CONNECTION WITH THE PROVISION OF SERVICES UNDER THIS CLAUSE 8, THE
SELLER AND THE BUYER PROVIDE THE INDEMNITIES SET FORTH IN SUBCLAUSES
8.5.2 AND 8.5.3.
8.5.2 SELLER'S 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 DEATHS OF PERSONS (EXCEPTING INJURIES
TO AND DEATHS OF THE BUYER'S REPRESENTATIVES PARTICIPATING IN
ANY
33
<PAGE>
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 SAID REPRESENTATIVES),
CAUSED BY THE BUYER OR ITS REPRESENTATIVES,
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 FOR ANY SUCH LIABILITIES,
DAMAGES, LOSSES, COSTS OR EXPENSES ARISING OUT OF OR CAUSED BY THE
WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE BUYER'S SAID
REPRESENTATIVES.
8.5.3 BUYER'S INDEMNITY
-----------------
THE BUYER WILL INDEMNIFY AND HOLD HARMLESS THE SELLER, THE
MANUFACTURER, EACH OF THE ASSOCIATED CONTRACTORS AND THEIR RESPECTIVE
SUBCONTRACTORS AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS,
AGENTS AND EMPLOYEES FROM AND AGAINST ALL LIABILITIES, DAMAGES,
LOSSES, COSTS AND EXPENSES
(I) FOR INJURIES TO OR DEATHS OF THE BUYER'S SAID REPRESENTATIVES
PARTICIPATING IN ANY GROUND OR FLIGHT TESTS UNDER THIS CLAUSE
8,
(II) FOR LOSS OF OR DAMAGE TO PROPERTY OF THE BUYER'S SAID
REPRESENTATIVES, AND
(III) ARISING OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OF THE BUYER'S SAID REPRESENTATIVES.
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
34
<PAGE>
LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISE FROM THE
SELLER'S, THE MANUFACTURER'S OR ANY OF THE ASSOCIATED CONTRACTORS' OR
THEIR RESPECTIVE SUBCONTRACTORS' OR THEIR RESPECTIVE OFFICERS',
AGENTS' OR EMPLOYEES' WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
8.5.4 CLAIMS
------
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 HAVE THE RIGHT TO
INVESTIGATE, AND THE RIGHT IN ITS SOLE DISCRETION TO ASSUME AND
CONDUCT THE DEFENSE OF OR SETTLE OR COMPROMISE, SUCH CLAIM, ACTION,
PROCEEDING OR LAWSUIT.
HOWEVER, IF IN THE REASONABLE OPINION OF THE INDEMNITEE, SUCH DEFENSE,
SETTLEMENT OR COMPROMISE INVOLVES THE POTENTIAL IMPOSITION OF CRIMINAL
LIABILITY ON THE INDEMNITEE OR A CONFLICT OF INTEREST BETWEEN THE
INDEMNITOR AND THE INDEMNITEE, THE INDEMNITOR WILL NOT BE ENTITLED TO
ASSUME AND CONDUCT THE DEFENSE OF ANY SUCH CLAIM, ACTION, PROCEEDING
OR LAWSUIT. THE INDEMNITEES WILL BE ENTITLED, AT THEIR OWN EXPENSE,
ACTING THROUGH ONE (1) COUNSEL, TO PARTICIPATE IN ANY CLAIM, ACTION,
PROCEEDING OR LAWSUIT THE DEFENSE OF WHICH HAS BEEN ASSUMED BY THE
INDEMNITOR PURSUANT TO THE PRECEDING PROVISIONS, PROVIDED, THAT SUCH
PARTICIPATION DOES NOT, IN THE REASONABLE OPINION OF INDEPENDENT
COUNSEL OF THE INDEMNITOR, INTERFERE WITH THE CONDUCT OF SUCH DEFENSE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, NO SETTLEMENT OR COMPROMISE
WILL BE ENTERED INTO WITHOUT THE PRIOR WRITTEN CONSENT OF THE
INDEMNITEE, WHICH CONSENT WILL NOT BE UNREASONABLY WITHHELD OR
DELAYED. EACH INDEMNITEE WILL COOPERATE WITH THE INDEMNITOR IN THE
INVESTIGATION AND CONDUCT OF THE DEFENSE OF ANY CLAIM, ACTION,
PROCEEDING OR LAWSUIT INDEMNIFIED HEREUNDER.
35
<PAGE>
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 SAID
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 SUBCONTRACTORS OR ANY OF THEIR RESPECTIVE
DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES WILL BE DEEMED TO BE A
LAWSUIT AGAINST THE SELLER.
36
<PAGE>
9 - DELIVERY
--------
9.1 Delivery Locations, Schedule and Notice of Delivery Date
--------------------------------------------------------
Subject to the provisions of this Agreement, the Seller will have the
Aircraft ready for delivery at Daimler-Benz's works in Hamburg,
Germany, or at Aerospatiale's works near Toulouse, France, as the case
may be.
9.1.1 The Buyer will accept the Aircraft, during the months and years set
forth below in this Subparagraph 9.1.1.
(i) Firm A319 Aircraft
------------------
***
37
<PAGE>
***
38
<PAGE>
(ii) Firm A320 Aircraft
------------------
****
(iii) Reconfirmable A319 Aircraft
---------------------------
***
39
<PAGE>
***
40
<PAGE>
9.1.2 The Seller and the Buyer will agree on the type selection and delivery
dates of the remaining thirty-nine (39) Reconfirmable Aircraft not
later than December 31, 1997.
9.1.3 ***
9.1.4 Not later than thirty (30) days prior to the date scheduled for
acceptance tests for a particular Aircraft, the Seller will give the
Buyer notice of the anticipated date on which such Aircraft will be
ready for delivery. Not later than fifteen (15) days prior to such
date notified to the Buyer, the Seller will (i) confirm to the Buyer
that such anticipated delivery date is firm or (ii) in the event the
Seller cannot confirm such date as being firm, confirm a new date,
which will be no more than two (2) Working Days in Germany, for A319
Aircraft and A321 Aircraft, and France, for A320 Aircraft, before or
after the originally scheduled date.
9.2 Certificate of Airworthiness
----------------------------
Each Aircraft will for the purpose of this Agreement be deemed to be
"ready for delivery" upon (a) the satisfactory completion of its
acceptance tests, (b) the issuance of Certificate of Airworthiness for
Export in the "Transport Category" with respect thereto by the LBA,
with respect to A319 Aircraft and A321 Aircraft, and DGAC, with
respect to A320 Aircraft, and (c) the Seller's compliance with the
other obligations to be performed by it under Subclauses 2.3 and 9.3
hereof.
9.3 Title
-----
Title to and risk of loss of and damage to the Aircraft will pass to
the Buyer upon delivery following execution of the Certificate of
Acceptance and upon payment of the Final Contract Price for such
Aircraft. The Seller will provide the Buyer with (a) an invoice(s) in
form and substance satisfactory to the Buyer, (b) a bill of sale duly
conveying to the Buyer good title to such Aircraft free and clear of
all liens, claims, charges and encumbrances of any kind whatsoever,
(c) an FAA-approved form bill of sale executed by the Seller in favor
of the Buyer, and (d) such other appropriate documents of title or
other documents as the Buyer may reasonably request.
9.4 Buyer Delays
------------
In the event that:
(i) the delivery of and payment of the Final Contract Price for the
41
<PAGE>
Aircraft is delayed more than five (5) days after the firm
delivery date established pursuant to Subclause 9.1 due to any
breach of the Buyer under this Agreement, or
(ii) within two (2) days after delivery of and transfer of title to
the Aircraft the Buyer has failed to remove such Aircraft for
whatever reason (except for reasons attributable to the Seller or
the Manufacturer),
then the Buyer will on demand reimburse the Seller for all reasonable
out-of-pocket costs and expenses 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 under this Agreement as a
result of any such delay or failure.
9.5 Flyaway Expenses
----------------
***
42
<PAGE>
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, misconduct or negligence ("Excusable Delay").
It is expressly understood and agreed that each of (i) any delay
caused directly or indirectly by the Buyer's failure to comply with
its obligations hereunder, and (ii) any 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 or Buyer Furnished
Equipment, will, to the extent attributable to such delay, constitute
Excusable Delay for the Seller, unless such delay or failure of
delivery or other event or circumstance is attributable to any default
by the Seller of its obligations hereunder or any failure of the
Seller to notify the Buyer and the manufacturer of the Propulsion
Systems in a timely manner of the Seller's need therefor.
The Seller will promptly after becoming aware of any delay falling
within the provisions of this Subclause 10.1 (i) notify the Buyer of
such delay and of the probable extent thereof, including, without
limitation, a description of the cause thereof and, if possible, a
possible date of rescheduled delivery in accordance with the terms of
this Agreement, and after such prompt initial notice, apprise the
Buyer of the status of such delay and possible date of such
rescheduled delivery, and (ii) subject to the following provisions, as
soon as practicable after the removal of the cause or causes for
delay, resume the performance of those obligations affected under this
Agreement. The Seller and the Manufacturer will endeavor to limit the
extent of any such delay. The Seller will schedule the delivery of the
Aircraft that is the subject of such delay to a date compatible with
the Aircraft delivery schedule of the Buyer.
10.2 Unanticipated Delay
-------------------
In the event that the delivery of any Aircraft will be delayed by
reason of an Excusable Delay for a period of more than twelve (12)
months after the end of the calendar month in which delivery is
otherwise required hereunder, the Buyer will be entitled to terminate
this Agreement with respect only to the Aircraft so affected upon
written notice given to the Seller within thirty (30)
43
<PAGE>
days after the expiration of such twelve (12) month period. In the
event such delay will continue for an additional six (6) month period
after the expiration of such twelve (12) month period, either party
will have the option to terminate this Agreement with respect to the
Aircraft so affected upon written notice given to the other within
thirty (30) days after the end of such additional six (6) month
period. Any termination of this Agreement in respect of an Aircraft
pursuant to this Subclause 10.2 will discharge all obligations and
liabilities of the parties hereunder with respect to such affected
Aircraft, except that the Seller will repay to the Buyer, within three
(3) Working Days of receipt of notice from the Buyer, an amount equal
to the entire amount of any Predelivery Payments received from the
Buyer hereunder with respect to such affected Aircraft, ***
10.3 Anticipated Delay
-----------------
In respect of any Aircraft, the Seller may conclude that Excusable
Delays will (i) cause delay in delivery of such Aircraft for a period
of more than twelve (12) months after the end of the calendar month in
which delivery is otherwise required or (ii) prevent delivery of such
Aircraft. In such event, in good faith and in accordance with its
normal scheduling procedures, 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, the Buyer may terminate
this Agreement as to such rescheduled or nondeliverable Aircraft by
giving written notice to the Seller. Such termination will discharge
all obligations and liabilities of the parties hereunder with respect
to such affected Aircraft, except that the Seller will repay to the
Buyer, within three (3) Working Days of the Buyer's giving notice to
the Seller, an amount equal to the entire amount of any Predelivery
Payment received from the Buyer hereunder with respect to such
affected Aircraft, ***
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
Subclause 10.3 (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, with a view towards
having each Aircraft subject to such
44
<PAGE>
Excusable Delay ready for delivery as promptly as practicable. ***
10.5 Lost, Destroyed or Damaged Aircraft
-----------------------------------
If any Aircraft suffers a total loss, is destroyed, or is 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. The Seller will repay to the Buyer an amount equal
to the entire amount of any Predelivery Payments received from the
Buyer hereunder with respect to any such Aircraft that is lost,
destroyed or damaged beyond economic repair ***.
***
10.6 ***
10.7 ***
45
<PAGE>
10.8 REMEDIES
--------
THIS CLAUSE 10 SETS FORTH THE SOLE AND EXCLUSIVE REMEDY OF THE BUYER
FOR DELAYS IN DELIVERY OR FAILURE TO DELIVER, OTHER THAN SUCH DELAYS
AS ARE COVERED BY CLAUSE 11, 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 10 TO THE EXTENT THE DELAY REFERRED TO IN THIS CLAUSE 10
IS CAUSED BY THE NEGLIGENCE OR FAULT OF THE BUYER OR ITS
REPRESENTATIVES.
46
<PAGE>
11 - INEXCUSABLE DELAY
-----------------
11.1 Should an Aircraft not be ready for delivery to the Buyer within
thirty (30) days after the date specified in this Agreement (as such
date may otherwise be changed pursuant to this Agreement) for reasons
other than as are covered by Clause 10 or for circumstances specified
in Subclause 11.6 ("Inexcusable Delay"), 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
Buyer's option, pay or credit to the Buyer as liquidated damages for
such subsequent delay in delivery of such Aircraft US $ *** (US
dollars--***) for each day of subsequent delay in the delivery, until
the date of actual delivery or the effective date of the written
notice of termination referred to in Subclause 11.4 plus any amount
referred to in Subclause 11.4. ----
The Seller will immediately after becoming aware of any Inexcusable
Delay or any potential Inexcusable Delay (i) notify the Buyer of such
delay and the probable extent thereof, including, when possible, a
detailed description of the cause thereof and, if possible, a possible
date of rescheduled delivery in accordance with the terms of this
Agreement and after such immediate initial notice, apprise the Buyer
of the status of such delay and possible date of such rescheduled
delivery on a regular basis, and (ii) subject to the following provi
sions, as soon as practicable after the removal of the cause or causes
for delay, resume the performance of those obligations affected under
this Agreement with a view towards having each Aircraft subject to
such Inex cusable Delay ready for delivery as promptly as practicable.
11.2 Total Liability
---------------
Notwithstanding Subclause 11.1, 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 $ *** (US dollars-- *** )
plus any amount referred to in Subclause 11.3 or 11.4.
11.3 ***
---------------------------------
***
47
<PAGE>
11.4 Six-Month Delay
---------------
In the event that an Inexcusable Delay exceeds six (6) months, the
Buyer will have the right, exercisable by written notice to the Seller
given no less than one (1) month and no more than two (2) months after
such six (6) month period, to terminate this Agreement in respect only
of the Aircraft that is subject to such Inexcusable Delay, whereupon
the Seller will pay the Buyer, within one (1) month after such notice,
an amount equal to all Predelivery Payments made by the Buyer to the
Seller in relation to such Aircraft ***
11.5 ***
------------------------
***
11.6 ***
------------------------
11.6.1 ***
11.6.2 ***
11.6.3 ***
11.6.4 ***
48
<PAGE>
11.6.5 ***
11.7 ***
-------------------------
***
11.8 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
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.
49
<PAGE>
12 - WARRANTIES AND SERVICE LIFE POLICY
----------------------------------
12.1 STANDARD WARRANTY
-----------------
12.1.1 Nature of Warranty
12.1.2 Exceptions
12.1.3 Warranty Periods
12.1.4 Buyer's Remedy and Seller's Obligation
12.1.5 Warranty Claim Requirements
12.1.6 Warranty Administration
12.1.7 In-house Warranty
12.1.8 Standard Warranty Transferability
12.1.9 Warranty for Corrected, Replacement or Repaired Warranted Parts
12.1.10 Good Airline Operation - Normal Wear and Tear
12.2 SELLER SERVICE LIFE POLICY
--------------------------
12.2.1 Definitions
12.2.2 Periods and Seller's Undertakings
12.2.3 Seller's Participation in the Cost
12.2.4 General Conditions and Limitations
12.2.5 Transferability
12.3 VENDOR WARRANTIES
-----------------
12.3.1 Seller's Support
12.3.2 Vendor's Default
12.4 INTERFACE COMMITMENT
--------------------
50
<PAGE>
12.4.1 Interface Problem
12.4.2 Seller's Responsibility
12.4.3 Vendor's Responsibility
12.4.4 Joint Responsibility
12.4.5 General
12.5 Performance Standard
12.6 EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS OF LIABILITY
---------------------------------------------------------------
12.7 DUPLICATE REMEDIES
------------------
12.8 SURVIVABILITY
-------------
51
<PAGE>
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 guarantees to the Buyer the performance by the
Manufacturer of the Manufacturer's obligations and assigns to the
Buyer, and the Buyer hereby accepts, all of the rights and obligations
of the Seller in the Seller's capacity as "Buyer" as aforesaid under
the said 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 the Seller has all requisite authority to
make the foregoing assignment and effect the foregoing subrogation to
and in favor of the Buyer and that the Seller 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 and cross-references herein refer to
Clauses and Exhibits in this Agreement or to Paragraphs in any Letter
Agreement hereto.
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, parts and components) having regard to
the state of the art at the date of such design,
52
<PAGE>
(iv) be free from defects arising from failure to conform to the
Specifications,
(v) permit complete interchangeability among Aircraft and parts of
like part-numbered parts, and
(vi) be free and clear of all liens and other encumbrances.
For the purposes of this Agreement, the term "Warranted Part" will
mean any Seller proprietary component, equipment, accessory or part
that at the time of delivery of an Aircraft (a) is installed on or
incorporated in 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, nor to engines, 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 or on 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 or function 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 within
thirty-six (36) months after delivery of the affected Aircraft.
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 hereinabove are limited to, at the
Seller's expense, the
53
<PAGE>
repair, replacement or correction of, or the supply of modifications
kits rectifying the defect for, any defective Warranted Part, as
mutually agreed between and satisfactory to the Buyer and the Seller.
***
. Nothing herein contained will obligate the Seller to correct any
failure to conform to the Specifications 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 or have no material adverse effect on the use, operation or
performance of an Aircraft.
***
12.1.4.2 In the event a defect covered by Subclause 12.1.1 becomes apparent
within the period set forth in Subclause 12.1.3 and the Seller is
obligated to correct such defect, the Seller will also, if so
requested by the Buyer in writing and if reasonably practicable, make
such correction in any affected Aircraft that has not already been
delivered to the Buyer. 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 ***
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
54
<PAGE>
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 returned as soon as reasonably practicable
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
(iv) the Seller's having received a Warranty Claim fulfilling the
conditions of and in accordance with the provisions of Subclause
12.1.6 below.
12.1.6 Warranty Administration
-----------------------
The warranties set forth in Subclause 12.1 will be administered as
hereinafter provided:
(i) Transportation Costs
--------------------
Transportation costs associated with the sending of a defective
Warranted Part to the facilities designated by the Seller and
for the return therefrom of a repaired or replacement Warranted
Part will be borne by the Buyer ***.
(ii) 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, provided that space is available, or at another
mutually acceptable location. Return of any Aircraft by the
Buyer to the Seller and return of such Aircraft to the Buyer's
facilities will be ***
55
<PAGE>
(iii) On-Aircraft Work by the Seller
------------------------------
In the event that a defect subject to this Subclause 12.1 may
justify the dispatch by the Seller of a working team to repair
or correct such defect at the Buyer's facilities, or in the
event of the Seller's accepting the return of an Aircraft to
perform or have performed such repair or correction, ***
as determined in accordance with in Subclause 12.1.7(v)(a).
If the Seller is requested to perform the work, the Seller and
the Buyer will agree on a schedule and place for the work to be
performed.
(iv) Warranty Claim Substantiation
-----------------------------
For each claim under this Subclause 12.1, the Buyer will give
written notice to the Seller that contains at least the
following data, to the extent reasonably ascertainable,
available and relevant, with respect to a part or Aircraft, as
applicable ("Warranty Claim"). The absence of data from any
Warranty Claim will not prejudice validity of such Warranty
Claim. ***
(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 "F" hereto)
as applicable,
56
<PAGE>
(g) total flying hours or calendar times, as applicable, at the
date of appearance of a defect,
(h) time since last shop visit at the date of defect appearance,
(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.
Claims are to be addressed as follows:
AIRBUS INDUSTRIE
CUSTOMER SERVICE DIVISION - SG-C
WARRANTY ADMINISTRATION
ROND-POINT MAURICE BELLONTE
F-31707 BLAGNAC
FRANCE
or to the office of the Resident Customer Support Representatives
assigned to the Buyer under Subclause 15.1.2 of this Agreement.
(v) Acceptance and Rejection
------------------------
***
The Seller will provide reasonable written substantiation in case
of rejection of a Warranty Claim. 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. The Buyer may at any time appeal the rejection with
the Customer Support Director referred to in Subclause 15.3 of
this Agreement.
57
<PAGE>
(vi) Replacements
------------
Replacements made pursuant to this Subclause 12.1 will be made
within the lead time defined in the Seller's Spare Parts Price
List. The Seller will use all reasonable efforts to achieve
expedited handling of replacements. Replaced components,
equipment, accessories or parts will become the Seller's
property.
Title to and risk of loss of any Aircraft, component, accessory,
equipment or part returned by the Buyer to the Seller will at all
times remain with the Buyer, except that (i) when the Seller has
possession of a returned Aircraft, component, accessory,
equipment or part to which the Buyer has title, the Seller will
have such responsibility therefor as is chargeable by law to a
bailee for hire, but the Seller will not be liable for loss of
use, and (ii) title to and risk of loss of a returned component,
accessory, equipment or part will 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 will pass to
the Buyer.
(vii) Inspection
----------
The Seller will 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, on reasonable prior written
notice to the Buyer. Each such inspection will be made during
reasonable times during the Buyer's normal business day and will
not unreasonably interfere with the Buyer's operation or
personnel.
12.1.7 In-house Warranty
-----------------
(i) Authorization
-------------
The Buyer is hereby authorized to perform the repair of Warranted
Parts, subject to the terms of this Subclause 12.1.7 ("In-house
Warranty"). The Buyer will use reasonable efforts to notify the
Seller's representative of its decision to perform any In-house
repairs before such repairs are commenced, unless it is not
practical to do so, in which case the Buyer will notify the
Seller of the In-house repair as soon as reasonably practicable.
(ii) Conditions of Authorization
---------------------------
The Buyer will be entitled to the benefits under this Subclause
12.1.7 for repair of Warranted Parts:
58
<PAGE>
(a) ***
, or
(b) if the following conditions are satisfied:
(i) only if adequate facilities and qualified personnel
are available to the Buyer,
(ii) 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
(iii) only to the extent reasonably necessary to correct the
defect.
(iii) Seller's Rights
---------------
The Seller will 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(i), if,
in the judgment of the Seller, the nature of the defect requires
technical investigation.
Subject to applicable safety rules and the Buyer's contractual
obligations with labor unions, the Seller will further have the
right to have a representative present as an observer during the
disassembly, inspection and testing of any Warranted Part claimed
to be defective. Such representatives will not unreasonably
interfere with the Buyer's operation and personnel.
59
<PAGE>
(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(iv) and in
addition, to the extent ascertainable, 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 (defined below in
Subclause 12.1.7(v)(a)), and
(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. 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 associated with the
repair. Such costs will be determined as set forth below.
(a) To determine direct labor costs, only man-hours spent on
disassembly, inspection, repair, reassembly, and final
inspection
60
<PAGE>
and test (including flight tests if flight tests prove
necessary to complete a repair under the In-house Warranty)
of the Warranted Part 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 composite
average hourly labor rate (*** , including all ***
, social security charges, business taxes and
similar items, but excluding fringe benefits) paid to the
Buyer's employees 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 Labor Rate is ***
(b) Direct material costs are determined by the prices at which
the Buyer acquired such replacement material, excluding any
parts and materials used for overhaul furnished free of
charge by the Seller.
(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
for a replacement of such defective Warranted Part or exceeding
those costs which would have resulted if repairs had been carried
out at the Seller's facilities.
Such cost will be substantiated in writing by the Seller upon
reasonable request by the Buyer.
(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 either one hundred and twenty
(120) days after
61
<PAGE>
the date of completion of repair or ninety (90) days after
submission of a claim for In-house Warranty credit relating
thereto, whichever is longer. Such parts will be returned to the
Seller within thirty (30) days of receipt of the Seller's request
to that effect, at the Seller's cost.
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
----------------------------------
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 OR ANY OTHER ACTIONS UNDERTAKEN BY THE BUYER
UNDER THIS SUBCLAUSE 12.1.7, INCLUDING BUT NOT LIMITED TO: (I)
LIABILITY IN CONTRACT OR TORT, (II) LIABILITY ARISING FROM THE
BUYER'S ACTUAL OR IMPUTED NEGLIGENCE, INTENTIONAL TORTS AND/OR
STRICT LIABILITY, AND/OR (III) LIABILITY TO ANY THIRD PARTIES.
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 owner, lessor, lessee or
operator other than the Buyer, if the Warranted Part enters into the
possession of any such owner, lessor, lessee or operator as a result of
a sale, transfer, lease or other conveyance or as a result of a pooling
or leasing agreement between such owner, lessor, lessee or operator and
the Buyer (and its successors and assigns), in accordance with the
terms and subject to the limitations and exclusions of the foregoing
warranties, and to applicable laws or regulations.
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 replacement
Warranted Part, whichever may be the case, will be ***
. In the event that a defect is attributable to a
defective repair or replacement by the Buyer, a Warranty Claim with
respect to such defect will
62
<PAGE>
not be allowable, notwithstanding any subsequent correction or
repairs.
12.1.10 Good Airline Operation - Normal Wear and Tear
---------------------------------------------
The Buyer's rights under this Subclause 12.1 are subject to the
Aircraft and each component, equipment, accessory and part thereof
being maintained, overhauled, repaired and operated in accordance with
***.
The Seller's liability under this Subclause 12.1 will not extend to
normal wear and tear nor, to the extent caused by any of the
following, to:
(i) any Aircraft or component, equipment, accessory or part thereof
that has been repaired, altered or modified after delivery by a
party other than the Seller or ***;
(ii) any Aircraft or component, equipment, accessory or part thereof
that has been willfully operated in a damaged state (other than
in the case of operational necessity); 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.
This limitation of the Seller's liability will apply in the cases of
Subclause 12.1.10(i) and Subclause 12.1.10(ii) above only to the
extent the Seller submits sufficient evidence proving that the defect
arose from or was contributed to by either of said 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
63
<PAGE>
listed in Exhibit "D" 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.
12.2.1.2 "Failure" means any breakage of, defect in or premature failure of, an
Item that has occurred, or that can reasonably be expected to occur,
based on the Seller's findings or the experience or expertise of the
Buyer or any other owner or operator of the Seller's aircraft, and
that materially impairs the utility or safety of the Item, provided
that any such breakage of, or defect in, any Item did not result from
any breakage or defect in any other Aircraft part or component or from
any other extrinsic force, normally covered under hull insurance
policy.
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 twelve (12) years after the delivery of said 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 terminating 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, less the Seller's financial
participation, which will be determined in accordance with the
following formula:
64
<PAGE>
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: one hundred and forty-four (144) months.
12.2.4 General Conditions and Limitations
----------------------------------
12.2.4.1 Notwithstanding Subclause 12.2.3, the undertakings given in this
Subclause 12.2 will not be valid during the period applicable to an
Item under Subclause 12.1.
12.2.4.2 The Buyer's remedy and the Seller's obligation and liability under
this Service Life Policy are subject to compliance by the Buyer with
the following conditions precedent:
(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, 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 keep the Seller informed of any significant
incidents relating to an Aircraft, howsoever occurring or
recorded.
(iii) The conditions of Subclause 12.1.10 will have been complied
with.
(iv) The Buyer will carry out specific structural inspection programs
for monitoring purposes as may be established from time to time
by the Seller and the Buyer. Such programs will be compatible
with the Buyer's operational requirements and will be carried
out at *** .
(v) In the case of any breakage or defect, *** , after any
65
<PAGE>
breakage or defect in an Item becomes apparent, whether or not
said 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 said breakage or defect is subject
to this Service Life Policy, to the extent the Buyer has such
information available.
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 In the event that the Seller will have issued a modification
applicable to an Aircraft, the purpose of which is to avoid a Failure,
the Seller will offer the necessary modification kit free of charge or
under a prorata formula established by the Seller. 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.
***
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
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THE EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS OF LIABILITY
PROVISIONS SET FORTH IN SUBCLAUSE 12.5, THE BUYER HEREBY WAIVES,
RELEASES AND RENOUNCES ALL CLAIMS TO ANY FURTHER DIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS AND ALL OTHER RIGHTS,
CLAIMS AND REMEDIES, ARISING UNDER OR BY VIRTUE OF THIS SERVICE LIFE
POLICY.
12.3 VENDOR WARRANTIES
-----------------
12.3.1 Seller's Support
----------------
Prior to delivery of the first Aircraft, the Seller will obtain from
all Vendors listed in the Supplier Product Support Agreements manual
enforceable and transferable warranties, service life policies, and
indemnities against patent infringements for Vendor Parts. The Seller
will also obtain enforceable and transferable Vendor service life
policies from landing gear Vendors for selected structural landing
gear elements. The Seller undertakes to supply to the Buyer such
Vendor warranties, Vendor service life policies and indemnities
against patent infringements substantially in the form summarized in
the Supplier Product Support Agreements manual.
12.3.2 Vendor's Default
----------------
12.3.2.1 In the event that any Vendor under any standard warranty or indemnity
against patent infringements obtained by the Seller pursuant to
Subclause 12.3.1 or Clause 13 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 evidence
that such default has occurred, then Subclause 12.1 or Clause 13 of
this Agreement will apply to the extent the same would have been
applicable had such Vendor Part been a Warranted Part except that, for
obligations covered under Subclause 12.1, the shorter of (i) the
Vendor's warranty period as indicated in the Supplier Product Support
Agreements manual and (ii) the Seller's warranty period as indicated
in Subclause 12.1.3 of this Agreement will apply.
12.3.2.2 In the event that any Vendor under any Vendor service life policy
obtained by the Seller pursuant to Subclause 12.3.1 hereof defaults in
the performance of any material obligation with respect thereto, and
the Buyer submits within reasonable time to the Seller reasonable
evidence that such default has occurred, then Subclause 12.2 of this
Agreement will apply to the extent the same would have been applicable
had such component, equipment, accessory or part been listed in
Exhibit "D" hereto.
12.3.2.3 At the Seller's request, 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
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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.
12.4 INTERFACE COMMITMENT
--------------------
12.4.1 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, if requested by
the Buyer, and 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. The Buyer
will furnish to the Seller all data and information in the Buyer's
possession relevant to the Interface Problem and will reasonably
cooperate with the Seller in the conduct of the Seller's
investigations and such tests as may be required.
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 the Seller's recommendations as to
corrective action.
12.4.2 Seller's Responsibility
-----------------------
If the Interface Problem is attributable to the design of a Warranted
Part, the Seller will, if requested by the Buyer, take prompt action
to correct the design of such Warranted Part, pursuant to the terms
and conditions of Subclause 12.1 or 12.2, as applicable.
12.4.3 Vendor's Responsibility
-----------------------
If the Interface Problem is attributable to the design of a component,
equipment, accessory or part other than a Warranted Part ("Vendor
Component"), the Seller will, if requested by the Buyer, promptly
assist and cooperate with the Buyer in processing and enforcing any
warranty claim the Buyer may have against the manufacturer of such
Vendor Component. Further, ***
12.4.4 Joint Responsibility
--------------------
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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, if requested by the Buyer, seek a solution to the
Interface Problem through cooperative efforts of the Seller and any
Vendor involved. The Seller will promptly advise the Buyer of such
corrective action as may be proposed by the Seller and any such
Vendor. Such proposal will be consistent with any then existing
obligations of the Seller hereunder and of any such Vendor to the
Buyer. When the Seller or any Vendor has performed such corrective
action to the reasonable satisfaction of the Buyer, such correction
will constitute full satisfaction of any claim the Buyer may have
against either the Seller or any such Vendor with respect to such
Interface Problem.
12.4.5 All requests under this Subclause 12.4 will be directed to the Seller.
12.5 Performance Standard
--------------------
***
12.6 EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS OF LIABILITY
--------------------------------
THIS CLAUSE 12 (INCLUDING ITS SUBPROVISIONS AND RELATED LETTER
AGREEMENTS) SETS 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 RECOGNIZES THAT THE RIGHTS, WARRANTIES AND REMEDIES IN THIS
CLAUSE 12 (AND RELATED LETTER AGREEMENTS) ARE ADEQUATE AND SUFFICIENT
TO PROTECT THE BUYER FROM ANY DEFECT OR NONCONFORMITY OR PROBLEM OF
ANY KIND IN THE GOODS AND SERVICES SUPPLIED 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
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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, UNLESS OTHERWISE PROVIDED FOR
IN THIS CLAUSE 12 (AND RELATED LETTER AGREEMENTS):
(1) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(2) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(3) 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;
(4) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM COMMERCIAL
CODE OR ANY OTHER STATE OR FEDERAL STATUTE;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR
STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR LOCAL
STATUTE OR AGENCY;
(6) 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
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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 (AND RELATED LETTER AGREEMENTS) SHOULD FOR ANY REASON
BE HELD UNLAWFUL, OR OTHERWISE UNENFORCEABLE, THE REMAINDER OF THIS
CLAUSE 12 (AND RELATED LETTER AGREEMENTS) WILL REMAIN IN FULL FORCE
AND EFFECT.
12.7 DUPLICATE REMEDIES
------------------
THE REMEDIES PROVIDED TO THE BUYER UNDER THIS CLAUSE 12 (AND RELATED
LETTER AGREEMENTS) AS TO ANY DEFECT IN RESPECT OF THE AIRCRAFT OR ANY
PART THEREOF ARE NOT CUMULATIVE. THE BUYER WILL BE ENTITLED TO THE ONE
REMEDY THAT PROVIDES THE MAXIMUM BENEFIT TO IT, AS THE BUYER MAY
ELECT, PURSUANT TO THE TERMS AND CONDITIONS OF THIS CLAUSE 12 (AND
RELATED LETTER AGREEMENTS) FOR ANY SUCH PARTICULAR DEFECT FOR WHICH
REMEDIES ARE PROVIDED UNDER THIS CLAUSE 12 (AND RELATED LETTER
AGREEMENTS); PROVIDED, HOWEVER, THAT, ALTHOUGH THE BUYER MAY
SIMULTANEOUSLY PURSUE MULTIPLE REMEDIES FOR THE SAME DEFECT, THE BUYER
WILL NOT BE ENTITLED TO ELECT A REMEDY UNDER ONE PART OF THIS CLAUSE
12 (AND RELATED LETTER AGREEMENTS) THAT CONSTITUTES A DUPLICATION OF
ANY REMEDY ELECTED BY IT UNDER ANY OTHER PART HEREOF FOR THE SAME
DEFECT.
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 AMOUNT THE BUYER
EXPENDS IN PROCURING A CORRECTION OR REPLACEMENT FOR ANY COVERED PART
SUBJECT TO A DEFECT OR NONPERFORMANCE COVERED BY THIS CLAUSE 12 (AND
RELATED LETTER AGREEMENTS).
UNQUOTE
IN CONSIDERATION OF THE ASSIGNMENT AND SUBROGATION BY THE SELLER UNDER
THIS CLAUSE 12 (AND RELATED LETTER
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AGREEMENTS) 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 (INCLUDING ITS SUBPROVISIONS AND RELATED LETTER
AGREEMENTS) SETS 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 RECOGNIZES THAT THE RIGHTS, WARRANTIES AND REMEDIES IN THIS
CLAUSE 12 (AND RELATED LETTER AGREEMENTS) ARE ADEQUATE AND SUFFICIENT
TO PROTECT THE BUYER FROM ANY DEFECT OR NONCONFORMITY OR PROBLEM OF
ANY KIND IN THE GOODS AND SERVICES SUPPLIED 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, UNLESS
OTHERWISE PROVIDED FOR IN THIS CLAUSE 12 (AND RELATED LETTER
AGREEMENTS):
(1) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(2) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
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(3) 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;
(4) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM COMMERCIAL
CODE OR ANY OTHER STATE OR FEDERAL STATUTE;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR
STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR LOCAL
STATUTE OR AGENCY;
(6) 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 (AND RELATED LETTER AGREEMENTS) SHOULD FOR ANY REASON
BE HELD UNLAWFUL, OR OTHERWISE UNENFORCEABLE, THE REMAINDER OF THIS
CLAUSE 12 (AND RELATED LETTER AGREEMENTS) WILL REMAIN IN FULL FORCE
AND EFFECT.
The remedies provided to the Buyer under this Clause 12 (and related
Letter Agreements) as to any defect in respect of the Aircraft or any
part thereof are
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<PAGE>
not cumulative. The Buyer will be entitled to the one remedy that
provides the maximum benefit to it, as the Buyer may elect, pursuant
to the terms and conditions of this Clause 12 (and related Letter
Agreements) for any such particular defect for which remedies are
provided under this Clause 12 (and related Letter Agreements);
provided, however, that, ***
, the Buyer will not be entitled to elect a remedy under one
part of this Clause 12 (and related Letter Agreements) that
constitutes a duplication of any remedy elected by it under any other
part hereof for the same defect. ***
12.8 SURVIVABILITY
-------------
In respect of all delivered Aircraft, the provisions of this Clause 12
(and related Letter Agreements) will survive any termination of this
Agreement.
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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 guarantees to the Buyer the
performance by the Manufacturer of the Manufacturer's obligations and
assigns to the Buyer, and the Buyer hereby accepts, all of the rights
and obligations of the Seller in the Seller's capacity as "Buyer" as
aforesaid under the said 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 the Seller has
all requisite authority to make the foregoing assignment and effect
the foregoing subrogation to and in favor of the Buyer and that the
Seller 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 and
cross-references herein refer to Clauses and Exhibits in this
Agreement or to Paragraphs in any Letter Agreement hereto.
QUOTE
13.1 Scope
-----
The Seller will indemnify the Buyer from and against any damages,
costs and expenses including reasonable legal costs (excluding
damages, costs, expenses, loss of profits and other liabilities in
respect of or resulting from loss of use of any Aircraft) in case of
any actual or alleged infringement by any Aircraft or any Warranted
Part or the use thereof of
(i) any British, French, German, Spanish or US patent, or
(ii) any patent issued under the laws of any other country in which
the Buyer may lawfully operate the Aircraft, provided that
(a) from the time of design of such Aircraft, accessory,
equipment or part and until infringement claims are
resolved, such country and the flag country of the Aircraft
is each a party to the Chicago Convention on International
Civil Aviation of December 7, 1944, and is bound by and
entitled to all benefits of Article 27 thereof,
or in the alternative,
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(b) from such time of design and until infringement claims are
resolved, such country and the flag country of the Aircraft
is each a party to the International Convention for the
Protection of Industrial property of March 20, 1883 (known
as the "Paris Convention").
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
---------------
Should the Buyer be enjoined (temporarily or permanently) from using
any part of an Aircraft by reason of actual or alleged infringement of
a patent covered by Subclause 13.1, the Seller will as soon as
practicable, after good faith consultation with the Buyer and at the
Seller's expense, either (i) procure for the Buyer the right to use
such part free of any liability for patent infringement or (ii) as
soon as possible replace such part with a non-infringing 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 commencement of suit against
the Buyer for infringement or the Buyer's receipt of a written 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 or claim, giving particulars thereof. 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.
The Seller's obligation hereunder with respect to any actual or
alleged infringement is also conditioned upon (i) the Buyer's promptly
furnishing to the Seller all the data, papers, records and other
assistance within the control of the Buyer material to the resistance
of or defense against any such charge or suits for infringement, (ii)
the Buyer's use of diligent efforts in full cooperation with the
Seller to reduce royalties, damages, costs and expenses involved,
(iii) 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's not
otherwise acting in a manner prejudicial to its or the Seller's
defense of the action.
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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 OR THE LIKE BY ANY AIRCRAFT, ACCESSORY,
EQUIPMENT OR PART, OR THE USE OR SALE THEREOF, PROVIDED THAT, IN THE
EVENT THAT ANY OF THE AFORESAID PROVISIONS SHOULD FOR ANY REASON BE
HELD UNLAWFUL OR OTHERWISE INEFFECTIVE, THE REMAINDER OF THIS
SUBCLAUSE 13.4 WILL REMAIN IN FULL FORCE AND EFFECT. 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),
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WITH RESPECT TO ANY ACTUAL OR ALLEGED PATENT INFRINGEMENT OR THE LIKE
BY ANY AIRCRAFT, ACCESSORY, EQUIPMENT OR PART, OR THE USE OR SALE
THEREOF, PROVIDED THAT, IN THE EVENT THAT ANY OF THE AFORESAID
PROVISIONS SHOULD FOR ANY REASON BE HELD UNLAWFUL OR OTHERWISE
INEFFECTIVE, THE REMAINDER OF THIS CLAUSE WILL REMAIN IN FULL FORCE
AND EFFECT. THIS PATENT INDEMNITY WILL NOT BE EXTENDED, ALTERED OR
VARIED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY THE SELLER AND THE
BUYER.
13.5 SURVIVABILITY
-------------
In respect of all delivered Aircraft, the provisions of this Clause 13
will survive any termination of this Agreement.
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<PAGE>
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 (the
"Technical Publications"). Such Technical Publications are listed in
Exhibit "F" of this Agreement together with the form, type, format and
quantity of each such Technical Publication.
14.2 Specification
-------------
14.2.1 The Technical Publications are prepared according to applicable ATA
specifications. Exhibit "F" references the relevant ATA specification
for each affected Technical Publication.
14.2.2 Technical Publications will be customized as indicated in Exhibit "F."
***.
14.2.3 Technical Publications at delivery of the Aircraft will correspond to
the Specifications of the Aircraft as defined at least six (6) months
before such delivery. The Seller will continuously monitor
technological and ATA specification developments and apply them to the
production and method of transmission of Technical Publications.
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 first Aircraft will be mutually agreed. 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 ***
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14.4 Language
--------
The Technical Publications (including drawings) will be supplied in
the English language using aeronautical terminology in common use.
14.5 Revision Service
----------------
14.5.1 General
-------
Unless otherwise specifically stated, ***
14.5.2 Service Bulletins
-----------------
Service Bulletin (SB) information will be incorporated into the
Technical Publications after notice from the Buyer of embodiment of a
Service Bulletin. The split effectivity for the corresponding Service
Bulletin 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 Request for
Publication Change ("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 and
will label such data "COC."
14.5.3.3 The Seller will use all reasonable efforts to introduce the COC into
the relevant Technical Publications as soon as possible following the
receipt of complete and accurate data for processing, but no later
than two (2) revisions after submission of the COC.
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
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<PAGE>
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.
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 DIRECTLY OR INDIRECTLY
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, PROVIDED THAT THE
BUYER IS PROVIDED AN OPPORTUNITY TO ASSUME THE DEFENSE AND/OR A
SETTLEMENT OF SUCH CLAIM. 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 Vendor Equipment
----------------
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14.6.1 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.
14.6.2 The Buyer will supply or cause to be supplied to the Seller the data
related to Buyer Furnished Equipment and Seller Furnished Equipment
not covered in the Seller's standard Seller Furnished Equipment
definition at least six (6) months before the scheduled delivery of
the customized Technical Publications.
14.6.3 The Seller will introduce into the basic issue of the Technical
Publications the data related to Buyer Furnished Equipment and Seller
Furnished Equipment, at no charge to the Buyer.
14.7 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. 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 Fleet Serial Number
allocated to the Aircraft Manufacturer's Serial Number within
forty-five (45) days after execution of this Agreement. The allocation
of Fleet Serial Numbers 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)
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
-----------------------
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If feasible 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 "F," 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.
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 save as permitted therein, or as provided in Subclause
14.11.2, 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 This Agreement does not restrict the Buyer from using any Technical
Publications or data supplied by the Seller for the purpose of
maintenance, repair or modification of Aircraft. ***
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.
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14.11.4 In the event that the Seller has authorized the disclosure to third
parties, either under this Agreement or by express written
authorization, the Buyer will undertake to bind such third party to
the same conditions and restrictions as the Buyer with respect to such
disclosure, as set forth in this Subclause 14.11.
14.12 Warranties as to Technical Publications
---------------------------------------
The Seller warrants that the Technical Publications are prepared in
accordance with the state of the art at the date of their conception.
Should a Technical Publication prepared by the Seller contain errors
or omissions, the sole and exclusive liability of the Seller will be,
at its option, to correct or replace such Technical Publication. ***
. Notwithstanding the above, no warranties of any kind are
given for the Customer Originated Changes, as set forth in Subclause
14.5.3. The Exclusivity of Warranties and General Limitations of
Liability provisions of Subclause 12.6 of this Agreement will apply to
all Technical Publications.
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15 - FIELD ASSISTANCE
----------------
15.1 Seller's Service
----------------
15.1.1 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 locations
to be designated by the Buyer.
15.1.2 The Seller will provide Resident Customer Support Representatives
acting in an advisory capacity at the Buyer's main base ***
. The actual number of Resident Customer Support
Representatives allocated to the Buyer will be mutually agreed.
15.1.3 If requested by the Buyer, the Seller will arrange for similar
services to be procured by competent representatives of the Propulsion
Systems manufacturer and, by representatives of Vendors (other than
Vendors of Buyer Furnished Equipment).
15.1.4 The Seller will provide one (1) Customer Support Director based in
Herndon, Virginia, 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
---------------
For as long as the Customer Support Representative(s) specified in
Subclause 15.1.1 above remain(s) with the Buyer, the Buyer will
furnish without charge, suitable office 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.
15.3 Advisory Capacity
-----------------
In providing the technical services contemplated by this Agreement,
all of the Seller's, Manufacturer's and Associated Contractors, and
any of their employees, representatives, or agents 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 agents or
employees of the Buyer.
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15.4 Temporary Assignment of Customer Support Representative
-------------------------------------------------------
The Buyer agrees that the Seller will have the right upon notice to
and consultation with the Buyer to transfer or recall any Customer
Support Representative(s) on a temporary or permanent basis. The Buyer
will receive credit for the man-days during which any Customer Support
Representative is absent from the Buyer's facility pursuant to this
Subclause 15.4.
15.5 INDEMNITY AND INSURANCE
-----------------------
15.5.1 SCOPE
-----
IN CONNECTION WITH THE PROVISION OF SERVICES UNDER THIS CLAUSE 15, THE
BUYER AND THE SELLER PROVIDE THE INDEMNITIES SET FORTH IN SUBCLAUSES
15.5.2 AND 15.5.3.
15.5.2 BUYER'S INDEMNITY
-----------------
THE BUYER WILL INDEMNIFY AND HOLD HARMLESS THE SELLER, THE
MANUFACTURER, ASC AND EACH OF THE ASSOCIATED CONTRACTORS AND THEIR
RESPECTIVE SUBCONTRACTORS 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 DEATHS OF PERSONS (EXCEPTING INJURIES TO
AND DEATHS 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 SAID REPRESENTATIVES), CAUSED BY THE
SELLER OR ITS REPRESENTATIVES.
ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF SERVICES UNDER
THIS CLAUSE 15.
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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 GROSS NEGLIGENCE OF THE SELLER'S, THE
MANUFACTURER'S OR ANY OF THE ASSOCIATED CONTRACTORS' OR THEIR
RESPECTIVE SUBCONTRACTORS' OR THEIR RESPECTIVE OFFICERS', AGENTS' OR
EMPLOYEES' SAID REPRESENTATIVES.
15.5.3 SELLER'S 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 INJURIES TO OR DEATHS OF THE SELLER'S SAID REPRESENTATIVES
PROVIDING THE SERVICES UNDER THIS CLAUSE,
(II) FOR LOSS OF OR DAMAGE TO PROPERTY OF THE SELLER'S SAID
REPRESENTATIVES, AND
(III) ARISING OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OF THE SELLER'S SAID 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 WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
15.5.4 CLAIMS
------
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
15.5, THE FORMER (INDEMNITEE) WILL PROMPTLY GIVE NOTICE TO THE OTHER
PARTY (INDEMNITOR), AND THE INDEMNITOR WILL HAVE THE RIGHT TO
INVESTIGATE, AND THE RIGHT IN ITS SOLE DISCRETION TO ASSUME AND
CONDUCT THE DEFENSE OF OR SETTLE OR COMPROMISE, SUCH CLAIM, ACTION,
PROCEEDING OR LAWSUIT.
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HOWEVER, IF IN THE REASONABLE OPINION OF THE INDEMNITEE, SUCH DEFENSE,
SETTLEMENT OR COMPROMISE INVOLVES THE POTENTIAL IMPOSITION OF CRIMINAL
LIABILITY ON THE INDEMNITEE OR A CONFLICT OF INTEREST BETWEEN THE
INDEMNITOR AND THE INDEMNITEE, THE INDEMNITOR WILL NOT BE ENTITLED TO
ASSUME AND CONDUCT THE DEFENSE OF ANY SUCH CLAIM, ACTION, PROCEEDING
OR LAWSUIT. THE INDEMNITEES WILL BE ENTITLED, AT THEIR OWN EXPENSE,
ACTING THROUGH ONE (1) COUNSEL, TO PARTICIPATE IN ANY CLAIM, ACTION,
PROCEEDING OR LAWSUIT THE DEFENSE OF WHICH HAS BEEN ASSUMED BY THE
INDEMNITOR PURSUANT TO THE PRECEDING PROVISIONS, PROVIDED, THAT SUCH
PARTICIPATION DOES NOT, IN THE REASONABLE OPINION OF INDEPENDENT
COUNSEL OF THE INDEMNITOR, INTERFERE WITH THE CONDUCT OF SUCH DEFENSE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, NO SETTLEMENT OR COMPROMISE
WILL BE ENTERED INTO WITHOUT THE PRIOR WRITTEN CONSENT OF THE
INDEMNITEE, WHICH CONSENT WILL NOT BE UNREASONABLY WITHHELD OR
DELAYED. EACH INDEMNITEE WILL COOPERATE WITH THE INDEMNITOR IN THE
INVESTIGATION AND CONDUCT OF THE DEFENSE OF ANY CLAIM, ACTION,
PROCEEDING OR LAWSUIT INDEMNIFIED HEREUNDER.
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 SAID
DEFENSE. FOR THE PURPOSE OF THIS SUBCLAUSE 15.5, A CLAIM OR LAWSUIT
AGAINST THE MANUFACTURER OR ANY OF THE ASSOCIATED CONTRACTORS OR ANY
OF THEIR RESPECTIVE SUBCONTRACTORS OR ANY OF THEIR RESPECTIVE
DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES WILL BE DEEMED TO BE A CLAIM
OR LAWSUIT AGAINST THE SELLER.
15.5.5 INSURANCE
---------
FOR THE PERIOD OF PERFORMANCE DESCRIBED IN THIS CLAUSE, 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
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SUBCONTRACTORS AND THEIR RESPECTIVE 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 SAID 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.
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16 - TRAINING
--------
16.1 Scope
-----
The Seller will provide or cause to be provided for the Buyer's
personnel training described in this Clause 16 ("Training").
16.2 Course Organization and Administration
--------------------------------------
16.2.1 Location and Scheduling
-----------------------
In general, Training will be held either at the Airbus Service Company
Training Center, in Miami, Florida (the "ATC-Miami"), or at the Airbus
Training Center in Toulouse, France (the "ATC-Toulouse"). Subject to
availability of training slots at the time and at the selected
location, the location of the Training will be at the Buyer's choice.
The Seller will ensure that the Buyer's training plans (to be provided
to the Seller reasonably in advance of the delivery of Aircraft) are
implemented for a safe and smooth entry-into-service of the Aircraft.
However, certain Training courses may also be held at the Buyer's base
or other location, if practicable, under terms and conditions to be
mutually agreed. The Buyer's training plans will include: (i)
just-in-time (determined on a reasonable basis) training of flight
crews, (ii) all necessary simulator time for regular transition
courses, and (iii) aircraft experience for check pilots, and (iv)
maintenance, dispatch and flight attendant training.
Training courses will be scheduled for a minimum and maximum number of
participants, at dates mutually agreed during a training conference to
be held as soon as practicable (the "Training Conference").
16.2.2 Course Content
--------------
Training courses will include features of the Specifications required
for training purposes, as known at the latest six (6) months before
the first Training course starts. The Seller will endeavor to
incorporate training features that become known after the six-month
deadline. When the Seller does not provide maintenance or flight
attendant training on the Seller's approved Buyer Furnished Equipment,
the Seller will ensure that the Buyer gets the relevant training
support from the supplier of the said equipment. Training courses will
be FAA approved "Transition Courses." The Seller will provide the
Buyer with A319/A320/A321 differences training for flight crew,
maintenance, dispatch and/or flight attendant personnel.
Training equipment used for flight and maintenance crew training will
reflect
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the Specifications as closely as possible and will meet requirements
to receive and maintain the relevant FAA course approval. Maintenance
training will not assume prior knowledge of any Airbus aircraft. The
Seller will be responsible for all Training course syllabi, training
aids, equipment and materials.
16.2.3 Course Guidelines
-----------------
Courses are designed and approved to bring jet transport specialists
to a professional knowledge of the Aircraft and satisfy FAA
requirements for training and checking. The Seller will use reasonable
efforts to satisfy the Buyer's requirements and policies regarding
training.
In addition:
(i) Training will be conducted in English, and all training
materials are written in English using common aeronautical
terminology.
(ii) Pilot trainees will have the prerequisite jet transport category
experience defined in Appendix "A" to this Clause 16.
(iii) Avionics courses (listed in Appendix "B" to this Clause 16) are
designed for avionics specialists knowledgeable of ARINC 429
liaisons.
(iv) The Buyer will give the Seller a list of trainees enrolling in
each Training course.
(v) The Seller will not be liable for the unsatisfactory performance
of individual trainees for any reason solely and directly
outside the Seller's control.
(vi) The Seller will consult with the Buyer if the Seller finds that
a trainee lacks entry-level knowledge. After such consultation,
the trainee will either be cycled through an entry-level
training program or be withdrawn from the Training course. All
costs associated with such entry-level program and with the
cancellation of the scheduled transition training will be
charged to the Buyer's account.
(vii) The Seller will give all trainees who satisfactorily complete
Training courses a certificate of completion including the
instructor's name and identification number. This certificate
will not represent authority or qualification by any official
civil aviation authority, although it may be presented to such
authority as an attestation of completion of the Seller's
training courses.
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(viii) 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) will be provided on the Buyer's
request and/or on the Seller's advice and subject to mutual
agreement. ***
16.2.4 Additional Training
-------------------
Besides the free-of-charge Training courses provided pursuant to
Subclause 16.3, the Seller will offer additional training courses and
training services at the Buyer's expense, subject to availability.
16.2.5 Training at the Buyer's Base
----------------------------
16.2.5.1 At the Buyer's request, and if practicable, the Training will be
provided by the Seller's instructors at any location other than ATC-
Miami or ATC-Toulouse. ***
The Buyer may provide the Seller with air travel for the Seller's
instructors to and from ATC-Miami or ATC-Toulouse, as applicable, and
the place of assignment.
16.2.5.2 The Training equipment necessary for course performance on the Buyer's
request at any location other than ATC-Miami or ATC-Toulouse will be
provided by the Buyer in accordance with the Seller's specifications.
In the event the Buyer cannot make available the relevant equipment,
the Seller will use reasonable efforts to provide this equipment and
send it by air from Miami, Florida, or Toulouse, France, to the
course location and back to Miami, Florida, or Toulouse, France, at
the Buyer's expense.
16.2.6 Practical Training on Aircraft
------------------------------
16.2.6.1 ***
16.2.6.2 Any *** Flight Crew Training involving the use of an aircraft will be
done on the Buyer's delivered Aircraft. Should the Buyer require on-
aircraft Flight
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Crew Training to be done before delivery of the first Aircraft, then
(i) the Seller will help the Buyer find a substitute aircraft, and
(ii) ***.
When on-aircraft Flight Crew Training is performed at ATC-Toulouse,
the Seller will provide free-of-charge line maintenance, including
servicing, preflight checks and changing of minor components for the
contractual training sessions. In the case that the training is
performed on the Buyer's aircraft, the Buyer will provide a mutually
agreed batch of spare parts as required to support said training and
will bear all other expenses such as fuel, oil and landing fees. In
the event that the Seller is not able to provide sufficient simulator
time to train the Buyer's crews, and it becomes necessary to use the
Aircraft instead, the Seller will compensate the Buyer US$ *** (US
dollars--*** ) (in 1996 dollars) per flight hour.
Finally, the Buyer will meet the requirement for a certificate of
insurance set forth below in Subclause 16.6.5.
16.2.7 Buyer's Personnel Transportation
--------------------------------
When flight crew, flight attendant, dispatch and maintenance Training
is done at ATC-Toulouse, 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 rental car (with unlimited mileage, the Buyer
paying for gas) or taxi transportation at the end of ground school to
enable crews to attend either simulator or flight sessions.
When training is done at ATC-Miami, the Seller will provide a free-of-
charge rental car (with unlimited mileage, the Buyer paying for gas)
or taxi transportation for all of the Buyer's trainees, at the
beginning of the Training course. Due to local laws, the Buyer's
trainees must be over twenty-one (21) years of age to drive rental
cars.
16.2.8 Duration
--------
The Training allowances provided in Subclause 16.3 will be available
*** .
16.3 Training Courses
----------------
16.3.1 Flight Crew Courses
-------------------
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16.3.1.1 Flight Crew Transition Course
-----------------------------
The Seller will train free of charge *** flight crews (each of which
consists of a captain and a first officer) per delivered Aircraft in
accordance with the Buyer's operational requirements. The training
manual will be the Airbus Industrie Flight Crew Operating Manual
(FCOM) or the Buyer's flight crew training manual at the Buyer's
option. The Buyer's standard operating procedures will be incorporated
into the Seller's Flight Crew Transition course, provided that the
Buyer provides the Seller such procedures at least one (1) month prior
to the start of the first Flight Crew Transition course. The Buyer
will receive no compensation from the Seller should the Buyer elect to
perform some Flight Crew Transition courses partially or totally on
dry lease.
16.3.1.2 Flight Crew Initial Operating Experience
----------------------------------------
To assist the Buyer with Initial Operating Experience during the
Buyer's introduction of the Aircraft into revenue service, the Seller
will provide the Buyer instructor-pilots free of charge *** . This
assistance will be provided on the Aircraft.
***
16.3.1.3 Flight Instructor Familiarization Course
----------------------------------------
The Seller will provide a certain number of the Buyer's Instructor
pilots with a Flight Instructor Familiarization Course.
16.3.2 Maintenance Courses
-------------------
16.3.2.1 Maintenance Training
--------------------
The Seller will provide free-of-charge Training courses for ground
personnel for a total of *** trainee-days of instruction. The range of
maintenance courses is listed in Appendix "B" to this Clause 16. The
Buyer may elect to use part of this Training allowance to perform some
maintenance training classes at another US carrier on a space
available basis.
The trainee days will be counted as follows:
(i) For instruction at ATC-Miami or at ATC-Toulouse, the total number
of trainee days counted will be the number of trainees enrolled
at the beginning of a Training course multiplied by the number of
days of
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instruction.
(ii) For instruction at locations other than the ATC-Miami or at the
ATC-Toulouse, the total number of trainee days counted will be
the greater of twelve (12) and the number of trainees enrolled
at the beginning of a Training course multiplied by the number
of days of detachment of the Seller's instructor(s).
16.3.2.2 Maintenance Initial Operating Experience
----------------------------------------
To help the Buyer with maintenance Initial Operating Experience, such
as Aircraft handling and servicing, flight crew and maintenance
coordination, use of manuals and any other activities that the
instructor might deem necessary after delivery of the first Aircraft,
the Seller will provide the Buyer free of charge *** maintenance
instructor-days at the Buyer's base. Additional Initial Operating
Experience will be provided at the Buyer's expense.
16.3.3 Flight Attendants/Operations/Performance Courses
------------------------------------------------
The Seller will provide free of charge *** trainee days of instruction
to be used for the training courses listed in Appendix "C" to this
Clause 16. In the event the Buyer would like the main features of the
Specifications to be covered during the aircraft visit of the Flight
Attendants Familiarization Course, such visit may be given as of two
(2) weeks before delivery of the first Aircraft.
16.3.4 Familiarization Training
------------------------
At the Buyer's request the Seller will conduct general familiarization
courses for the Buyer's employees. Training allowance in Subclause
16.3.2.1 will be used to cover such courses.
16.3.5 Vendors and Engine 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 as required by the Buyer.
A list of such major Vendors will be supplied to the Buyer on request.
16.4 Training Aids and Materials
---------------------------
16.4.1 Training Aids for Trainees at the Seller's Training Centers
-----------------------------------------------------------
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For the purposes of this Subclause 16.4.1, it is understood that
training aids and materials provided to the Buyer's trainees by the
Seller (a) are supplied for the sole and express purpose of providing
Training in the courses described in Subclause 16.3 of this Agreement
and therefore are labeled "For Training Only," (b) are free of charge,
(c) include all cockpit layouts, all printed course materials,
including manuals and supporting documents. Computer hardware,
software and Courseware (including simulators and simulator data
packages) and all other equipment will be provided to the trainees
solely for use during the Seller's training courses.
Since the Training is for the Buyer's trainees only, the Buyer
undertakes not to divulge the contents of any training aids or
materials 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 or as permitted by Subclause
16.4.2.
16.4.2 Training Aids for the Buyer's Training Organization
---------------------------------------------------
The Seller will provide free of charge *** of the Courseware related
to the Aircraft and similar to that used by the Seller for the Buyer's
training organization, except as provided in this Subclause 16.4.2.
Such Courseware will be for the training of the Buyer's personnel only
and will include a revision service ***
.
The Courseware to be provided to the Buyer will be:
(i) supplied with a license in the Buyer's name, and
(ii) compatible with the hardware platform defined by the Aviation
Industry CBT Committee (AICC), which is fully approved by the Air
Transport Association and International Air Transport
Association.
***
Any additional sets of Courseware and/or any extension to the Buyer's
right to use such Courseware will be subject to terms and conditions
to be mutually agreed. General conditions for the supply of the
Courseware will apply and will be detailed during the Training
Conference.
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***
16.5 Seller's Support
----------------
The Seller will help the Buyer with the development and introduction
of Aircraft training programs at the Buyer's training center, on the
Buyer's request and terms to be agreed. The Seller will provide free-
of-charge technical assistance in modifying the standard Courseware
routers to the Buyer's in-house training programs.
16.6 INDEMNITY AND INSURANCE
-----------------------
16.6.1 SCOPE
-----
IN CONNECTION WITH THE PROVISION OF SERVICES UNDER THIS CLAUSE 16, THE
BUYER AND THE SELLER PROVIDE THE INDEMNITIES SET FORTH IN SUBCLAUSES
16.6.2 AND 16.6.3.
16.6.2 BUYER'S INDEMNITY
-----------------
THE BUYER WILL INDEMNIFY AND HOLD HARMLESS THE SELLER, THE
MANUFACTURER, AND EACH OF THE ASSOCIATED CONTRACTORS AND THEIR
RESPECTIVE SUBCONTRACTORS 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 DEATHS OF PERSONS (EXCEPTING INJURIES TO
AND DEATHS 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 SAID REPRESENTATIVES), CAUSED BY THE
SELLER OR ITS REPRESENTATIVES.
ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF SERVICES UNDER
THIS CLAUSE 16.
THIS INDEMNITY OF THE BUYER WILL NOT APPLY FOR ANY SUCH LIABILITIES,
DAMAGES, LOSSES, COSTS OR EXPENSES
97
<PAGE>
ARISING OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE
OF THE SELLER'S, THE MANUFACTURER'S OR ANY OF THE ASSOCIATED
CONTRACTORS' OR THEIR RESPECTIVE SUBCONTRACTORS' OR THEIR RESPECTIVE
OFFICERS', AGENTS' OR EMPLOYEES' SAID REPRESENTATIVES.
16.6.3 SELLER'S 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 INJURIES TO OR DEATHS OF THE SELLER'S SAID REPRESENTATIVES
PROVIDING THE SERVICES UNDER THIS CLAUSE,
(II) FOR LOSS OF OR DAMAGE TO PROPERTY OF THE SELLER'S SAID
REPRESENTATIVES, AND
(III) ARISING OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OF THE SELLER'S SAID 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 WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
16.6.4 CLAIMS
------
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
16.6, THE FORMER (INDEMNITEE) WILL PROMPTLY GIVE NOTICE TO THE OTHER
PARTY (INDEMNITOR), AND THE INDEMNITOR WILL HAVE THE RIGHT TO
INVESTIGATE, AND THE RIGHT IN ITS SOLE DISCRETION TO ASSUME AND
CONDUCT THE DEFENSE OF OR SETTLE OR COMPROMISE, SUCH CLAIM, ACTION,
PROCEEDING OR LAWSUIT.
HOWEVER, IF IN THE REASONABLE OPINION OF THE INDEMNITEE, SUCH DEFENSE,
SETTLEMENT OR COMPROMISE INVOLVES THE POTENTIAL IMPOSITION OF CRIMINAL
LIABILITY
98
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ON THE INDEMNITEE OR A CONFLICT OF INTEREST BETWEEN THE INDEMNITOR AND
THE INDEMNITEE, THE INDEMNITOR WILL NOT BE ENTITLED TO ASSUME AND
CONDUCT THE DEFENSE OF ANY SUCH CLAIM, ACTION, PROCEEDING OR LAWSUIT.
THE INDEMNITEES WILL BE ENTITLED, AT THEIR OWN EXPENSE, ACTING THROUGH
ONE (1) COUNSEL, TO PARTICIPATE IN ANY CLAIM, ACTION, PROCEEDING OR
LAWSUIT THE DEFENSE OF WHICH HAS BEEN ASSUMED BY THE INDEMNITOR
PURSUANT TO THE PRECEDING PROVISIONS, PROVIDED, THAT SUCH
PARTICIPATION DOES NOT, IN THE REASONABLE OPINION OF INDEPENDENT
COUNSEL OF THE INDEMNITOR, INTERFERE WITH THE CONDUCT OF SUCH DEFENSE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, NO SETTLEMENT OR COMPROMISE
WILL BE ENTERED INTO WITHOUT THE PRIOR WRITTEN CONSENT OF THE
INDEMNITEE, WHICH CONSENT WILL NOT BE UNREASONABLY WITHHELD OR
DELAYED. EACH INDEMNITEE WILL COOPERATE WITH THE INDEMNITOR IN THE
INVESTIGATION AND CONDUCT OF THE DEFENSE OF ANY CLAIM, ACTION,
PROCEEDING OR LAWSUIT INDEMNIFIED HEREUNDER.
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 SAID
DEFENSE. FOR THE PURPOSE OF THIS SUBCLAUSE 16.6, A CLAIM OR LAWSUIT
AGAINST THE MANUFACTURER OR ANY OF THE ASSOCIATED CONTRACTORS OR ANY
OF THEIR RESPECTIVE SUBCONTRACTORS OR ANY OF THEIR RESPECTIVE
DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES WILL BE DEEMED TO BE A CLAIM
OR LAWSUIT AGAINST THE SELLER.
16.6.5 INSURANCE
---------
FOR THE PERIOD OF PERFORMANCE DESCRIBED IN THIS CLAUSE, THE BUYER WILL
(I) INDEMNIFY AND WAIVE ANY RIGHTS OF RECOURSE OR SUBROGATION AGAINST
THE SELLER, THE MANUFACTURER, AND EACH OF THE ASSOCIATED
CONTRACTORS AND THEIR RESPECTIVE SUBCONTRACTORS AND THEIR
RESPECTIVE DIRECTORS,
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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 SAID 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 CLAUSE.
100
<PAGE>
CLAUSE 16 - APPENDIX "A"
------------------------
RECOMMENDED PILOT EXPERIENCE
----------------------------
IN RELATION TO TRANSITION TRAINING
----------------------------------
1. CAPTAINS
--------
The Seller recommends that captains have a minimum of 1,000 hours'
experience in command of jet transport category aircraft prior to
transition training provided under Clause 16 of this Agreement.
2. SENIOR CO-PILOTS
----------------
Senior co-pilots upgrading to captain and who do not have the recommended
minimum described above in Paragraph 1 will be considered for transition
training provided under Clause 16 of this Agreement on a case-by-case.
3. CO-PILOTS
---------
The Seller recommends that copilots have a minimum of 500 hours' experience
operating transport aircraft, of which at least 300 hours' should be with
jet transport aircraft. This recommended minimum includes formal basic
training.
4. ALL PILOTS
----------
The Seller recognizes that some pilots have no experience with FMS, AFCS,
glass cockpits or two-person (as compared to three-person) crews, features
covered in the Seller's "Introductory Course." Therefore, the Seller
recommends that those pilots take its "Introductory Course," before taking
transition training provided under Clause 16 of this Agreement. For pilots
who do not have jet transport experience, the Seller recommends its "Jet
Familiarization Course."
101
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CLAUSE 16 - APPENDIX "B"
------------------------
LIST OF STANDARD A319, A320 AND A321 MAINTENANCE COURSES
--------------------------------------------------------
The letters "J," "E" and "H" below respectively designate courses for A319, A320
and A321 aircraft.
J/E/H M01 GENERAL FAMILIARIZATION
J/E/H M02 RAMP AND TRANSIT
J/E/H M31 LINE MECHANICS/AVIONICS (LEVEL 2)
J/E/H M42 BASE MECHANICS, ELECTRICS AND AVIONICS (LEVEL 3)
J/E/H M45 BASE MECHANICS AND ELECTRICS (LEVEL 3)
J/E/H M52 BASE ELECTRICS AND AVIONICS (LEVEL 3 )
J/E/H M07 ENGINE RUN-UP
J/E/H M09 MECHANIC CONTROL RIGGING
J/E/H M10 CABIN INTERIOR AND EMERGENCY EQUIPMENT
J/E/H M11 STRUCTURE REPAIR
J/E/H M12 ON THE JOB PRACTICAL TRAINING
J/E/H M16 SPECIFIC NONDESTRUCTIVE TESTING
J/E/H M17 COMPOSITE STRUCTURE REPAIR
J/E/H M18 ETOPS MAINTENANCE
J/E/H M20 AIRCRAFT INTEGRATED DATA SYSTEM MAINTENANCE
J/E/H MG04 CARGO LOADING AND HANDLING
J/E/H M42E A319/A320/A321 DIFFERENCES
XM15 BASIC DIGITAL AND MICROPROCESSOR
J/E/H M21 STRUCTURE REPAIR FOR ENGINEERS/METALLIC STRUCTURES
J/E/H M23 MATERIALS AND PROCESSES FOR ENGINEERS
Note : The above list of courses is provided for information only and is ----
subject to modifications.
102
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CLAUSE 16 - APPENDIX "C"
------------------------
LIST OF A319, A320 AND A321 OPERATIONS/PERFORMANCE COURSES
----------------------------------------------------------
In the list below, the letters "J," "E" and "H" respectively designate courses
for A319, A320 and A321 aircraft.
J/E/H FC3 FLIGHT ATTENDANT FAMILIARIZATION COURSE
J/E/H G01 MANAGEMENT SURVEY COURSE
J/E/H G02 PERFORMANCE ENGINEER'S COURSE
J/E/H G03 DISPATCHER'S COURSE
J/E/H FC5 FLIGHT CREW GROUND INSTRUCTOR'S COURSE
J/E/H G06 WEIGHT AND BALANCE COURSE
J/E/H G07 LOAD MASTER TRANSITION
J/E/H G08 ETOPS DISPATCHER
J/E/H G38 DISPATCHER TRANSITION AND ETOPS QUALIFICATION
J/E/H G67 WEIGHT AND BALANCE, LOAD MASTER TRANSITION
Note: The above list of courses is provided for information only and is
- ---- subject to modifications.
103
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17 - VENDORS' PRODUCT SUPPORT
------------------------
17.1 Vendor Product Support Agreements
---------------------------------
17.1.1 The Seller has obtained product support agreements transferable to the
Buyer from Vendors of Seller Furnished Equipment listed in the
Specifications ("Product Support Agreements").
17.1.2 These 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:
17.1.2.1 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. The Seller recommends that software data, supplied
in the form of an appendix to the Component Maintenance Manual, be
provided in compliance with ATA Specification 102 up to level 3.
17.1.2.2 Warranties and guarantees including Vendors' standard warranties. In
addition, Vendors of landing gear will provide service life policies
for landing gear structures.
17.1.2.3 Training to ensure efficient operation, maintenance and overhaul of
the Vendors' items for the Buyer's instructors, shop and line service
personnel.
17.1.2.4 Spares data in compliance with ATA Specification 200 or 2000, initial
provisioning recommendations, spares and logistics service, including
routine and emergency deliveries.
17.1.2.5 Technical service to assist the Buyer with maintenance, overhaul,
repair, operation and inspection of Vendor items as well as required
tooling and spares provisioning.
17.2 Vendor Compliance
-----------------
The Seller will monitor Vendor compliance with support commitments
defined in the Product Support Agreements and will promptly take
remedial action.
104
<PAGE>
17.3 Vendor Part Repair Stations
---------------------------
17.3.1 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.
17.3.2 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.
17.3.3 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 manual) to be offered to the Buyer ***
.
105
<PAGE>
18 - BUYER FURNISHED EQUIPMENT AND DATA
----------------------------------
18.1 Installation and Delivery
-------------------------
18.1.1 Without additional charge, and in accordance with the Specifications,
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 reasonably
in advance 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 an SCN.
18.1.3 The Seller will also cause the Manufacturer to furnish reasonably in
advance (but in no event less than eight (8) months prior to the
scheduled delivery date) 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, field service representatives to provide the
Manufacturer technical advice regarding the installation and
calibration of Buyer Furnished Equipment.
18.2 Specification and Airworthiness Approvals
-----------------------------------------
The Buyer will ensure that all Buyer Furnished Equipment will meet the
requirements of the Specifications, will comply with applicable LBA,
for A319 Aircraft and A321 Aircraft, DGAC, for A320 Aircraft, and FAA
regulations and will be approved by the LBA, DGAC, 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, DGAC and FAA approval, unless such adjusting and
calibrating is made necessary by improper installation by the Seller
of the Buyer Furnished Equipment.
18.3 Delay and Nonperformance
------------------------
106
<PAGE>
Any delay or failure in complying with the obligation 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, for A319 Aircraft and A321 Aircraft, DGAC for A320
Aircraft, or FAA regulations **** will be, to the extent that such
delay or failure will in turn,
(i) delay the performance of any act to be performed by or on behalf
of the Seller or the Manufacturer, or
(ii) cause the Final Contract Price of the Aircraft to be increased by
the amount of the Seller's reasonable 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,
the responsibility of the Buyer, and 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 will be entitled to cause the Manufacturer to select,
purchase and install the Buyer Furnished Equipment involved, in which
event the Final Contract Price of the affected Aircraft will be
increased by the purchase price of such Buyer Furnished Equipment plus
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 to obtain certification of the Aircraft
in accordance with Subclause 2.3 hereof is not approved by the LBA,
for A319 Aircraft and A321 Aircraft, DGAC, for A320 Aircraft, or 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, the Seller will be
entitled to deliver the affected Aircraft without installing the Buyer
Furnished Equipment, but otherwise in full compliance with the terms,
conditions and requirements of this Agreement (including, without
limitation, Subclause 2.3) and all performance guarantees. Upon such
delivery the Seller will be relieved of all obligations to install
such Buyer Furnished Equipment.
107
<PAGE>
18.3.4 If (i) 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 is not required for certification of the Aircraft and is not
approved by the LBA, for A319 Aircraft and A321 Aircraft, DGAC, for
A320 Aircraft, or FAA within thirty (30) days after the date specified
by the Manufacturer for the delivery of such Buyer Furnished
Equipment, then the Seller will be entitled to deliver the Aircraft
with no obligation to install such Buyer Furnished Equipment. The
Buyer may also elect to have the Aircraft so delivered, whereupon the
Seller will be relieved of all obligations to install such Buyer
Furnished Equipment.
18.4 Tax-Free Zones
--------------
The Buyer will cause all Buyer Furnished Equipment to be delivered at
its own expense to tax-free zones at the following addresses, unless
the Seller notifies the Buyer otherwise in writing. Final destinations
are specified in the Buyer Furnished Equipment delivery instructions.
For A320 Aircraft, at:
AEROSPATIALE, SOCIETE NATIONALE INDUSTRIELLE
316, Route de Bayonne
31300 TOULOUSE
FRANCE
For A319 Aircraft and A321 Aircraft, at:
DAIMLER-BENZ AEROSPACE AIRBUS GmbH
Division Hamburger Flugzeugbau
Kreetslag 10
21129 HAMBURG
GERMANY
The Seller represents and warrants that there are no taxes, duties,
imposts or similar charges of any nature whatsoever in connection with
the delivery of Buyer Furnished Equipment in the tax-free zones
specified above (or subsequently by the Seller).
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
108
<PAGE>
as is chargeable by law to a bailee for hire, but will not be liable
for loss of use.
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 Specifications, 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 subject to the execution of an SCN reflecting
the effect on price and any other items and conditions of this
Agreement. In such a case, the Seller will be entitled to the payment
of a reasonable handling charge (with respect to Buyer Furnished
Equipment not manufactured by the Manufacturer) and will bear no
liability in respect of any delay caused and product support
commitments assumed by the Vendor of such Buyer Furnished Equipment,
provided that the Seller has exercised due diligence in procuring such
Buyer Furnished Equipment. The provisions of Subclauses 18.2 and 18.3
will apply to Buyer Furnished Equipment covered under this Subclause
18.6 in the event of any delay in approval or delivery of such Buyer
Furnished Equipment.
18.7 ***.
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<PAGE>
19 - ASSIGNMENT
----------
19.1 Successors and Assigns
----------------------
Subject to the provisions of this Subclause 19.1, 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, such consent not to be unreasonably withheld. 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
of any Associated Contractor provided that (i) such
--------
assignment will not release or diminish the obligations and
liabilities of the Seller hereunder or in respect of any Aircraft and
(ii) such assignment does not increase the obligations, liabilities,
risk, burden, costs or expenses of the Buyer hereunder.
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 provided that (i) such
designation will not release or diminish the obligations and
liabilities of the Seller hereunder or in respect of any Aircraft, and
(ii) such designation does not increase the obligations, liabilities,
risk, burden, costs or expenses of the Buyer hereunder. 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 provided that
(i) such designation will not release or diminish the obligations and
liabilities of the Seller hereunder or in respect of any Aircraft, and
(ii) such designation does not increase the obligations, liabilities,
risk, burden, costs or expenses of the Buyer hereunder.
19.3 Assignment in Case of Resale or Lease
-------------------------------------
In the event of the resale or lease of any Aircraft, pursuant to a
financing arrangement, by the Buyer before, upon, or after delivery
thereof to the Buyer, the Buyer's rights with respect to such Aircraft
under this Agreement, other than the Buyer's rights under Clauses 3,
14, 15, 16 and 17 hereof and
110
<PAGE>
Letter Agreements hereto, other than Letter Agreement No. 1, may be
assigned to the extent necessary to complete the financing on
commercially reasonable terms. The Seller will consent to such
assignment provided that, prior to such assignment, the Buyer
furnishes to the Seller a true copy of such agreement with such
purchaser or lessor, clearly stating that such purchaser or lessor
acknowledges that it is bound by and will comply with all applicable
terms, conditions and limitations of this Agreement.
19.4 ***
---------------------------------------------------
***
19.5 ***
----------------------------------------------------
***
19.6 ***
----------------------------------
111
<PAGE>
***
112
<PAGE>
20 - DATA RETRIEVAL
--------------
On the Seller's reasonable request, the Buyer may provide the Seller
with data 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, operational
and cost data with a view to improving the safety, availability and
operational costs of the Aircraft.
113
<PAGE>
21 - TERMINATION FOR CERTAIN EVENTS
------------------------------
21.1 Seller's Termination Rights
---------------------------
21.1.1 Any of the following will be considered a material breach of the
Buyer's obligations under this Agreement ("Material Breach"):
(1) The Buyer or any other party will commence any case, proceeding
or other action with respect to the Buyer 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 its
debts and such case, proceeding or action remains undismissed or
unstayed for more than ninety (90) consecutive days.
(2) An action is commenced seeking the appointment of a receiver,
trustee, custodian or other similar official for the Buyer for
all or substantially all of its assets and such action remains
undismissed or unstayed for more than ninety (90) consecutive
days, or the Buyer makes a general assignment for the benefit of
its creditors.
(3) An action is commenced against the Buyer seeking issuance of a
warrant of attachment, execution, distraint or similar process
against all or any substantial part of its assets and such action
remains undismissed or unstayed for more than ninety (90)
consecutive days.
(4) The Buyer generally admits in writing that it is unable to pay
its debts as they come due.
(5) There is a voluntary liquidation, winding up or analogous event
with respect to the Buyer.
(6) The Buyer is in default on its obligation to make any Predelivery
Payment pursuant to Subclause 6.2 of this Agreement and ***
.
(7) The Buyer defaults on any payment obligation relating to any
Aircraft and such default is not cured within the applicable
grace periods, with respect to ***
114
<PAGE>
(8) The Buyer is in default for more than thirty (30) consecutive
days in its obligation to take delivery of an Aircraft as
provided in Subclause 9.3 of this Agreement, subject to the
provisions of Subclause 22.3.4.
21.1.2 In the event of any Material Breach by the Buyer, the Seller will at
its option by written notice to the Buyer have the right to resort to
any remedy provided herein or under applicable law, including, without
limitation, the right by written notice, effective immediately, to (i)
suspend its performance with respect to undelivered Aircraft under the
Agreement, (ii) reschedule the delivery dates for Aircraft or for
other goods and services to be provided with respect to undelivered
Aircraft, (iii) terminate this Agreement with respect to any or all
undelivered Aircraft, and to any or all services, data and other items
with respect to undelivered Aircraft on the effective date of such
termination and (iv) 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.
21.2 ***
-----------------------------------
21.2.1 ***
21.2.2 ***
115
<PAGE>
22 - MISCELLANEOUS PROVISIONS
------------------------
22.1 Notices
-------
All notices and requests required or authorized hereunder will be
given in writing either by personal delivery to a responsible officer
of the party to whom the same is given or by commercial express
courier, facsimile or other mutually agreeable electronic transmission
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 express courier, facsimile or other
electronic transmission, the date upon which sent, will be deemed to
be the effective date of receipt of such notice or request.
The Seller will be addressed at:
2, rond-point Maurice Bellonte
31700 BLAGNAC FRANCE
Attention: Director - Contracts
Telephone: (33) 5 61 30 40 12
Fax: (33) 5 61 30 40 11
Telex: AVSA 521155F
The Buyer will be addressed at:
2345 Crystal Drive
Arlington, VA 22227
Attention: Treasurer
Telephone: 703-872-5918
Fax: 703-872-5936
with a copy to the attention of the Buyer's Office of the General
Counsel at the same address:
Attention: Aircraft Counsel
Fax: 703-872-5252
From time to time, the party receiving the notice or request may
designate another address or another person.
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<PAGE>
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 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; SUBMISSION TO JURISDICTION; WAIVER OF
-------------------------------------------------------------
IMMUNITY; DISPUTE RESOLUTION
----------------------------
22.3.1 INTERPRETATION AND LAW
----------------------
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.
THE PARTIES HEREBY ALSO AGREE THAT THE UNITED NATIONS CONVENTION ON
THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS TRANSACTION.
22.3.2 SUBMISSION TO JURISDICTION
--------------------------
EACH OF THE BUYER AND THE SELLER IRREVOCABLY AGREES THAT ANY LEGAL
ACTION OR PROCEEDING ARISING UNDER THIS AGREEMENT MAY BE BROUGHT AND
DETERMINED IN THE SUPREME COURT OF THE STATE OF NEW YORK, NEW YORK
COUNTY, IN THE GENERAL DISTRICT COURTS OF FAIRFAX COUNTY OR ARLINGTON
COUNTY, VIRGINIA, OR IN THE UNITED STATES DISTRICT COURTS FOR THE
SOUTHERN DISTRICT OF NEW YORK, OR THE EASTERN DISTRICT OF VIRGINIA AND
IRREVOCABLY ACCEPTS WITH REGARD TO ANY SUCH ACTION OR PROCEEDING THE
NONEXCLUSIVE JURISDICTION OF THOSE COURTS.
117
<PAGE>
The Seller hereby irrevocably designates 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 in any legal
action or proceeding with respect to this Agreement.
22.3.3 Waiver of Immunity
------------------
The Seller irrevocably waives the benefit of Articles 14 and 15 of the
French Civil Code, for the purpose of this Agreement. The Seller
hereby irrevocably waives, and agrees not to assert, the defense of
sovereign immunity, and, to the extent permitted by law, the defense
that the action or proceeding is brought in an inconvenient forum,
that the venue of the action or proceeding is improper, or that this
Agreement may not be enforced in or by such courts.
22.3.4 ***
-----------------------------------
***
22.4 Confidentiality
---------------
Subject to any legal or governmental requirements of disclosure, the
parties (which for this purpose will include their employees, agents
and advisors) will maintain the terms and conditions of this
Agreement, any reports or other data furnished, and other documents
furnished by the Seller hereunder strictly confidential. Without
limiting the generality of the foregoing, each party 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 it
with any governmental agency and will make such applications as will
be necessary
118
<PAGE>
to implement the foregoing. With respect to any public disclosure or
filing, the disclosing party agrees to submit to the other party a
copy of the proposed document to be filed or disclosed and will give
the other party a reasonable period of time in which to review the
said document. The Buyer and the Seller will consult with each other
prior to the making of any 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 Severability
------------
In the event that any provision of this Agreement should for any
reason be held to be without effect, the remainder of this Agreement
will remain in full force and effect. To the extent permitted by
applicable law, each party hereto hereby waives any provision of law
which renders any provision of this Agreement prohibited or
unenforceable in any respect.
22.6 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
AVSA Term Sheet dated November 5, 1996 (Reference AVSA 5183.8),
between the Seller and the Buyer and all letter agreements ancillary
thereto). 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.
22.7 Inconsistencies
---------------
In the event of any inconsistency between the terms of this Agreement
and the terms contained in either (i) the Specifications, or (ii) any
other Exhibit or Letter Agreement attached to this Agreement, in each
such case the terms of such Specifications, Exhibit or Letter
Agreement will prevail over the terms of this Agreement. For the
purpose of this Subclause 22.7, the term Agreement will not include
the Specifications or any other Exhibit or Letter Agreement hereto.
22.8 Language
--------
All correspondence, documents and any other written matters in
connection with this Agreement will be in English.
119
<PAGE>
22.9 Headings
--------
All headings in this Agreement are for convenience of reference only
and do not constitute a part of this Agreement.
22.10 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.
120
<PAGE>
IN WITNESS WHEREOF, these presents were entered into as of the day and
year first above written.
AVSA, S.A.R.L.
By: /s/ Christophe Mourey
------------------------------
Title: Chief Executive Officer
US Airways Group, Inc.
By: /s/ Thomas A. Fink
------------------------------
Title: Treasurer
121
<PAGE>
CONSENT AND GUARANTY
--------------------
Airbus Industrie, G.I.E., established under "Ordonnance" No. 67-821
dated September 23, 1967, of the Republic of France (the "Guarantor"), hereby
acknowledges notice of and consents to all of the terms of the Airbus
A319/A320/A321 Purchase Agreement dated as of October 31, 1997 (as amended,
modified, or supplemented from time to time, the "Agreement"), between AVSA,
S.A.R.L. (the "Seller"), and US Airways Group, Inc. (the "Buyer"), including,
without limitation, the assignments of the Seller's rights under its agreements
with the Guarantor, contained in Clauses 12 and 13, Letter Agreements Nos. 1,
8A, 8B, 8C, 9, 10, 12 and 13 of such Agreement, and hereby irrevocably and
unconditionally guarantees the due and punctual payment and performance by the
Seller of all of the latter's liabilities and obligations as set forth in the
said Agreement subject to the terms and limitations therein contained. The
Guarantor hereby agrees that its obligations hereunder will be unconditional and
absolute and, without limiting the generality of the foregoing, will not be
released, discharged or otherwise affected by (i) any modification or amendment
of or supplement to said Agreement (other than release, discharge or waiver of
this guarantee hereunder) or (ii) any assignment of said Agreement or of any
rights or obligations thereunder made in accordance with Clause 19 thereof. The
Guarantor further agrees that it will execute and deliver such other and further
instruments as may be reasonably requested by the Buyer (as such term is defined
in the said Agreement), its successors or assigns to reaffirm its obligations
hereunder. This Consent and Guaranty constitutes a guaranty of performance and
of payment, and the Guarantor agrees that, in case of default by the Seller, the
Buyer will not be required to file suit against the Seller as a condition to
enforcement of this Consent and Guaranty.
The Guarantor irrevocably agrees that any legal action or proceeding
against the Guarantor with respect to this Consent and Guaranty may be brought
and determined in the Supreme Court of the State of New York, New York County,
in the General District Courts of Fairfax County or Arlington County, Virginia,
in the United States District Courts for the Southern District of New York or
the Eastern District of Virginia, or in the commercial Court ("Tribunal de
Commerce") of Toulouse, France, and irrevocably accepts with regard to any such
action or proceeding the nonexclusive jurisdiction of those courts. The
Guarantor irrevocably waives the benefit of Articles 14 and 15 of the French
Civil Code. The Guarantor hereby irrevocably waives, and agrees not to assert,
the defense of sovereign immunity, and, to the extent permitted by law, the
defense that the action or proceeding is brought in an inconvenient forum, that
the venue of the action or proceeding is improper, or that this Consent and
Guaranty may not be enforced in or by such courts. However, the preceding
sentence will not be construed as a waiver of any requirement of service of
process. The Guarantor hereby irrevocably designates CT Corporation as the
Guarantor's agent to receive service of process in any legal action or
proceeding with respect to this Consent and Guaranty.
122
<PAGE>
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.
Airbus Industrie, G.I.E.,
By /s/ Jean Pierson
---------------------------------
Title: Managing Director
123
<PAGE>
EXHIBIT "A-1"
The A319 Standard Specification is contained in a separate folder.
<PAGE>
EXHIBIT "A-2"
The A320 Standard Specification is contained in a separate folder.
<PAGE>
EXHIBIT "A-3"
The A321 Standard Specification is contained in a separate folder.
<PAGE>
EXHIBIT B
Change Orders to Standard Specification (SCNs)
<PAGE>
US AIRWAYS TECHNICAL APPENDIX EXHIBIT B
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
EPAC-TDU TITLE VENDOR BFE notes A320 A319 A321 COMMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
02-10-111-01 FAA certification *** *** ***
03-20-220-02 MTOW Increase to 77T - A320/75.5T - A319/
89T - A321 *** *** ***
09-10-104-02 737 Tow bar fitting *** *** ***
21-28-110-03 Ventilation system aft cargo compt 1 *** *** ***
21-27-107-02 Avionics Ventilation fan alternate CHOICE *** *** ***
21-27-108-01 Avionics ventilation filter alternate CHOICE *** *** ***
21-20-108-01 Cabin Recirc filter alternate CHOICE *** *** ***
21-43-104-0X Installation of heating system for aft
cargo compt. CHOICE *** *** *** Liebherr or Hamilton Std
22-70-122-01 FMS/ACARS broadcast/Extended FMS/ACARS *** *** ***
22-70-106-01 Automatic erasing of flight planning data
after landing *** *** ***
22-70-113-02 Time constraint/10 characters 2 *** *** ***
22-70-121-01 FMS cross loading 2 *** *** ***
22-70-101-04 FMS Data base memory extension 2 *** *** ***
22-70-150-XX New standard for FMS CHOICE * 2 *** Honeywell or Smiths
73-20-107-XX Selectable derate via the MCDU * 3 *** study item for new FMS
23-12-147-06 Third VHF system installation CHOICE *** *** ***
23-11-111-01 Full provisions for Dual HF *** *** ***
46-21-100-02 Provisions for Air Traffic Services Unit
(ATSU) for ACARS *** *** ***
46-21-200-01 Installation of Air Traffic Services Unit
(ATSU) for ACARS *** *** ***
46-21-201-01 ATSU Data loading capability for ACARS BFE *** *** *** acars software
23-70-101-01 CVR hot mike capability *** *** ***
23-13-101-01 Installation of 3rd RMP *** ***
23-71-103-XX Installation of Cockpit Voice Recorder CHOICE *** *** *** charge for 2hr unit only
23-51-136-16 Installation of Alternate Boomsets CHOICE *** *** *** Single jack plug
***
25-11-101-01 3rd occupant seat armrest in cockpit *** *** ***
25-11-117-02 Pilots seat headrests *** *** ***
25-11-108-01 Installation of 4th Occupant seat *** *** ***
25-20-182-01 Cargo floor panels for heavy usage *** *** ***
25-50-40x-01 syst/struct provisions for ACE cargo
loading system 6 *** *** ***
25-50-4xx-01 Installation of ACE cargo loading
system (SFE) 6 *** *** ***
26-16-102-01 dual loop smoke detection system aft
cargo compartment *** *** ***
26-16-103-01 dual loop smoke detection system fwd
cargo compartment *** *** ***
26-23-103-01 Fire extinguisher system for fwd and aft
cargo compartments *** *** ***
27-00-113-02 Installation of A319 SFCC on A320 *** *** ***
27-92-101-02 Simultaneous sidestick indication
(aural/visual) *** *** ***
29-10-110-01 ABEX alt vendor EDPs *** *** ***
29-21-104-01 ABEX alt vendor EHPs *** *** ***
29-22-101-01 Installation of Sundstrand RAT on A320 *** *** ***
- ------------------------------------------------------------------------------------------------------------------------------------
AVSA/TECH APP ISSUE 12 11/5/97
</TABLE>
Page 1
<PAGE>
US AIRWAYS TECHNICAL APPENDIX EXHIBIT B
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
EPAC-TDU TITLE VENDOR BFE notes A320 A319 A321 COMMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
30-70-108-01 Cold weather package installation *** *** *** latest standard
30-11-104-01 Grimes alt vendor WAI valve *** *** ***
31-00-107-01 Use of US units rather than metric *** *** ***
31-14-103-01 Overhead toggle panel switch reorientation * *** *** ***
31-36-101-XX Installation of DMU (AIDS) inc PCMCIA card *** *** *** ***w/o pcmcia card
31-64-100-01 Installation of single cue V-Bar flight
director * *** *** ***
31-33-200-XX Installation of SSFDR CHOICE *** *** ***
32-11-104-01 Installation of Radial Tyres 46x17 R20 *** *** ***
32-48-103-02 Installation of Brake cooling fans *** *** ***
32-48-xxx-xx Installation of automatic brake cooling fans 4 ***
33-xx-xxx-xx NO LAPTOP signs in place of illuminated NO
SMOKING signs * 4 ***
34-10-116-01 ADIRS equipment 4MCU CHOICE *** *** ***
34-20-202-01 Standby instruments on LCD display *** *** ***
34-43-127-25 Installation TCAS II CHOICE BFE *** *** *** plus @ $ 100,000 BFE
34-43-129-02 TCAS display option *** *** ***
34-52-143-02 ATC transponders Arinc 900 CHOICE *** *** ***
34-55-102-01 VOR/Marker alternate vendor CHOICE *** *** ***
34-42-101-01 Radio altimeter alternate vendor CHOICE *** *** ***
34-42-117-01 Radio altitude automatic call outs *** *** *** To be defined
34-42-XXX-01 Weather radar specific Control panel CHOICE *** *** *** Dual sweep/gain
34-42-XXX-02 Single weather radar and windshear prediction CHOICE *** *** ***
34-51-101-08 DME interrogator Arinc 900 CHOICE *** *** ***
34-52-XXX-01 System provisions for EGPWS
34-52-XXX-01 Installation of Enhanced GPWS *** *** ***
34-XX-XXX-01 System provisions for Multi Mode Receiver
(Replaces ILS and GPS) 1 *** *** ***
34-XX-XXX-02 Installation of a Multi Mode Receiver
(Replaces ILS and GPS) CHOICE *** *** ***
35-11-101-02 Flight crew O2 bottle 115 cuft steel *** *** *** 35-31-XXX-01
Installation of four oxygen masks per PSU *** *** ***
49-00-105-01 Installation of APU CHOICE *** *** *** APIC OR ALLIED
51-20-10X-XX Exterior paint process CHOICE *** *** *** low voc Courtalds or AKZO
02-40-101-01 Exterior livery *** *** *** D112-11135 / D111-77111
02-40-101-XX Additional exterior markings *** *** *** USA to advise
52-33-203-01 Bulk cargo door deletion *** *** ***
56-10-102-05 Cockpit windows (PPG) CHOICE *** *** ***
72-00-112-XX Engine selection for CFM 56-5Bxx *** *** *** See Purchase Agreement
77-32-100-01 Installation of ENDEVCO engine vibration
monitoring unit (EVMU) 5 ***
79-00-101-01 ESSO 2380 engine and APU oil *** *** ***
79-40-101-XX IDG oil level viewing port *** *** ***
</TABLE>
Page 2 VSA/TECH APP ISSUE 12 11/5/97
<PAGE>
US AIRWAYS TECHNICAL APPENDIX EXHIBIT B
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------------
EPAC-TDU TITLE VENDOR BFE notes A320 A319 A321 COMMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
23-32-011-XX Install. pre-recorded announc. & boarding
music BFE *** *** ***
23-32-010-XX System provisions and installation for
pax audio entertainment CHOICE BFE *** *** ***
23-36-010-XX Provisions and Installation of video with
PSU mounted screens, -VCC in fwd stowage CHOICE BFE *** *** ***
23-36-020-0X Video (PA) in use light in flight compartment *** *** ***
23-73-000-10 CIDS - Common director on A320 *** *** ***
23-73-002-22 CIDS - Common handsets on A320 *** *** ***
23-73-000-20 CIDS - Common lighting panel on A320 *** *** ***
23-73-001-10 2-zone passenger address *** *** ***
23-73-001-20 PA priority for first attendant *** *** ***
23-73-002-30 Conference call between all cabin attendants
and flight compartment *** *** ***
23-73-002-31 Cabin interphone Monitoring via Flight
compartment *** *** ***
23-73-002-61 Installation of an all cabin attendants call
push button in the flt compartment *** *** ***
23-73-003-10 2 zone passenger to cabin attendant call *** *** ***
23-73-003-40 Passenger call indication on attendant
indication panels *** *** ***
23-73-005-10 2 zone cabin illum. cntl from the fwd
attendant panel and the attendant panel aft *** *** ***
23-73-006-21 EVAC signal via all cabin attendant and
passenger compt loudspeakers *** *** ***
23-73-007-10 Lav. smoke warning tone via cabin attendant
station loudspeakers only *** *** ***
23-73-009-10 Slides ARMED and doors CLOSED indication at
fwd attendant station *** *** ***
23-53-102-01 Cabin ready for takeoff indication from the
fwd attendant station (ECAM solution) *** *** ***
***
Emerg. Equip. Emergency Equipment installation CHOICE BFE *** *** ***
Cabin interior colour spec
25-28-100 Alternate non-textile floor covering
(Taraflex) - BFE CHOICE BFE *** *** ***
Inst of BFE NTF in Lavs BFE
Textile covered dado panels BFE
Textile covered Bulkheads BFE
Tedlar covering for OHSC doors
C/A seats with leather covering BFE
Global cabinX Cabin layout - one or two class. CHOICE BFE *** *** ***
25-22-300 Wall-mounted single C/A seat for inst. in
front of fwd door and in aft door area *** *** ***
25-22-500 Swivel C/A seat in place of basic single C/A *** *** ***
25-31-010 Transversal galley location in front of fwd
door RH - GI CHOICE BFE *** *** ***
25-33-050 Transversal galley location of aft door - GV CHOICE BFE *** *** ***
25-24-100 Lockable door for OHSC *** *** ***
25-27-112 Standard literature pocket (SFE) - 4
additional pockets *** *** ***
25-40-540 Additional handles for handicapped pax. - 3 Lavs *** *** ***
*** *** *** total see notes
25-52-100-XX Inst. of slide rafts at fwd and aft door
(Overwater option on selected aircraft only) *** *** *** Selected aircraft
NOTES Total does not include, Slideraft installation, Selectable
derate via the MCDU, installation of Endevco EVMU
installation/provisions for ACE cargo loading sytem.
1) These items offered free of charge as per the termsheet app 2
and 3
2) NEW STANDARD FMS includes ten charactures, X Loading and
extended data base memory . This is offered at a price of *** *** ***
Scheduled availability of new std FMS is end 1998(Honeywell &
mid 1999 for Sextant) AVSA price for retrofit of New FMS will
not exeed the production price . This will cover any updates
required to peripheral computers but the actual FMS/MCDUs will
be the
</TABLE>
Page 3 AVSA/TECH APP ISSUE 12 11/5/97
<PAGE>
<TABLE>
<CAPTION>
US AIRWAYS TECHNICAL APPENDIX EXHIBIT B
- ----------------------------------------------------------------------------------------------------------------------------------
EPAC-TDU TITLE VENDOR BFE NOTES A320 A319 A321 COMMENTS
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
responsibility of the selected vendor.
3) Selectable derates will be part of the
new STD FMS the option price will be * *** *** ***
4) Automatic brake cooling fans and NO
LAPTOP SIGNS are still under study
price TBD
5) The leadtime for Endevco will be 18 to
24 months from SCN acceptance at a price of ***
6) The price for the system provisions for ACE
cargo loading system is as follows *** *** ***
The price for the Installation of the ACE
cargo loading system SFE will be: *** *** *** Requires prior AC of
provisions
*) For the marked items AVSA assures that the option price for USA will
be equal or less than any other Airbus operator. This condition will
also apply to GPS Sole means of navigation, DGPS, and Primary LCD
displays when available. All prices are in jan 96 delivery conditions.
Page 4
</TABLE>
<PAGE>
EXHIBIT "C"
-----------
<PAGE>
================================================================================
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)
- ------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PRICE PER AIRCRAFT
- ------------------
US DOLLARS: Base Year:____________________ Current Year:__________________
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: (Authorized finance department officer) Date:
By:
Title: (Authorized maintenance or flight operations officer)
Date:
================================================================================
<PAGE>
================================================================================
AVSA SCN No.
SPECIFICATION CHANGE NOTICE Issue
(SCN) Dated
Page No.
- --------------------------------------------------------------------------------
After contractual agreement with respect to weight, performance, delivery, etc.,
the indicated part of the specification wording will read as follows:
================================================================================
<PAGE>
================================================================================
AVSA SCN No.
SPECIFICATION CHANGE NOTICE Issue
(SCN) Dated
Page No.
- --------------------------------------------------------------------------------
SCOPE OF CHANGE (FOR INFORMATION ONLY)
- ---------------
================================================================================
<PAGE>
EXHIBIT "D"
-----------
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, Spar Webs, Chords and Stiffeners
---------------------------------------
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 and engine mounts
2.4.3 Attachment fittings and support structure for the main landing
gear
2.4.4 Attachment fittings for the center wing box
2.4.5 Wing-to-body structural attachments
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/support stays on wing box rear spar or shroud
box
<PAGE>
EXHIBIT "D"
-----------
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
2.5.3.3 Trailing edge support structure
2.6 Engine pylons
3. FUSELAGE
--------
3.1 Fuselage Structure
------------------
3.1.1 Fore and aft bulkheads
3.1.2 Pressurized floors and bulkheads surrounding/including the main
and nose gear wheel well and center wing box
3.1.3 Skins with doublers, stringers/longitudinal 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 Escape hatches
3.1.6 Passenger and cargo doors internal structure and fixed attachment
3.1.7 Sills excluding scuff plates and upper beams surrounding passenger
and cargo door apertures
3.1.8 Cockpit floor structure and passenger cabin floor beams excluding
floor panels and seat rails
3.1.9 Keel beam structure
<PAGE>
EXHIBIT "D"
-----------
3.2 Fittings
--------
3.2.1 Landing gear attachment fittings
3.2.2 Support structure and attachment fittings for the vertical and
horizontal stabilizers
4. STABILIZERS
-----------
4.1 Horizontal Stabilizer Main Structural Box
-----------------------------------------
4.1.1 Spars, chords, webs and stiffeners
4.1.2 Ribs
4.1.3 Upper and lower skins and stringers
4.1.4 Attachment fittings to fuselage and trim screw actuator
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, chords, webs and stiffeners
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
<PAGE>
EXHIBIT "D"
-----------
5. 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.
<PAGE>
EXHIBIT "E"
----------
CERTIFICATE OF ACCEPTANCE
-------------------------
In accordance with the terms of that certain Airbus A319/A320/A321 Purchase
Agreement (the "Purchase Agreement") dated as of ____________, 19___ between
AVSA, S.A.R.L. ("AVSA") and US Airways Group, Inc. (the "Buyer"), the acceptance
inspection relating to the AIRBUS [A319] [A320] [A321] aircraft (the
"Aircraft"), manufacturer's serial no. _____, FAA Registration No.: ________,
with ____ (__) ______________ series propulsion systems installed thereon,
serial nos. ___________ (position #1), and __________ (position #2) has taken
place at [Toulouse, France,] [Hamburg, Germany,] on the ________ day of
- ---------, ---- .
In view of said inspection having been carried out with satisfactory results,
the Buyer hereby accepts delivery of the Aircraft as being in conformity with
the provisions of the Purchase Agreement.
This acceptance will not impair the rights of the Buyer that derive from the
warranties and patent indemnities relating to the Aircraft set forth in the
Purchase Agreement.
The Buyer 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
US Airways Group, Inc.
By:
-----------------------------------
Title:
-----------------------------------
<PAGE>
EXHIBIT "F"
-----------
TECHNICAL PUBLICATIONS
----------------------
GENERAL
-------
This Exhibit F 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.
The Technical Publications are published in accordance with ATA
Specification 100 revision 23, with the exception of certain
Component Maintenance Manuals, which may be written to an ATA
Specification 100 revision other than revision 23.
The designation "C" after the title of a Technical Publication
indicates that such Technical Publication may be customized.
<PAGE>
EXHIBIT "F"
-----------
1. ENGINEERING DOCUMENTS
---------------------
1.1 Installation and Assembly Drawings (IAD)--C
-------------------------------------------
The IAD will be delivered according to the Buyer's standard for
the major Assembly and Installation drawings, including detail
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. The SM will include US
standards/equivalents for all hardware clamps, O-rings, bearings,
fasteners, sealants, adhesive and compounds, raw materials,
processes and procedures.
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 2.21 below.
*Aircraft Maintenance Manual Chapter 05 Time Limits
(Service Life Limits) and Maintenance Checks are only
delivered in hard copies.
<PAGE>
EXHIBIT "F"
-----------
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.
2.5 Aircraft Wiring Lists (AWL)--C
------------------------------
The AWL is part of the Wiring Manual. Supplied as a separate
document for lists. The AWL includes wire terminations, connector,
terminal, strip locations, wire routings, and clamping diagrams.
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 identifies and illustrates all line replaceable parts and
units of the aircraft, excluding the power plant parts.
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.
<PAGE>
EXHIBIT "F"
-----------
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.
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 Time Limits and Maintenance Checks/Service Limits and
-----------------------------------------------------
Maintenance Checks (TLMC\SLMC)
------------------------------
The TLMC\SLMC document provides the Manufacturer's recommended
scheduled time limits for inspections and maintenance checks.
2.17 Tool\Equipment Drawings (TED)
-----------------------------
TED's will be supplied in the form of aperture cards for the
Seller and, when available, Vendor maintenance tools.
2.18 Tool and Equipment Drawing Index (TEI)
--------------------------------------
<PAGE>
EXHIBIT "F"
-----------
The TEI is an alpha-numeric listing of the TED's.
2.19 Tool and Equipment Bulletin (TEB)
---------------------------------
The TEB provides advance information related to tools and test
equipment development.
2.20 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.
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)
----------------------
<PAGE>
EXHIBIT "F"
----------
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.
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.
<PAGE>
EXHIBIT "F"
-----------
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\Quick Reference Handbook (CL\QRH)--C
------------------------------------------------------------------
The CL is an extract from the FCOM presented as a booklet for
quick in-flight use.
4.2 FAA Approved Flight Manual (FM)--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).
4.3 Flight Crew Operating Manual (FCOM)--C
--------------------------------------
The FCOM provides Aircraft and systems descriptions, normal,
abnormal and emergency procedures as well as operational
performance.
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).
<PAGE>
EXHIBIT "F"
-----------
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 F.
The Low Speed Performance programs consist of the Takeoff 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).
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 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.
5.2 Component Documentation Status (CDS)--C
---------------------------------------
<PAGE>
EXHIBIT "F"
-----------
The CDS lists Component Maintenance Manuals in accordance with
Subparagraphs 5.4 and 5.5 below.
5.3 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.
5.4 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 will to ensure that each Vendor of repairable
components will deliver to the Buyer a Component Maintenance
Manual Vendor with revision service.
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 and will
include substantial structural analysis.
<PAGE>
EXHIBIT "F"
-----------
FORM
----
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 will 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.
+ Denotes a combined A319/A320/A321 Technical Publication.
* Denotes Technical Publications will be supplied in SGML format if such
format becomes available from the Manufacturer.
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
<PAGE>
revision service.
EXHIBIT "F"
-----------
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.
MANUALS AVAILABLE (headlines)
- -----------------------------
1 - ENGINEERING DOCUMENTS 2 - MAINTENANCE & ASSOCIATED MANUALS 3 - MISCELLANEOUS
PUBLICATIONS 4 - OPERATIONAL MANUALS AND DATA 5 - OVERHAUL DATA 6 - STRUCTURAL
MANUALS
<PAGE>
EXHIBIT "F"
-----------
<TABLE>
- ---------------------------------------------------------------------------------------------------------
1. ENGINEERING DOCUMENTS
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
+ Installation and Assembly IAD AC C *** AN/1/ 0
* Drawings (including detail
drawings)
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
+ Parts Usage (Effectivity) PU P2 E *** AN 0
MT E *** AN 0
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
+ Schedule (Drawing S P2 E *** AN 0
* Nomenclature)
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
+ Drawing Number Index DNI P2 C *** AN 0
*
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
+ Process and Material PMS F E *** AN 0
* Specification SMF E *** AN 0
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
+ Standards Manual SM F E *** AN 0
SMF E *** AN 0
- ---------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------
+ Electrical Load Analysis ELA P2 E *** AN 0
*
- ---------------------------------------------------------------------------------------------------------
2. MAINTENANCE & ASSOCIATED MANUALS
- ---------------------------------------------------------------------------------------------------------
</TABLE>
/1/Revision service for the manufacture drawings is restricted to cover the
Aircraft configuration at delivery.
<PAGE>
EXHIBIT "F"
-----------
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
MANUALS AVAILABLE Abbr Form Type Qty Rev Deliv.
(detailed) ---- ---- ---- --- --- ------
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ---------------------------------------------------------------------------------------------------------------------------------
+ APU Build-up Manual ABM MT E *** AN 90
F E *** AN 90
SMF E *** AN 90
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
+ Aircraft Maintenance Manual AMM F C *** 4 90
SMF C *** 4 90
MP C *** 4 90
P2 C *** 4 90
MT C *** 4 90
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
+ Aircraft Schematics Manual ASM SMF C *** 4 90
MT C *** 4 90
F C *** 4 90
MP C *** 4 90
P1 C *** 4 90
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
+ Aircraft Wiring Manual AWM F1 C *** 4 90
P1 C *** 4 90
MP C *** 4 90
MT C *** 4 90
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
+ Aircraft Wiring Lists AWL P2 C *** 4 90
MT C *** 4 90
(text)
F C *** 4 90
SMF C *** 4 90
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT "F"
-----------
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
MANUALS AVAILABLE Abbr Form Type Qty Rev Deliv.
(detailed) ---- ---- ---- --- --- ------
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
+ Consumable Material List CML P2 E *** AN 90
* F E *** AN 90
SMF E *** AN 90
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Component Location Manual CLM P *** 4 90
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Duct Repair Manual DRM P2 E *** AN 90
SMF E *** AN 90
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Fuel Pipe Repair Manual FPRM P2 E *** AN 90
SMF E *** AN 90
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Illustrated Parts Catalog IPC MT C *** 4 90
(Airframe) F C *** 4 90
SMF C *** 4 90
MP C *** 4 90
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Illustrated Parts Catalog PIPC MT C *** 4 90
(Power Plant)/5/ MP C *** 4 90
F C *** 4 90
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Illustrated Tool and Equipment TEM P2 E *** AN 360
* Manual
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
/5/ Supplied by the Propulsion Systems Manufacturer
154
<PAGE>
EXHIBIT "F"
-----------
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
MANUALS AVAILABLE Abbr Form Type Qty Rev Deliv.
(detailed) ---- ---- ---- --- --- ------
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
+ Maintenance Facility Planning MFP P2 E *** AN 90
*
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Maintenance Planning MPD P2 E *** AN 360
* Document
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Power Plant Build-up PPBM MT E *** AN 90
Manual /5/ P2 E *** AN 90
F E *** AN 90
SMF E *** AN 90
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Support Equipment Summary SES P2 E *** AN 360
* F E *** AN 360
SMF E *** AN 360
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Time Limits and Maintenance TLMC/ P2 C *** 4 90
Checks/Service Limits SLMC
and Maintenance Checks
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Tool and Equipment Drawings TED MT E *** AN 360
AC E *** AN 360
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Tool and Equipment TEI P2 E *** AN 360
* Drawing Index
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
/5/ Supplied by the Propulsion Systems Manufacturer
155
<PAGE>
EXHIBIT "F"
-----------
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
MANUALS AVAILABLE Abbr Form Type Qty Rev Deliv.
(detailed) ---- ---- ---- --- --- ------
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
+ Trouble Shooting TSM F C *** 4 90
Manual SMF C *** 4
P2 C *** 4
MT C *** 4
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Aircraft Documentation ADRES CD C *** 4 90
* Retrieval System
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Computer Assisted Aircraft CAATS CD C *** 4 90
* Troubleshooting
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Time Limits and TLMC P2 c *** 4 90
Maintenance Checks
- -----------------------------------------------------------------------------------------------------------------------------------
3. MISCELLANEOUS PUBLICATIONS
- -----------------------------------------------------------------------------------------------------------------------------------
+ Airplane AC P2 E *** AN 360
* Characteristics for
Airport Planning
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Aircraft Recovery Manual ARM P2 E *** AN 90
* F E *** AN 90
SMF E *** AN 90
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
Crash Crew Chart CCC P1 E *** AN 180
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT "F"
-----------
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
MANUALS AVAILABLE Abbr Form Type Qty Rev Deliv.
(detailed) ---- ---- ---- --- --- ------
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
+ Guidelines for GCOC P2 E *** AN 0
Customer Originated
Changes
- ----------------------------------------------------------------------------------------------------------------------------------
- ----------------------------------------------------------------------------------------------------------------------------------
+ List of Radioactive LRE P2 E *** AN 90
and Hazardous Elements
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ List of Applicable LAP P2 C *** 4 90
Publications
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Livestock LTM P2 E *** AN 90
Transportation Manual
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Service Bulletins SB P2 C *** AN 0
* SMF C *** AN 0
F C *** AN 0
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Service Bulletin SBI P1 E *** AN 90
* Index
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Service Information SIL P2 E *** AN 0
* Letters
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Technical Publications TPCI CD C *** AN 90
* Combined Index
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Transportability TM P2 E *** AN 90
Manual SMF E *** AN
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT "F"
-----------
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
MANUALS AVAILABLE Abbr Form Type Qty Rev Deliv.
(detailed) ---- ---- ---- --- --- ------
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Supplier Product SPSA P2 E *** AN 360
Support Agreements (SPSA)
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
* Vendor Information Manual VIM D E *** AN 360
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Vendor Information VIM\ P2 E *** AN 360
* Manual GSE GSE
- -----------------------------------------------------------------------------------------------------------------------------------
4. OPERATIONAL MANUALS AND DATA
- -----------------------------------------------------------------------------------------------------------------------------------
+ Check CL/QRH P2 C *** AN 90
List/Abnormal/Emergency/
Quick Reference
Handbook
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ FAA Approved Flight AFM P1 C *** AN 0
Manual
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Flight Crew Operating FCOM P2 C *** AN 90
Manual
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Master Minimum MMEL P2 E *** AN 90
Equipment List
- -----------------------------------------------------------------------------------------------------------------------------------
+ Performance PEP D E *** AN 90
Engineering Program
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
EXHIBIT "F"
-----------
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
MANUALS AVAILABLE Abbr Form Type Qty Rev Deliv.
(detailed) ---- ---- ---- --- --- ------
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
+ Performance Program PPM P2 E *** AN 90
* Manual MT E *** AN 90
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Weight and Balance WBM P1 C *** AN 0
Manual
- -----------------------------------------------------------------------------------------------------------------------------------
5. OVERHAUL DATA
- -----------------------------------------------------------------------------------------------------------------------------------
+ Cable Fabrication Manual CFM P2 E *** AN 90
*
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Component CDS P2 C *** AN 180
* Documentation Status F C *** AN 180
SMF C *** AN 180
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Component Evolution CEL F E *** AN 180
List/6/ SMF E *** AN 1
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Component Maintenance CMMM F E *** AN 180
* Manual Airframe SMF E *** AN 180
Manufacturer
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Component Maintenance CMMV P2 E *** AN 180
* Manual Vendor
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
/6/ Optional - Delivered as follow-on for CDS.
<PAGE>
EXHIBIT "F"
-----------
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
MANUALS AVAILABLE Abbr Form Type Qty Rev Deliv.
(detailed) ---- ---- ---- --- --- ------
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
6. STRUCTURAL MANUALS
- -----------------------------------------------------------------------------------------------------------------------------------
+ Nondestructive NTM P2 E *** 4 90
* Testing Manual
- -----------------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------------
+ Structural Repair SRM F E *** 4 90
* Manual SMF E *** 4 0
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
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 during the
term of this license agreement (the "License Agreement").
Use of the PEP in readable form will be limited to one (1) copy. However,
the Seller may make duplicate copies, provided that they are either
contained in the same computer as the original copy, or produced for
checkpoint and restart purposes or made with the consent of the Seller for
a specific need.
2. MERGER
------
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 will 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, nontransferable and
nonexclusive.
4. INSTALLATION
------------
It is the Buyer's responsibility to install the PEP and to perform any
mergings and checks. The Seller will, 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.
5. PROPRIETARY RIGHTS AND NONDISCLOSURE
------------------------------------
5.1 The PEP and the copyright and other proprietary rights of whatever nature
in the PEP are and will 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 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
-----------------
<PAGE>
6.1 The Seller does not warrant that the PEP will contain no errors. However,
should the PEP be found to contain any error at delivery, the Buyer will
notify the Seller promptly thereof and the Seller will take all proper
steps to correct the same at its own expense.
6.2 The Buyer will 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 will undertake to use the PEP in accordance with the PPM.
6.4 The PEP is supplied under the express condition that the Seller will 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 will be granted to the Buyer for as
long as the Buyer operates an Aircraft to which the PEP refers.
<PAGE>
EXHIBIT "G"
-----------
AIRFRAME PRICE REVISION FORMULA
-------------------------------
l. BASE PRICE
----------
The Base Price of the Airframe is as quoted in Subclause 4.1.1.1,
4.1.1.2 or 4.1.1.3 of the Agreement, as applicable.
The Base Price of a set of two (2) nacelles and two (2) thrust
reversers is as quoted in Subclause 4.1.2.1.1(ii), 4.1.2.2.1(ii), or
4.1.2.3.1(ii) of the Agreement, as applicable.
2. BASE PERIOD
-----------
***
These Base Prices are subject to adjustment for changes in economic
conditions as measured by data obtained from the United States
Department of Labor, Bureau of Labor Statistics, and in accordance with
the provisions of Paragraphs 4 and 5 of this Exhibit "G."
ECIb and ICb index values indicated in Paragraph 4 of this Exhibit "G"
are based on publications available at the date of signature of the
Agreement and are United States Department of Labor Bureau of Labor
Statistics computations corresponding to certain base years as
stipulated below in Paragraph 3. Should the Bureau of Labor Statistics
change such base year, it will be necessary to restate such values in
an appropriate manner. Other changes (such as benchmark revision),
except those related to established errors from the Bureau of Labor
Statistics, will not be taken into consideration.
3. REFERENCE INDEXES
-----------------
***
Material Index: "Industrial Commodities Index" (hereinafter
--------------
referred to as "ICI-Index"), published monthly by the United
States Department of Labor, Bureau of Labor Statistics, in
"Producer Prices and Price Indexes" (Table 6: "Producer prices
<PAGE>
EXHIBIT "G"
-----------
and price indexes for commodity groupings and individual items"). (Base
year 1982 = 100.)
4 - REVISION FORMULA
----------------
***
In determining the Revised Base Price at delivery of the Aircraft, each
quotient 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. The final factor will
be rounded to the nearest ten thousandth (4 decimals).
After final computation, Pn will 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 United States Department of Labor substantially
revises its methodology for calculating any of the
indexes referred to hereabove, or
<PAGE>
EXHIBIT "G"
-----------
(ii) the United States Department of Labor discontinues, either
temporarily or permanently, any of the indexes referred to
hereabove and publication thereof, or
(iii) the data samples used to calculate any of the indexes referred
to hereabove are substantially changed,
The Seller and the Buyer will agree on a substitute index.
Such substitute index will reflect as closely as possible the actual
variations in wage rates or in material prices, 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 and the
Buyer will agree on appropriate adjustments to be made to the price
revision formula; such adjustments may include, but will not be limited
to, allowing to combine the successive utilization of the original
index and of the substitute index, and other methodologies designed to
ensure consistency in the numerators and denominators of the various
quotients.
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, to the
applicable indexes as published at the date of Aircraft delivery.
<PAGE>
EXHIBIT "H-1"
CFM INTERNATIONAL PRICE REVISION FORMULA FOR A319 AIRCRAFT
----------------------------------------------------------
l. REFERENCE PRICE
---------------
The Reference Price of a set of two (2) CFM International CFM 56-5B-6/P
engines and additional equipment is as quoted in Subclause 4.1.2.1.1(i)
of the Agreement.
This Reference Price is valid for Aircraft delivered no later than
December 31, 1999, and is subject to adjustment for changes in economic
conditions as measured by data obtained from the United States
Department of Labor, Bureau of Labor Statistics, and in accordance with
the provisions of Paragraphs 4 and 5 of this Exhibit "H-1."
2. REFERENCE PERIOD - REFERENCE COMPOSITE PRICE INDEX
--------------------------------------------------
The above Reference Price has been established in accordance with the
economic conditions prevailing in September 1990 (March 1991
theoretical delivery conditions), as defined, according to CFM
International, by the Reference Composite Price Index of 126.54.
3. REFERENCE 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 United States 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).
Material Index (I): "Industrial Commodities" (hereinafter
------------------
referred to as "IC-Index"), published by the United States Department
of Labor, Bureau of Labor Statistics, in "Producer Prices and Price
Indexes" (Table 6: Producer prices and price indexes for commodity
groupings and individual items). (Base year 1982 = 100.)
Material Index (II): "Metals and Metal Products" Code l0 (hereinafter
-------------------
referred to as "MMP-Index"), published by the United States Department
of Labor, Bureau of Labor Statistics, in "Producer Prices and Price
Indexes" (Table 6: Producer prices and price indexes for commodity
groupings and individual items). (Base year 1982 = 100.)
<PAGE>
EXHIBIT "H-1"
-------------
Energy Index: "Fuels and Related Products and Power" Code 5
------------
(hereinafter referred to as "EP-Index"), published by the United States
Department of Labor, Bureau of Labor Statistics, in "Producer Prices
and Price Indexes" (Table 6: Producer prices and price indexes for
commodity groupings and individual items). (Base year 1982 = 100.)
4. REVISION FORMULA
----------------
Pn = Pb x CPIn
----
126.54
Where
Pn = Revised Reference Price of a set of two (2) engines
at delivery of the Aircraft.
Pb = Reference Price as defined above.
CPIn = Composite Price Index for the sixth month prior to
the month of delivery of the Aircraft.
Said Composite Price Index is composed as follows:
CPIn = 0.55 (HEn x 100) + 0.10 ICn + 0.25 MMPn + 0.10 EPn
---
(11.16 )
Where
HEn = HE SIC 3724 for the sixth month prior to the month
of delivery of the Aircraft; the quotient HEn/11.16
is rounded to the nearest third decimal place. The
product by 0.55 is rounded to the nearest second
decimal place.
ICn = IC-Index for the sixth month prior to the month of
delivery of the Aircraft.
MMPn = MMP-Index for the sixth month prior to the month of
delivery of the Aircraft. The product by 0.25 is
rounded to the nearest second decimal place.
<PAGE>
EXHIBIT "H-1"
-------------
EPn = EP-Index for the sixth month prior to the month of
delivery of the Aircraft.
The Composite Price Index will be determined to the second decimal
place. If the next succeeding decimal place is five (5) or more, the
preceding decimal figure will be raised to the next higher figure.
The final factor will be rounded to the nearest thousandth (3
decimals).
5. GENERAL PROVISIONS
------------------
5.1 The Revised 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 Reference Price will be computed.
5.3 If the United States Department of Labor substantially revises
the methodology of calculation of the indexes referred to in
this Exhibit "H-1" or discontinues any of these indexes, the
Seller will, in agreement with CFM International, 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 United States Government, the 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 Reference Price
Indexes to the sixth month prior to the scheduled delivery of the
Aircraft.
5.5 The Revised Reference Price at delivery of the Aircraft in no event
will be less than the Reference Price defined in Paragraph 1 of this
Exhibit "H-1."
<PAGE>
EXHIBIT "H-2"
CFM INTERNATIONAL PRICE REVISION FORMULA FOR A320 AIRCRAFT
----------------------------------------------------------
l. REFERENCE PRICE
---------------
The Reference Price of a set of two (2) CFM International CFM 56-5B-4/P
engines and additional equipment is as quoted in Subclause 4.1.2.2.1(i)
of the Agreement.
This Reference Price is subject to adjustment for changes in economic
conditions as measured by data obtained from the United States
Department of Labor, Bureau of Labor Statistics, and in accordance with
the provisions of Paragraphs 4 and 5 of this Exhibit "H-2."
2. REFERENCE PERIOD - REFERENCE COMPOSITE PRICE INDEX
--------------------------------------------------
The above Reference Price has been established in accordance with the
economic conditions prevailing in October 1985 (April 1986 theoretical
delivery conditions), as defined, according to CFM International, by
the Reference Composite Price Index of 108.66.
3. REFERENCE 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 United States 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).
Material Index (I): "Industrial Commodities" (hereinafter
------------------
referred to as "IC-Index"), published by the United States Department
of Labor, Bureau of Labor Statistics, in "Producer Prices and Price
Indexes" (Table 6: Producer prices and price indexes for commodity
groupings and individual items). (Base year 1982 = 100.)
Material Index (II): "Metals and Metal Products" Code l0 (hereinafter
-------------------
referred to as "MMP-Index"), published by the United States Department
of Labor, Bureau of Labor Statistics, in "Producer Prices and Price
Indexes" (Table 6: Producer prices and price indexes for commodity
groupings and individual items). (Base year 1982 = 100.)
<PAGE>
EXHIBIT "H-2"
-------------
Energy Index: "Fuels and Related Products and Power" Code 5
------------
(hereinafter referred to as "EP-Index"), published by the United States
Department of Labor, Bureau of Labor Statistics, in "Producer Prices
and Price Indexes" (Table 6: Producer prices and price indexes for
commodity groupings and individual items). (Base year 1982 = 100.)
4. REVISION FORMULA
----------------
Pn = Pb x CPIn
----
108.66
Where
Pn = Revised Reference Price of a set of two (2) engines
at delivery of the Aircraft.
Pb = Reference Price as defined above.
CPIn = Composite Price Index for the sixth month prior to
the month of delivery of the Aircraft.
Said Composite Price Index is composed as follows:
CPIn = 0.55 (HEn x 100) + 0.10 ICn + 0.25 MMPn + 0.10 EPn
---
(11.16 )
Where
HEn = HE SIC 3724 for the sixth month prior to the month
of delivery of the Aircraft; the quotient HEn/11.16
is rounded to the nearest third decimal place. The
product by 0.55 is rounded to the nearest second
decimal place.
ICn = IC-Index for the sixth month prior to the month of
delivery of the Aircraft.
MMPn = MMP-Index for the sixth month prior to the month of
delivery of the Aircraft. The product by 0.25 is
rounded to the nearest second decimal place.
<PAGE>
EXHIBIT "H-2"
-------------
EPn = EP-Index for the sixth month prior to the month of
delivery of the Aircraft.
The Composite Price Index will be determined to the second decimal
place. If the next succeeding decimal place is five (5) or more, the
preceding decimal figure will be raised to the next higher figure.
The final factor will be rounded to the nearest thousandth (3
decimals).
5. GENERAL PROVISIONS
------------------
5.1 The Revised 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 Reference Price will be computed.
5.3 If the United States Department of Labor substantially revises
the methodology of calculation of the indexes referred to in
this Exhibit "H-2" or discontinues any of these indexes, the
Seller will, in agreement with CFM International, 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 United States Government, the 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 Reference Price
Indexes to the sixth month prior to the scheduled delivery of the
Aircraft.
5.5 The Revised Reference Price at delivery of the Aircraft in no event
will be less than the Reference Price defined in Paragraph 1 of this
Exhibit "H-2."
<PAGE>
EXHIBIT "H-3"
-------------
CFM INTERNATIONAL PRICE REVISION FORMULA FOR A321 AIRCRAFT
----------------------------------------------------------
l. REFERENCE PRICE
---------------
The Reference Price of a set of two (2) CFM International CFM 56-5B-3/P
engines and additional equipment is as quoted in Subclause 4.1.2.3.1(i)
of the Agreement.
This Reference Price is valid for Aircraft delivered no later than
December 31, 1999, and is subject to adjustment for changes in economic
conditions as measured by data obtained from the United States
Department of Labor, Bureau of Labor Statistics, and in accordance with
the provisions of Paragraphs 4 and 5 of this Exhibit "H-3."
2. REFERENCE PERIOD - REFERENCE COMPOSITE PRICE INDEX
--------------------------------------------------
The above Reference Price has been established in accordance with the
economic conditions prevailing in October 1987 (April 1988 theoretical
delivery conditions), as defined, according to CFM International, by
the Reference Composite Price Index of 111.82.
3. REFERENCE 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 United States 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).
Material Index (I): "Industrial Commodities" (hereinafter
------------------
referred to as "IC-Index"), published by the United States Department
of Labor, Bureau of Labor Statistics, in "Producer Prices and Price
Indexes" (Table 6: Producer prices and price indexes for commodity
groupings and individual items). (Base year 1982 = 100.)
Material Index (II): "Metals and Metal Products" Code l0 (hereinafter
-------------------
referred to as "MMP-Index"), published by the United States Department
of Labor, Bureau of Labor Statistics, in "Producer Prices and Price
Indexes" (Table 6: Producer prices and price indexes for commodity
groupings and individual items). (Base year 1982 = 100.)
<PAGE>
EXHIBIT "H-3"
-------------
Energy Index: "Fuels and Related Products and Power" Code 5
------------
(hereinafter referred to as "EP-Index"), published by the United States
Department of Labor, Bureau of Labor Statistics, in "Producer Prices
and Price Indexes" (Table 6: Producer prices and price indexes for
commodity groupings and individual items). (Base year 1982 = 100.)
4. REVISION FORMULA
----------------
Pn = Pb x CPIn
----
111.82
Where
Pn = Revised Reference Price of a set of two (2) engines
at delivery of the Aircraft.
Pb = Reference Price as defined above.
CPIn = Composite Price Index for the sixth month prior to
the month of delivery of the Aircraft.
Said Composite Price Index is composed as follows:
CPIn = 0.55 (HEn x 100) + 0.10 ICn + 0.25 MMPn + 0.10 EPn
---
(11.16 )
Where
HEn = HE SIC 3724 for the sixth month prior to the month
of delivery of the Aircraft; the quotient HEn/11.16
is rounded to the nearest third decimal place. The
product by 0.55 is rounded to the nearest second
decimal place.
Icn = IC-Index for the sixth month prior to the month of
delivery of the Aircraft.
MMPn = MMP-Index for the sixth month prior to the month of
delivery of the Aircraft. The product by 0.25 is
rounded to the nearest second decimal place.
EPn = EP-Index for the sixth month prior to the month of
delivery of the
<PAGE>
EXHIBIT "H-3"
-------------
Aircraft.
<PAGE>
EXHIBIT "H-3"
-------------
The Composite Price Index will be determined to the second decimal
place. If the next succeeding decimal place is five (5) or more, the
preceding decimal figure will be raised to the next higher figure.
The final factor will be rounded to the nearest thousandth (3
decimals).
5. GENERAL PROVISIONS
------------------
5.1 The Revised 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 Reference Price will be computed.
5.3 If the United States Department of Labor substantially revises the
methodology of calculation of the indexes referred to in this Exhibit
"H-3" or discontinues any of these indexes, the Seller will, in
agreement with CFM International, 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 United States Government, the 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 Reference Price
Indexes to the sixth month prior to the scheduled delivery of the
Aircraft.
5.5 The Revised Reference Price at delivery of the Aircraft in no event
will be less than the Reference Price defined in Paragraph 1 of this
Exhibit "H-3."
<PAGE>
LETTER AGREEMENT NO. 1
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: SPARE PARTS PROCUREMENT
-----------------------
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A319/A320/A321 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 said Agreement. 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 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 said Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this Letter
Agreement will be governed by the provisions of said 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>
CONTENTS
--------
CLAUSES
1 - GENERAL
2 - INITIAL PROVISIONING
3 - STORES
4 - DELIVERY
5 - PRICE
6 - PAYMENT PROCEDURES AND CONDITIONS
7 - TITLE
8 - PACKAGING
9 - DATA RETRIEVAL
10 - BUY-BACK
11 - WARRANTIES
12 - LEASING
13 - ***
14 - TERMINATION
15 - ASSIGNMENT
<PAGE>
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 and other
equipment itemized below in Subparagraphs 1.1(a) through
1.1(f) ("Material") and is intended by the parties to be and
will constitute an agreement of sale of all Material furnished
to the Buyer by the Seller pursuant hereto, except as to
Material leased to the Buyer pursuant to Clause 12 of this
Letter Agreement.
The Material will comprise:
(a) Seller Parts
(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.
It is expressly understood that Seller Parts will not include
parts manufactured pursuant to a Parts Manufacturing
Authority.
1.2 Scope of Material Support
-------------------------
1.2.1 The Material Support to be provided by the Seller under the
conditions hereunder covers the following:
(a) all Material purchased by the Buyer from the Seller
during the Initial Provisioning Period (defined below
in Paragraph 2) (the "Initial Provisioning") and all
items in Subparagraphs 1.1(a) through 1.1(d) for
purchases additional to the Initial Provisioning
Period, and
(b) the Seller's leasing of Seller Parts to the Buyer for
the Buyer's use on its Aircraft in air transport
service as set forth in Paragraph 12 of this Letter
Agreement.
<PAGE>
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 relevant Propulsion Systems manufacturer(s).
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 Seller
Parts as the Seller deems reasonable (upon consultation
with the Buyer) and will furnish Seller Parts adequate to
meet the Buyer's needs for repairs and replacements on the
Aircraft. Such Seller Parts will be priced, 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 best 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 Purchase Source of Seller Parts
-------------------------------
The Buyer agrees to purchase from the Seller's designee ASC
the Seller Parts required for the Buyer's own needs during the
Term, provided that this Paragraph 1.3 will not in any way
prevent the Buyer from resorting to the stocks of Seller Parts
of other airlines operating aircraft of the type of the
Aircraft or from purchasing items equivalent to Seller Parts
from said airlines, distributors or dealers, on the condition
that said Seller Parts have been designed and manufactured by,
or obtained from, the Seller, and provided also that this
Paragraph 1.3 will not prevent the Buyer from exercising its
rights under Subparagraph 1.4 of this Letter Agreement.
1.4 Manufacture of Seller Parts *** by the Buyer
-----------------------------------------------------
1.4.1 The provisions of Subparagraph 1.3 of this Letter Agreement
notwithstanding, the Buyer may manufacture or have
manufactured for its own use or may purchase from any other
source whatsoever 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 delivered under
the Agreement and are not available from the Seller
within a lead time shorter than or equal to the time
in which the Buyer can provide said Seller Parts,
provided the Buyer will sell or lease
<PAGE>
such Seller Parts only if
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;
(d) when, with respect to certain Seller Parts, the
Seller has granted, under the Illustrated Parts
Catalog supplied in accordance with this Letter
Agreement, the right of local manufacture of Seller
Parts, and
(e) ***
1.4.2 ***
1.4.3 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.
1.4.4 The Seller will provide the Buyer with all technical data
reasonably necessary to manufacture Seller Parts *** , in the
event the Buyer is entitled to do so pursuant to Subparagraphs
1.4.1 and 1.4.2 of this Letter Agreement. The proprietary
rights to such technical data will be subject to the terms of
Subclause 14.10.1 of the Agreement.
1.5 ***
---------------------
***
<PAGE>
1.6 Language
--------
1.6.1 Words and expressions used in this Letter Agreement will have
the same meanings as they do in the rest of the Agreement,
unless otherwise stated in this Letter Agreement.
1.6.2 Technical and trade items used but not defined herein or in
the Agreement 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.
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 1 of ATA 2000 for the Aircraft
("Initial Provisioning Data") in a form, format and within a
time period to be mutually agreed upon.
A revision service will be provided free of charge and will be
effected every ninety (90) days or more frequently if
reasonably requested by the Buyer, 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.
2.1.3 Initial Provisioning Data for Reconfirmable Aircraft
----------------------------------------------------
2.1.3.1 All Reconfirmable Aircraft and Additional Aircraft which are
acquired by the Buyer (the "Reconfirmed Aircraft") pursuant to
the terms and conditions of Letter Agreement No. 2 to the
Agreement will be included in the revision to the provisioning
data that is issued after reconfirmation of a Reconfirmable
Aircraft
<PAGE>
or the Buyer's exercise of its option to purchase an
Additional Aircraft, if such revision is not scheduled to be
issued within four (4) weeks from the date of reconfirmation
or of the date of exercise of such option. If the date of
reconfirmation or the date of the exercise of the option does
not allow the Seller four (4) weeks' preparation time, the
Aircraft concerned will be included in the next scheduled
revision.
2.1.3.2 The Seller will, from the date of reconfirmation of an
Aircraft until three (3) months after delivery of such
Aircraft, submit to the Buyer details of particular Vendor
components being installed on the Aircraft and will recommend
the quantity to order. A list of such Vendor components will
be supplied at the time of the provisioning data revision as
specified above.
2.1.3.3 The Seller will deliver to the Buyer T-files for particular
Vendor components, as applicable, in time to allow the Buyer's
planning of repair and overhaul tasks.
2.1.3.4 At delivery of each Reconfirmed Aircraft, the data with
respect to Material will at least cover such Aircraft's
technical configuration as known six (6) months before
Aircraft delivery and will be updated to reflect the final
build status of such Aircraft. Such update will be included in
the data revisions issued three (3) months after delivery of
such Aircraft.
2.2 Vendor-Supplied Data
--------------------
2.2.1 General
-------
Vendors will prepare and issue T-files in the English language
for those Vendor components for which the Buyer has elected to
receive data.
Said 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. The Seller will use its best efforts
to ensure that such data will be adequate to enable the Buyer
to undertake in-house repair and/or overhaul of such
components.
In any event, the Seller will exert its best efforts to supply
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 1 of ATA 2000 for the Aircraft will be furnished as
mutually agreed upon during a Preprovisioning Meeting (defined
below), with free-of-charge revision service assured up to the
end of the Initial Provisioning Period, or until it reflects
the configuration of the delivered Aircraft.
<PAGE>
2.3 Preprovisioning Meeting
-----------------------
2.3.1 The Seller will organize a meeting at its Material Support
Center in Hamburg, Germany ("MSC"), 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.
2.4 Initial Provisioning Training
-----------------------------
The Seller will furnish, at the Buyer's request and at no
charge, training courses related to the Seller's provisioning
documents, purchase order administration and handling at MSC.
2.5 Initial Provisioning Conference
-------------------------------
The Seller will organize an Initial Provisioning conference at
MSC that will include Vendor participation, as agreed upon
during the Preprovisioning Meeting (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 configuration of the
Aircraft to which such data relate, as known three (3) months
before the data are issued. Said data will 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 configuration standard of the affected
Aircraft 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 make reasonable efforts to minimize such cost, in
particular by using its own airfreight system for
transportation *** at no charge to the Seller, *** The
Seller, in addition, will use its best efforts to cause
Vendors to provide a similar service for their items.
<PAGE>
2.7 Delivery of Initial Provisioning Material
-----------------------------------------
2.7.1 To support the operation of the Aircraft, the Seller will use
its best efforts to deliver Initial Provisioning Material in
Subparagraph 1.1(a) of this Letter Agreement against the
Buyer's orders from the Seller and according to the following
schedule, provided the orders are received by the Seller in
accordance with published lead time:
Each block of Aircraft referred to in the schedule below will
be defined in the Initial Provisioning Conference.
(a) At least fifty percent (50%) of the ordered quantity
of each Line Replacement or Line Maintenance item
three (3) months before delivery of the first
Aircraft of each block of Aircraft for which the
Buyer has placed Initial Provisioning orders for
Material defined above in Subparagraph 1.1(a).
(b) At least seventy-five percent (75%) of the ordered
quantity of each Line Replacement or Line Maintenance
item one (1) month (for items identified as line
station items, two (2) months) before delivery of the
first Aircraft of each block of Aircraft for which
the Buyer has placed Initial Provisioning orders for
Material defined above in Subparagraph 1.1(a).
(c) Fifty percent (50%) of the ordered quantity of each
item except as specified in Subparagraphs 2.7.1 (a)
and 2.7.1 (b) above at delivery of the first Aircraft
of each block of Aircraft for which the Buyer has
placed Initial Provisioning orders for Material
defined above in Subparagraph 1.1(a).
(d) One hundred percent (100%) of the ordered quantity of
each item, including line station items, three (3)
months after delivery of the first Aircraft of each
block of Aircraft for which the Buyer has placed
Initial Provisioning orders for Material, as defined
above in Subparagraph 1.1(a). If said one hundred
percent (100%) cannot be accomplished, the Seller
will have such items available at its facilities for
immediate supply, in case of an AOG.
2.7.2 In the event that less than eighty-five percent (85%) of the
Buyer's orders of Initial Provisioning Material defined above
in Subparagraph 1.1(a), supporting each block of Aircraft (the
"IP Block"), is delivered by the Seller to the Buyer in
accordance with the provisions set forth above in Subparagraph
2.7.1(d) for reasons other than Excusable Delay as defined in
Clause 10 of the Agreement, then the Seller will provide the
Buyer with a credit equal to (i) eighty-five percent (85%)
minus the actual percentage of the IP Block delivered, up to a
maximum
<PAGE>
of ten percent (10%), multiplied by (ii) the aggregate value of the
undelivered portion of the IP Block ordered by the Buyer from the
Seller in accordance with all published lead times. Subparagraph 4.4
of this Letter Agreement will apply to the Seller's undertakings under
this Subparagraph 2.7.2.
Such credit will be made available by the Seller to the Buyer upon
mutual agreement of the computation.
2.7.3 The Buyer may, subject to the Seller's agreement, cancel or modify
Initial Provisioning orders placed with the Seller with no
cancellation charge as follows:
(a) "Long Lead-Time Material" (lead time exceeding twelve (12)
months) not later than six (6) months before scheduled delivery
of said Material,
(b) normal lead time Material not later than three (3) months before
scheduled delivery of said Material,
(c) Buyer-specific Material and Material in Subparagraphs 1.1(b)
through 1.1(f) no later than the quoted lead time before
scheduled delivery of said Material.
2.7.4 Should the Buyer cancel or modify any orders for Material outside the
time limits defined above in Subparagraph 2.7.3, the Seller will have
no liability for the cancellation or modification, and the Buyer will
reimburse the Seller for any direct cost incurred in connection
therewith to the extent that such cost has been properly documented by
the Seller to the satisfaction of the Buyer.
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 (the "US Term"), a US store 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. ASCO Spares
Center will maintain a stock of Seller Parts, including Leased Parts
listed in Appendix A to this Letter Agreement. In the event of the
recurrence of the nonavailability to the Buyer of a part from the ASCO
Spares Center, the Seller will take all necessary steps to ensure
availability thereof at the ASCO Spares Center at the Buyer's next
request. In the event that the Buyer is still operating one or more
Aircraft at the end of the Term, the Seller will use its best efforts
to ensure the Buyer's access to Seller
<PAGE>
Parts.
3.2 Material Support Center, Germany
--------------------------------
The Manufacturer has set up and will maintain or cause to be
maintained during the Term a store of Seller Parts at 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 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 Specification 2000.
The provisions of this Paragraph 4 do not apply to Initial
Provisioning Data and Material.
4.2 Lead Times
----------
4.2.1 In general, the lead times are (and, unless otherwise agreed, will at
all times be) in accordance with the definition in the "World Airline
and Suppliers Guide" (1994 edition).
4.2.2 Material will be dispatched within the lead times quoted in the
published Seller's price catalog for Material described in
Subparagraph 1.1(a), and within the Vendor's or supplier's lead time
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). The Seller will
endeavor to improve its lead times and neither the Seller, the
Manufacturer nor any of their Affiliates will discriminate against the
Buyer in delivery processing time.
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- lead-time items, to the international airport nearest the
location of such items (the "Expedite Service").
<PAGE>
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) seven (7) days after receipt of an expedite order from the Buyer.
The Seller and its subcontractors will deliver Seller Parts requested
on 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 order for such
Seller Parts within a reasonable time.
4.3 Delivery Status
---------------
The Seller agrees to report to the Buyer the status of supplies
against orders on a monthly basis.
4.4 Excusable Delay
---------------
Subclause 10.1 of the Agreement will apply to the Material Support as
defined in Paragraph 1 of this Letter Agreement.
4.5 Shortages, Overshipments, Nonconformance in Orders
--------------------------------------------------
4.5.1 Within thirty (30) days after receipt of Material delivered pursuant
to a purchase order, the Buyer will use all best efforts to 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 unless the Buyer
can prove within a reasonable period of time that it did not receive
the Material.
4.5.2 In the event that the Buyer reports overshipments or nonconformance to
the specifications within the period defined above in Subparagraph
4.5.1, the Seller will, if accepted, 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 endeaveor to minimize such costs, particularly by using
its own airfreight system on a space-available basis for
transportation at no charge to the Seller.
<PAGE>
4.6 Delivery Performance of Material
--------------------------------
The Seller hereby agrees to participate in a Material delivery
performance incentive.
Based upon the Material delivery performance criteria for response
under Expedite Service as set forth in Subparagraph 4.2.3 and for
routine orders in accordance with the Seller's published lead times,
and provided all above shipments *** (the "Delivery Criteria"), the
Seller commits to an overall delivery performance of eighty-five
percent (85%) on an annual basis. In the event that the Seller's
performance falls below the eighty-five percent (85%) level, the
Seller will provide the Buyer with a credit equal to (i) eighty-five
(85%) minus the actual percentage of orders delivered on time, up to a
maximum of ten percent (10%), multiplied by (ii) the aggregate value
of the orders delivered late according to the Delivery Criteria set
forth above. Subparagraph 4.4 above will apply to the Seller's
undertakings under this Subparagraph 4.6.
At the end of each year following delivery of the first Aircraft, the
Seller will compute the above-described figures in order to determine
a credit or debit for the account of the Buyer.
In the event the Seller records a credit for the account of the Buyer,
the Seller will make available to the Buyer a credit memorandum in the
amount described in this Subparagraph 4.6 for the purchase of Material
from the Seller.
4.7 Exclusivity of Remedy
---------------------
The remedies provided to the Buyer under Subparagraphs 2.7.2 and 4.6
above are mutually exclusive and not cumulative.
4.8 Cessation of Deliveries
-----------------------
The Seller reserves the right to stop or otherwise suspend deliveries
of Material if the Buyer fails to meet its obligations under
Paragraphs 6 and 7 of this Letter Agreement.
5. PRICE
-----
5.1 Point of Shipment
-----------------
***
5.2 Validity of Prices
------------------
5.2.1 The prices are the Seller's published prices in effect on the date of
receipt of the order (subject to reasonable quantities and delivery
time) and will be expressed in US dollars. Payment will be made by the
Buyer to the Seller in US dollars as set
<PAGE>
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
manifest error in estimation or expression of any price.
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 said 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 ***
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.
<PAGE>
6. PAYMENT PROCEDURES AND CONDITIONS
---------------------------------
6.1 Currency
--------
Payment will be made in immediately available funds in US dollars.
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 received within ten (10) days from
the date of invoice.
6.3 Bank Accounts
-------------
The Buyer will make all payments hereunder in full without setoff or
counterclaim, and without deduction 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 No Setoff
---------
All payments due the Seller hereunder will be made in full without
setoff or counterclaim and without deduction or withholding of any
kind. Consequently, the Buyer will assure that the sums received by
the Seller under this Letter Agreement will be equal to the full
amounts expressed to be due the Seller hereunder.
6.5 If any payment due the Seller is not received in accordance with the
time period provided above in Subparagraph 6.2, the Seller will have
the right to claim from the Buyer and the Buyer will promptly pay to
the Seller interest on the unpaid amount at a rate equal to three
percent (3%) over LIBOR to be calculated from (and including) the due
date to (but excluding) the date payment is received by the
<PAGE>
Seller. The Seller's claim to such interest will not prejudice any
other rights the Seller may have under this Letter Agreement.
7. TITLE
-----
Title to any Material purchased under this Letter Agreement will ***
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.
9. DATA RETRIEVAL
--------------
On the Seller's reasonable request, the Buyer may provide periodically
to the Seller, during the Term, a quantitative list of the parts used
for maintenance and overhaul of the Aircraft 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 spare
parts data with a view to improving 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.
<PAGE>
10. BUY-BACK
--------
10.1 Buy-Back of Obsolete Material
-----------------------------
The Seller agrees to buy back unused Seller Parts that may become
obsolete for the Buyer's fleet *** to the Buyer 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 will 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 will grant the Buyer a credit equal to the purchase
price paid by the Buyer for any such obsolete parts, such credit
being limited to quantities ordered in the Initial Provisioning
recommendation; and
(c) the Seller will use its reasonable efforts to obtain for the
Buyer the same protection from Vendors.
10.2 Buy-Back of Surplus Material
----------------------------
10.2.1 The Seller agrees that at any time within twelve (12) months after the
end of the Initial Provisioning Period, the Buyer will 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 from the Seller under the terms hereof, provided (i) that
the selected protection level for all Material does not exceed
ninety-six percent (96%) with a turnaround time of forty-five (45)
days, (ii) ***
, and (iii) that the Material is returned with the
Seller's original documentation and any such documentation (including
tags, certificates) required to identify, substantiate the condition
of and enable the resale of such Material.
10.2.2 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 will 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 exclusively by means of credit notes to be entered
into the Buyer's account with the Seller for
<PAGE>
Material.
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.
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 guarantees to the Buyer the performance by the Manufacturer of
the Manufacturer's obligations and assigns to the Buyer, and the Buyer
hereby accepts, all of the rights and obligations of the Seller in the
Seller's capacity as "Buyer" as aforesaid under the said 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 the Seller has all the requisite authority
to make the foregoing assignment and effect the foregoing subrogation
to and in favor of the Buyer and that the Seller 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. References to clauses and
paragraphs in the following provisions refer to clauses in the
Agreement and/or to paragraphs in this Letter Agreement.
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) conform to the applicable specification for such part,
<PAGE>
(d) 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,
(e) permit complete interchangeability among Aircraft and parts of
like part-numbered parts, and
(f) be free and clear of all liens and other encumbrances.
11.2 Warranty Period
---------------
The standard warranty period for defects (i) for Seller Parts defined
above in Subparagraphs 1.1(a) is thirty-six (36) months after delivery
of such Seller Parts to the Buyer (the "Warranty Period(s)").
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, at the Seller's expense, the repair,
replacement or correction of, any defective Seller Part, ***
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.
The provisions of Subclauses 12.1.5, 12.1.6, 12.1.7 and 12.1.8 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
-----------------------------------
<PAGE>
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 RECOGNIZES THAT THE RIGHTS, WARRANTIES AND REMEDIES IN THIS
PARAGRAPH 11 ARE ADEQUATE AND SUFFICIENT TO PROTECT THE BUYER FROM ANY
DEFECT OR NONCONFORMITY OR PROBLEM OF ANY KIND IN THE GOODS AND
SERVICES SUPPLIED 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, UNLESS OTHERWISE PROVIDED FOR IN THIS PARAGRAPH 11:
(1) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE;
(2) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(3) ANY RIGHT, CLAIM OR REMEDY FOR TORT, INCLUDING ACTIONS FOR
NEGLIGENCE, RECKLESSNESS, INTENTIONAL TORTS, IMPLIED WARRANTY IN
TORT AND/OR STRICT LIABILITY;
(4) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM COMMERCIAL
CODE, OR ANY OTHER STATE OR FEDERAL STATUTE;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR
STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR LOCAL
STATUTE OR AGENCY;
(6) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE
<PAGE>
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 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 PARAGRAPH 11
SHOULD FOR ANY REASON BE HELD UNLAWFUL, OR OTHERWISE UNENFORCEABLE,
THE REMAINDER OF THIS PARAGRAPH 11 WILL REMAIN IN FULL FORCE AND
EFFECT.
The remedies provided to the Buyer under this Paragraph 11 as to any
defect in respect of the Aircraft or any part thereof are not
cumulative. The Buyer will be entitled to the one 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 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. ***
12. LEASING
-------
12.1 Applicable Terms
----------------
The terms and conditions of this Paragraph 12 will apply to the
Lessor's (as defined below) stock of Seller Parts listed in Appendix
"A" to this Paragraph 12 ("Leased Parts") and will form a part of each
lease of any Leased Part by the
<PAGE>
Buyer from the Seller after the date hereof. Except for the
description of the Leased Part, the Lease Term, the Leased Part
delivery and return locations and the Lease Charges (defined below in
Subparagraph 12.4), all other terms and conditions appearing on any
order form or other document pertaining to Leased Parts will be deemed
inapplicable, and in lieu thereof the terms and conditions of this
Paragraph 12 will prevail. For purposes of this Paragraph 12, the term
"Lessor" refers to the Seller and the term "Lessee" refers to the
Buyer. Parts not included in Appendix "A" to this Paragraph 12 may be
supplied under a separate lease agreement between the Seller and the
Buyer.
12.2 Lease Procedure: Spare Parts Leased
-----------------------------------
At the Lessee's request by telephone (to be confirmed promptly in
writing), telegram, letter or other written instrument, the Lessor
will lease Leased Parts, which will be made available in accordance
with Subparagraph 4.2.3 of this Letter Agreement, to the Lessee as
substitutes for parts withdrawn from an Aircraft for repair or
overhaul. Each lease of Leased Parts will be evidenced by a lease
document ("Lease") issued by the Lessor to the Lessee no later than
seven (7) days after delivery of the Leased Part.
12.3 Lease Term: Return
------------------
The term of the lease ("Lease Term") will commence on the date of
receipt of the Leased Part by the Lessee or its agent at the Lessee's
facility in a serviceable condition and will end on the date of
receipt at the Lessor's facility of the Leased Part in a serviceable
condition. The Lease Term will not exceed ninety (90) days after the
Lessee's receipt of the Leased Part, unless extended by written
agreement between Lessor and Lessee within such ninety (90)-day period
(such extension not to exceed an additional ninety (90) days).
Notwithstanding the foregoing, the Lease Term will end in the event,
and upon the date, of exercise of the Lessee's option to purchase the
Leased Part, as provided herein.
12.4 Lease Charges and Taxes
-----------------------
The Lessee will pay the Lessor (a) a daily rental charge for the Lease
Term in respect of each Leased Part equal to one-three-hundred-sixty-
fifth (1/365) of the Catalog Price of such Leased Part, as set forth
in the Seller's Spare Parts Price List in effect on the date of
commencement of the Lease Term, (b) any reasonable additional costs
which may be incurred by the Lessor solely and directly as a result of
such Lease, such as inspection, test, repair, overhaul and repackaging
costs as required to place the Leased Part in serviceable condition,
(c) all transportation and insurance charges and (d) any taxes
(excluding any taxes based on income or gross receipts), charges or
customs duties imposed upon the Lessor or its property as a result of
the lease, sale, delivery, storage or transfer of any
<PAGE>
Leased Part (the "Lease Charges"). All payments due hereunder will be
made in accordance with Paragraph 6 of this Letter Agreement.
In the event that the Leased Part has not been returned to the
Lessor's designated facilities within the time period provided in
Subparagraph 12.3 above, the Lessor will be entitled, in addition to
any other remedy it may have at law or under this Paragraph 12, to
charge to the Lessee, and the Lessee will pay, all of the charges
referred to in this Subparagraph 12.4 accruing for each day after the
end of the Lease Term and for as long as such Leased Part is not
returned to the Lessor and as though the Lease Term were extended to
the period of such delay.
Notwithstanding the foregoing, the Lessor hereby agrees not to charge
the Lessee any daily rental charge as referred to above in
Subparagraph 12.4(a) from the date that is ninety (90) days after the
date of receipt of the Leased Part by the Lessee, provided that (i)
the Lessee reasonably demonstrates that the repair station designated
by the Lessor and to which the Lessee has sent the damaged item (which
is the cause of the lease described in this Paragraph 12) (the
"Damaged Item") has failed to perform the repair of the Damaged Item
within ninety (90) days, and (ii) the repair station is unable to
provide adequate and satisfactory reasons for its nonperformance.
12.5 Title
-----
Title to each Leased Part will remain with the Lessor at all times
unless the Lessee exercises its option to purchase or exchange it in
accordance with Subparagraph 12.8 of this Letter Agreement, in which
case title will pass to the Lessee in accordance with Paragraph 7 of
this Letter Agreement.
12.6 Risk of Loss
------------
Except for normal wear and tear, each Leased Part will be returned to
the Lessor in the same condition as when delivered to the Lessee.
However, the Lessee will not without the Lessor's prior written
consent repair, modify or alter any Leased Part (other than routine
maintenance). Risk of loss or damage to each Leased Part will remain
with the Lessee until such Leased Part is redelivered to the Lessor at
the return location specified in the applicable Lease. If a Leased
Part is lost or damaged beyond repair, the Lessee will be deemed to
have exercised its option to purchase the part in accordance with
Subparagraph 12.8 of this Letter Agreement, as of the date of such
loss or damage.
12.7 Record of Flight Hours
----------------------
All flight hours accumulated by the Lessee on each Leased Part during
the Lease Term will be documented by the Lessee. Records will be
delivered to the Lessor upon return of such Leased Part to the Lessor.
In addition, all documentation pertinent to inspection, maintenance
and/or rework of the Leased Part to maintain said Leased Part
serviceable in accordance with the standards of the Lessor will be
delivered to the Lessor upon return of the Leased Part to the Lessor
on
<PAGE>
termination of the Lease.
Such documentation will include but not be limited to evidence of
incidents such as hard landings, abnormalities of operation and
corrective action taken by the Lessee as a result of such incidents.
12.8 Option to Purchase
------------------
The Lessee may at its option, exercisable by written notice given to
the Lessor, elect during or at the end of the Lease Term to purchase
the Leased Part, in which case the then current purchase price for
such Leased Part as set forth in the Seller's Spare Parts Price List
will be paid by the Lessee to the Lessor. The immediately preceding
sentence will apply to new Leased Parts only. In the event the Leased
Part is not new at commencement of the Lease Term, eighty-five percent
(85%) of the then current purchase price for such Leased Part will be
paid by the Lessee to the Lessor. Such option will be contingent upon
the Lessee providing the Lessor with evidence satisfactory to the
Lessor that the original part fitted to the Aircraft is beyond
economical repair. Should the Lessee exercise such option, *** (*** )
of the Lease rental charges already invoiced pursuant to Subparagraph
12.4 (a) will be credited to the Lessee against the said purchase
price of the Leased Part.
Should the Lessee fail to return the Leased Part to the Lessor at the
end of the Lease Term, such failure will be deemed to be an election
by the Lessee to purchase the Leased Part.
In the event of purchase, the Leased Part will be warranted in
accordance with Clause 11 of this Letter Agreement as though such
Leased Part were a Seller Part, provided, however, that (i) the Seller
will prorate the full Warranty Period granted to the Buyer according
to the actual usage of such Leased Part and (ii) in no event will such
Warranty Period be less than six (6) months from the date of purchase
of such Leased Part. A warranty granted under this Subparagraph 12.8.3
will be in substitution for the warranty granted under Subparagraph
12.9 at the commencement of the Lease Term.
12.9 Warranties
----------
The Lessor, in its capacity as "Lessee," under its arrangements with
the Manufacturer, in its capacity as "Lessor," has negotiated and
obtained the following warranties from the Manufacturer with respect
to the Leased Parts, subject to the terms, conditions, limitations and
restrictions all as hereinafter set out. The Lessor hereby assigns to
the Lessee, and the Lessee hereby accepts, all of the rights and
obligations of the Lessor in the Lessor's capacity as "Lessee" as
aforesaid under the said warranties and the Lessor subrogates the
Lessee as to all such rights and obligations in respect of Leased
Parts during the Lease Term with respect thereto. The Lessor hereby
warrants to the Lessee that the Lessor has all requisite authority to
make the foregoing assignment and effect the foregoing
<PAGE>
subrogation to and in favor of the Lessee and that the Lessor will not
enter into any amendment of the provisions so assigned or subrogated
without the prior written consent of the Lessee. Capitalized terms
utilized in the following provisions have the meanings assigned
thereto in this Letter Agreement, except that the term "Lessor" refers
to the Manufacturer and the term "Lessee" refers to the Lessor.
References to clauses and paragraphs in the following provisions refer
to clauses in the Agreement and/or to paragraphs in this Letter
Agreement.
QUOTE
12.9.1 The Lessor warrants that each Leased Part will at the time of delivery
thereof:
(a) be free from defects in material,
(b) be free from defects in workmanship, including, without
limitation, processes of manufacture,
(c) conform to the applicable specification for such part,
(d) 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,
(e) permit complete interchangeability among Aircraft and parts of
like part-numbered parts, and
(f) be free and clear of all liens and other encumbrances.
12.9.2 Survival of Warranties
----------------------
With respect to each Leased Part, the warranty set forth above in
Subparagraph 12.9.1(a) will not survive delivery, and the warranties
set forth above in Subparagraphs 12.9.1(b) through 12.9.1(f) will
survive delivery only upon the conditions and subject to the
limitations set forth below in Subparagraphs 12.9.3 through 12.9.8.
12.9.3 Warranty and Notice Periods
---------------------------
The Lessee's remedy and the Lessor's obligation and liability under
this Subparagraph 12.9, with respect to each defect, are conditioned
upon (i) the defect having become apparent within the Lease Term and
(ii) the Lessor's warranty administrator having received written
notice of the defect from the Lessee within ***
<PAGE>
12.9.4 Return and Proof
----------------
The Lessee's remedy and the Lessor's obligation and liability under
this Subparagraph 12.9, with respect to each defect, are also
conditioned upon:
(a) the return by the Lessee as soon as practicable to the return
location specified in the applicable Lease, or such other place
as may be mutually agreeable, of the Leased Part claimed to be
defective, and
(b) the submission by the Lessee to the Lessor's warranty
administrator of reasonable proof that the claimed defect is due
to a matter embraced within the Lessor's warranty under this
Subparagraph 12.9 and that such defect did not result from any
act or omission of the Lessee, including but not limited to any
failure to operate or maintain the Leased Part claimed to be
defective or the Aircraft in which it was installed in accordance
with the Lessee's FAA-approved maintenance program.
12.9.5 Remedies
--------
The Lessee's remedy and the Lessor's obligation and liability under
this Subparagraph 12.9 with respect to each defect are limited to the
repair of such defect in the Leased Part in which the defect appears,
or, as mutually agreed, to the replacement of such Leased Part with a
similar part free from defect.
Any replacement part furnished under this Subparagraph 12.9.5 will for
the purposes of this Letter Agreement be deemed to be the Leased Part
so replaced.
12.9.6 Suspension and Transportation Costs
-----------------------------------
12.9.6.1 If a Leased Part is found to be defective and is covered by this
warranty, the Lease Term and the Lessee's obligation to pay rental
charges as provided in Subparagraph 12.4(a) of this Letter Agreement
will be suspended from the date on which the Lessee notifies the
Lessor of such defect until the date on which the Lessor has repaired,
corrected or replaced the defective Leased Part, provided, however,
that the Lessee has withdrawn such defective Leased Part from use,
promptly after giving such notice to the Lessor. If the defective
Leased Part is replaced, such replacement will be deemed to no longer
be a Leased Part under the Lease as of the date on which such part was
received by the Lessor at the return location specified in the
applicable Lease.
If a Leased Part is found to be defective on first use by the Lessee
and is covered by this warranty, no rental or other charges as
provided in Subparagraph 12.4(a) will accrue and be payable by the
Lessee until the date on which the Lessor has repaired, corrected or
replaced the defective Leased Part in a manner satisfactory to the
Lessee.
12.9.6.2 All transportation and insurance costs associated with the return of
the defective
<PAGE>
Leased Part to the Lessor and the return of the repaired, corrected or
replacement part to the Lessee will be borne by the Lessor.
12.9.7 Wear and Tear
-------------
Normal wear and tear and the need for regular maintenance and overhaul
will not constitute a defect or nonconformance under this Subparagraph
12.9.
12.9.8 Exclusivity of Warranties and General Limitations of Liability
--------------------------------------------------------------
and Duplicate Remedies
----------------------
The Lessee and the Lessor 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
Subparagraph 12.9.
UNQUOTE
In consideration of the assignment and subrogation by the Seller under
this Subparagraph 12.9 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
-----------------------------------
THIS PARAGRAPH 12 (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 LEASED PART
DELIVERED UNDER THIS LETTER AGREEMENT.
THE BUYER RECOGNIZES THAT THE RIGHTS, WARRANTIES AND REMEDIES IN THIS
PARAGRAPH 12 ARE ADEQUATE AND SUFFICIENT TO PROTECT THE BUYER FROM ANY
DEFECT OR NONCONFORMITY OR PROBLEM OF ANY KIND IN THE GOODS AND
SERVICES SUPPLIED 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
<PAGE>
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 LEASED PART DELIVERED UNDER THIS LETTER AGREEMENT,
INCLUDING BUT NOT LIMITED TO, UNLESS OTHERWISE PROVIDED FOR IN THIS
PARAGRAPH 12:
(1) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(2) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(3) ANY RIGHT, CLAIM OR REMEDY FOR TORT, INCLUDING ACTIONS FOR
NEGLIGENCE, RECKLESSNESS, INTENTIONAL TORTS, IMPLIED WARRANTY IN
TORT AND/OR STRICT LIABILITY;
(4) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM COMMERCIAL
CODE, OR ANY OTHER STATE OR FEDERAL STATUTE;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR
STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR LOCAL
STATUTE OR AGENCY;
(6) 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 WILL NOT BE EXTENDED,
ALTERED OR VARIED EXCEPT BY A WRITTEN
<PAGE>
INSTRUMENT SIGNED BY THE SELLER AND THE BUYER. IN THE EVENT THAT ANY
PROVISION OF THIS PARAGRAPH 12 SHOULD FOR ANY REASON BE HELD UNLAWFUL,
OR OTHERWISE UNENFORCEABLE, THE REMAINDER OF THIS PARAGRAPH 12 WILL
REMAIN IN FULL FORCE AND EFFECT.
The remedies provided to the Buyer under this Paragraph 12 as to any
defect in respect of the Aircraft or any part thereof are not
cumulative. The Buyer will be entitled to the one remedy which
provides the maximum benefit to it, as the Buyer may elect, pursuant
to the terms and conditions of this Paragraph 12 for any such
particular defect for which remedies are provided under this Paragraph
12; provided, however, that, ***
, the Buyer will not be entitled to elect a remedy
under one part of this Paragraph 12 which constitutes a duplication of
any remedy elected by it under any other part hereof for the same
defect. ***
<PAGE>
APPENDIX "A" TO CLAUSE 12
-------------------------
SELLER PARTS LEASING LIST
(Leased Parts)
--------------
AILERONS
AUXILIARY POWER UNIT (APU) DOORS
CARGO DOORS
PASSENGER DOORS
ELEVATORS
FLAPS
LANDING GEAR DOORS
RUDDER
TAIL CONE
WING SLATS
SPOILERS
AIRBRAKES
WING TIPS
RADOMES
<PAGE>
13. ***
--------------------------
13.1 ***
13.2 ***
13.3 ***
13.4 ***
14. TERMINATION
-----------
Any termination under Clause 10, 11 or 21 of the Agreement or under
the 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 undelivered Aircraft as to which the Agreement
has been terminated. Termination under this Paragraph 14
notwithstanding new and unused Material in excess of the Buyer's
requirements due to such Aircraft cancellation will be repurchased by
the Seller as provided in Subparagraph 10.2 of this Letter Agreement.
<PAGE>
15. ASSIGNMENT
----------
This Letter Agreement may be assigned in accordance with Clause 19 of
the Agreement.
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/Christophe Mourey
---------------------------
Its: Chief Executive Officer
---------------------------
Date: October 31, 1997
---------------------------
Accepted and Agreed
US Airways Group, Inc.
By: /s/Thomas A. Fink
-----------------------
Its: Treasurer
-----------------------
Date: October 31, 1997
-----------------------
<PAGE>
LETTER AGREEMENT NO. 2
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: DELIVERIES
----------
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the "Seller"),
have entered into an Airbus A319/A320/A321 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 said 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 said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said 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>
1. ***
----------------------
***
2. RECONFIRMABLE AIRCRAFT
----------------------
In order to provide the Buyer with flexibility to meet its future fleet mix
requirements, the Seller grants the Buyer the right to reconfirm its order
for each and any Reconfirmable Aircraft. The Buyer will notify the Seller
in writing by no later than *** (*** ) *** before the scheduled month of
delivery of a Reconfirmable Aircraft as to whether it reconfirms the order
for the applicable Reconfirmable Aircraft.
***
Upon such nonreconfirmation, the Buyer's rights with respect to the
Reconfirmable Aircraft that was not reconfirmed will expire and the parties
will have no further obligations to one another with respect to such
Reconfirmable Aircraft.
3. ***
---------------------------
3.1 ***
<PAGE>
3.2 ***
4. ***
----------------
4.1 ***
4.2 ***
<PAGE>
5. LEASED AIRCRAFT
---------------
If the Buyer wishes to lease A319, A320 or A321 aircraft, the Seller will
assist the Buyer in locating such aircraft (the "Leased Aircraft") from
leasing companies. In the event that the Leased Aircraft need to have a ***
6. ***
--------
6.1 ***
<PAGE>
6.2 ***
***
7. EXCUSABLE DELAYS
----------------
7.1 Unanticipated Delay
-------------------
Subclause 10.2 of the Agreement is hereby amended as follows:
<PAGE>
7.2 Anticipated Delay
-----------------
***
8. INEXCUSABLE DELAYS
------------------
8.1 Subclause 11.1 of the Agreement is hereby amended as follows:
***
8.2 Subclause 11.4 of the Agreement is hereby amended as follows:
***
9. ***
-----------------
***
10. BUYER FURNISHED EQUIPMENT
-------------------------
<PAGE>
11. ASSIGNMENT
----------
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. Notwithstanding the preceding sentence, the terms of
Subclauses 19.5 and 19.6 of the Agreement will apply to this Letter
Agreement.
<PAGE>
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/Christophe Mourey
--------------------------
Its: Chief Executive Officer
--------------------------
Date: October 31, 1997
--------------------------
Accepted and Agreed
US Airways Group, Inc.
By: /s/Thomas A. Fink
---------------------------
Its: Treasurer
---------------------------
Date: October 31, 1997
---------------------------
<PAGE>
LETTER AGREEMENT NO. 3
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: ADDITIONAL AIRCRAFT
-------------------
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the "Seller"),
have entered into an Airbus A319/A320/A321 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 said 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 said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said 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>
1. SCOPE
-----
***
2. DELIVERIES
----------
Upon the Buyer's written request from time to time, the Seller will offer
the Buyer delivery positions for Additional Aircraft by month and year
subject to the Manufacturer's Commercial Constraints and Industrial
Constraints at the time of request. ***
Delivery positions offered by the Seller for Additional Aircraft will be
held for the Buyer during the five (5) Working Day period following the
Seller's offer. The Buyer may exercise its option to purchase each such
Additional Aircraft by written notice to the Seller and by making any
Predelivery Payment then due as set forth in Subclause 6.2.2.2 of the
Agreement. ***
3. ***
----------------------
3.1 ***
<PAGE>
3.2 ***
3.3 ***
4. ASSIGNMENT
----------
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 4 will be void and of no
force or effect. Notwithstanding the preceding sentence, the terms of
Subclauses 19.5 and 19.6 of the Agreement will apply to this Letter
Agreement.
<PAGE>
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/Christophe Mourey
--------------------------
Its: Chief Executive Officer
--------------------------
Date: October 31, 1997
--------------------------
Accepted and Agreed
US Airways Group, Inc.
By: /s/Thomas A. Fink
---------------------------
Its: Treasurer
---------------------------
Date: October 31, 1997
---------------------------
<PAGE>
LETTER AGREEMENT NO. 4
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: CONVERSION RIGHTS
-----------------
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the "Seller"),
have entered into an Airbus A319/A320/A321 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 said 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 said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said 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>
1. CONVERSION RIGHT
----------------
1.1 In order to provide the Buyer with additional flexibility to meet its
future fleet mix requirements, the Seller grants the Buyer aircraft type
conversion rights under the terms and conditions contained in this
Paragraph 1 (the "Conversion Right").
***
<PAGE>
(iii) The Conversion Right will be subject to the Manufacturer's
Commercial Constraints and Industrial Constraints at the time the
Buyer elects to exercise its Conversion Right.
1.2 The Buyer's exercise of its Conversion Right with respect to a particular
Aircraft will result in an adjustment to the Predelivery Payment Reference
Price and Predelivery Payments due in respect of the converted Aircraft (a
"Converted Aircraft").
If the Predelivery Payment Reference Price for a Converted Aircraft is
higher than it was for the Aircraft from which it was converted (the
"Original Aircraft"), then the difference between the Predelivery Payments
the Buyer has paid and what it would have paid had the Converted Aircraft
been an Original Aircraft will be due within three (3) Working Days of
conversion, and conversion will be effective when the Buyer pays such
difference.
***
2. ***
-----------------------------
***
<PAGE>
3. ASSIGNMENT
----------
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 3 will be void and of no
force or effect. Notwithstanding the preceding sentence, the terms of
Subclauses 19.5 and 19.6 of the Agreement will apply to this Letter
Agreement.
<PAGE>
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/ Christophe Mourey
--------------------------
Its: Chief Executive Officer
--------------------------
Date: October 31, 1997
--------------------------
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
--------------------------
Its: Treasurer
--------------------------
Date: October 31, 1997
--------------------------
<PAGE>
LETTER AGREEMENT NO. 5
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: PURCHASE INCENTIVES
--------------------
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the "Seller"),
have entered into an Airbus A319/A320/A321 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 said 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 said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said 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>
1. ***
------------------------
1.1 ***
-------------------------
1.2 ***
----------------------
***
1.3 ***
----------------------
***
<PAGE>
1.4. ***
----------------------
***
1.5 ***
-------------------------
***
1.6 ***
-----------------------
***
<PAGE>
1.7 ***
---------------------
1.7.1 ***
<PAGE>
1.7.2 ***
1.8 ***
------------------------
2. ***
----------------------
2.1 ***
----------------------
2.1.1 ***
2.1.2 ***
<PAGE>
2.1.3 ***
2.2 ***
---------------------------
***
3. PROPULSION SYSTEMS INCENTIVES
-----------------------------
Except as otherwise agreed to by the Buyer and the manufacturer of the
Propulsion Systems and notified to the Seller, the Propulsion Systems
Reference Prices for the engines and the CFM Credit are subject to
escalation to the date of delivery of the applicable Aircraft by applying
the Propulsion Systems' manufacturers' price revision formulas (set forth
in Exhibit "H" to the Agreement) and to changes imposed by the Propulsion
Systems' manufacturers.
The Buyer will negotiate directly with the Propulsion Systems'
manufacturers engine pricing, credits, escalation, and other commercial
issues. As a result of such negotiation, the Propulsion Systems'
manufacturer's price revision formula in Exhibit "H" to this Agreement may
be revised.
4. ASSIGNMENT
----------
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 4 will be
void and of no force or effect. Notwithstanding the preceding sentence,
the terms of Subclauses 19.5 and 19.6 of the Agreement will apply to this
Letter Agreement.
<PAGE>
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/ Christophe Mourey
--------------------------
Its: Chief Executive Officer
--------------------------
Date: October 31, 1997
--------------------------
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
---------------------------
Its: Treasurer
---------------------------
Date: October 31, 1997
---------------------------
<PAGE>
LETTER AGREEMENT NO. 6
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: SPECIFICATION MATTERS
---------------------
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the "Seller"),
have entered into an Airbus A319/A320/A321 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 said 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 said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said 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>
1. ***
-------------------------
***
2. ***
------------------------------
2.1 ***
2.2 ***
3. ***
-------------------------------
3.1 ***
3.2 ***
<PAGE>
3.3 ***
4. ***
------------------------
4.1 ***
4.2 ***
5. ***
------------------
6. ***
--------------------
***
<PAGE>
7. ***
--------------------
***
8. ***
------------------
8.1 ***
8.2 ***
8.3 ***
<PAGE>
9. ASSIGNMENT
----------
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. Notwithstanding the preceding sentence, the terms of
Subclauses 19.5 and 19.6 of the Agreement will apply to this Letter
Agreement.
<PAGE>
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/ Christophe Mourey
--------------------------
Its: Chief Executive Officer
--------------------------
Date: October 31, 1997
--------------------------
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
---------------------------
Its: Treasurer
---------------------------
Date: October 31, 1997
---------------------------
<PAGE>
LETTER AGREEMENT NO. 7
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: PRODUCT SUPPORT
---------------
Ladies and Gentlemen:
US Airways Group, 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 said 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 said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said 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>
1. PRODUCT SUPPORT RESPONSIVENESS
------------------------------
1.1 The Seller and the Manufacturer will promptly respond to, and deal with,
any correspondence or request from the Buyer with respect to product
support issues.
1.2 The precise contents of the product support package may be adjusted over
time, by way of exchanges within the envelope of such package, to better
match the Buyer's product support needs.
2. ***
----------------
2.1 ***
----------------
***
2.2 ***
----------------
***
2.3 ***
-------------------------
***
<PAGE>
2.4 ***
-------------------------
2.4.1 ***
2.4.2 ***
<PAGE>
2.5 No Fault-Found Policy
---------------------
The Seller has developed a "No Fault Found Policy" covering Vendor Parts
and Seller Parts, as specified in the booklet SG-S/921.0067/96. Such policy
will not be changed in a manner adverse to the Buyer.
3. ***
---------------------
3.1 ***
3.2 ***
4. TECHNICAL PUBLICATIONS
----------------------
4.1 The Buyer and the Seller agree that an integral portion of the Technical
Publications product support is the implementation of a functioning "E-
Pubs" system by the Buyer prior to delivery of the first Aircraft.
Accordingly, the Buyer and the Seller will together devise a plan to (a)
make available to the Buyer on such "E-Pubs" system all Technical
Publications now only available on CD-ROM, (b) the Buyer and the Seller
will commit to implement "E-Pubs" as soon as practicable, and (c) agree on
the allocation of the costs of any necessary interim implementation.
4.2 Aircraft MSG-3 analysis will be provided to the Buyer as part of the
Technical Publications package.
<PAGE>
4.3 The Seller will provide the Buyer an interior and exterior aircraft
placards manual specifying which placards are required for aircraft
dispatch.
4.4 ***
4.5 On the Buyer's request, the Seller will provide the Buyer certification
data for specific material, including flammability coupons, when such data
is available to the Seller.
4.6 ***
5. TRAINING
--------
5.1 ***
5.2 ***
<PAGE>
5.3 ***
5.4.1 ***
5.4.2 ***
5.5 ***
<PAGE>
6. MAINTENANCE PLANNING
--------------------
6.1 ***
6.2 ***
7. ENTRY-INTO-SERVICE
------------------
7.1 ***
7.2 ***
<PAGE>
8. TOOLING
-------
8.1 ***
8.2 ***
8.3 ***
8.4 ***
9. ***
--------------------------
9.1 ***
9.2 ***
<PAGE>
9.3 ***
9.4 ***
9.5 ***
10. ASSIGNMENT
----------
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 10 will be void and of no
force or effect. Notwithstanding the preceding sentence, the terms of
Subclauses 19.5 and 19.6 of the Agreement will apply to this Letter
Agreement.
<PAGE>
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/ Christophe Mourey
--------------------------
Its: Chief Executive Officer
--------------------------
Date: October 31, 1997
--------------------------
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
---------------------------
Its: Treasurer
---------------------------
Date: October 31, 1997
---------------------------
<PAGE>
A319-112
CFM 56-5B-6 ENGINES
2) Diversion consisting of climb and cruise in ISA+10 (degrees) C
conditions over a still air distance of 150 nautical miles starting at
1,500 ft pressure altitude above the destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in ISA+10
(degrees) C conditions.
2.4 The A319 Aircraft will be capable of carrying a fixed payload of *** over
a guaranteed still air stage distance of not less than *** when operated
under the conditions defined below:
2.4.1 The departure airport conditions are such as to allow the required
takeoff weight to be used without restriction.
The destination airport conditions are such as to allow the required
landing weight to be used without restriction.
2.4.2 An allowance of 220 lb of fuel is included for taxi at the departure
airport.
2.4.3 An allowance of 490 lb of fuel is included for take-off and climb to
1,500 ft pressure altitude with acceleration to climb speed in ISA+10
(degrees) C conditions.
2.4.4 Climb from 1,500 ft pressure altitude 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 pressure
altitude are conducted in ISA+10 (degrees) C conditions. Climb and
descent speeds below 10,000 ft will be 250 knots CAS.
2.4.5 An allowance of 200 lb of fuel is included for approach and landing at
the destination airport.
2.4.6 Stage distance is defined as the distance covered during climb, cruise
and descent as described in Subparagraph 2.4.4 above.
2.4.7 At the end of approach and landing 7,080 lb of fuel will remain in the
tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10 (degrees) C
conditions over a still air distance of 150 nautical miles starting
at 1,500 ft pressure altitude above the destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in ISA+10
(degrees) C conditions.
<PAGE>
A319-112
CFM 56-5B-6 ENGINES
2.5 The A319 Aircraft will be capable of carrying a fixed payload of *** a
guaranteed still air stage distance of not less than 2,845 nautical miles
when operated under the conditions defined below:
2.5.1 The departure airport conditions are such as to allow the required
takeoff weight to be used without restriction.
The destination airport conditions are such as to allow the required
landing weight to be used without restriction.
2.5.2 An allowance of 220 lb of fuel is included for taxi at the departure
airport.
2.5.3 An allowance of 470 lb of fuel is included for take-off and climb to
1,500 ft pressure altitude with acceleration to climb speed in ISA+10
(degrees) C conditions.
2.5.4 Climb from 1,500 ft pressure altitude 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 pressure
altitude are conducted in ISA+10 (degrees) C conditions. Climb and
descent speeds below 10,000 ft will be 250 knots CAS.
2.5.5 An allowance of 200 lb of fuel is included for approach and landing at
the destination airport.
2.5.6 Stage distance is defined as the distance covered during climb, cruise
and descent as described in Subparagraph 2.5.4 above.
2.5.7 At the end of approach and landing 6,890 lb of fuel will remain in the
tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10 (degrees) C
conditions over a still air distance of 150 nautical miles starting
at 1,500 ft pressure altitude above the destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in ISA+10
(degrees) C conditions.
2.6 The mission payload guarantee defined in Subparagraph 2.1 and the mission
fuel burn guarantee defined in Subparagraph 2.3 and the mission ranges
defined in Subparagraphs 2.4 and 2.5 are based on the Buyer's
Manufacturer's Weight Empty as defined in Subparagraph 3.3 below plus a
fixed allowance of 10,730 lb for Customer Changes and Operators Items.
<PAGE>
LETTER AGREEMENT NO. 8A
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: A319-112 PERFORMANCE GUARANTEES
-------------------------------
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A319/A320/A321 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 said Agreement. The Buyer and the Seller
have agreed to set forth in this Letter Agreement No. 8A (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 said Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this Letter
Agreement will be governed by the provisions of said 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.
The Seller, in its capacity as "Buyer" under its arrangement with the
Manufacturer, has negotiated and obtained the following performance and weight
guarantees (the "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 guarantees to the
Buyer the performance by the Manufacturer of the Manufacturer's obligations and
assigns to the Buyer and the Buyer hereby accepts, as to each A319 Aircraft
delivered to the Buyer under the Agreement, all of the rights and obligations of
the Seller with respect to such A319 Aircraft in the Seller's capacity as
"Buyer" as aforesaid under the said Guarantees and the Seller
<PAGE>
A319-112
CFM 56-5B-6 ENGINES
subrogates the Buyer into all such rights and obligations in respect of such
A319 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 or subrogated without the prior written
consent of the Buyer.
Capitalized terms used in the following quoted provisions and not otherwise
defined herein will 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 (as defined in the Agreement).
QUOTE
- -----
PREAMBLE
--------
The guarantees defined below (the "Guarantees") are applicable to the
A319 Aircraft as described in the Technical Specification J.000.02000
Issue 3 dated 29 March 1995 amended by Specification Change Notices for:
i) the fitting CFM International CFM 56-5B-6 propulsion systems
ii) the increase in the Maximum Take-Off Weight to 166,450 lb (75,500
kg)
without taking into account any further changes thereto as provided in
the Agreement.
Notwithstanding the foregoing the Seller reserves the right to increase
the Design Weights above the weights shown in the Specification in order
to satisfy the Guarantees.
1 GUARANTEED PERFORMANCE
----------------------
1.1 Take-off
--------
1.1.1 FAR take-off field length at an A319 Aircraft gross weight of 166,450 lb
(75,500 kg) at the start of ground run at sea level pressure altitude at
a temperature of 84 (degrees) F will be not more than a guaranteed value
of 8,980 feet.
1.1.2 When operated under the following conditions (representative of PHX 08R):
Pressure altitude : 1,133 ft
Ambient temperature : 100 (degrees) F
<PAGE>
A319-112
CFM 56-5B-6 ENGINES
Take-off run available ("TOR") : 10,300 feet
Take-off distance available : 10,300 feet
Accelerate-stop distance available : 10,300 feet
Slope : 0.20% uphill
Wind : Zero
Obstacles (height and distance : 15 feet/1,438 feet
from end of TOR) : 418 feet/17,285 feet
the maximum permissible weight at the start of ground run will be not
less than a guaranteed value of 158,250 lb.
1.1.3 When operated under the following conditions (representative of DEN 09):
Pressure altitude : 5,431 ft
Ambient temperature : 84 (degrees) F
Take-off run available ("TOR") : 12,000 feet
Take-off distance available : 12,000 feet
Accelerate-stop distance available : 12,000 feet
Slope : 0.01% uphill
Wind : Zero
Obstacles : None
the maximum permissible weight at the start of ground run will be not
less than a guaranteed value of 158,700 lb.
1.2 Second Segment
--------------
The A319 Aircraft will meet FAR 25 regulations for one engine inoperative
climb after take-off, 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 1.1.
1.3 Initial Cruise Altitude
-----------------------
At an A319 Aircraft gross weight of 145,000 lb in ISA+10 (degrees) C
conditions the pressure altitude for :
1) Level flight at a true Mach number of 0.78 using a thrust not
exceeding maximum
<PAGE>
A319-112
CFM 56-5B-6 ENGINES
cruise thrust
2) A rate of climb of not less than 300 ft/min at a true Mach number of
0.78 using a thrust not exceeding maximum climb thrust
3) A buffet maneuver margin of not less than 0.3g at a true Mach number
of 0.78
will be not less than a guaranteed value of 37,000 ft.
1.4 Speed
-----
Level flight speed at an A319 Aircraft gross weight of 145,000 lb at a
pressure altitude of 35,000 ft in ISA+10 (degrees) C conditions using a
thrust not exceeding maximum cruise thrust will be not less than a
guaranteed true Mach number of 0.805.
1.5 Specific Range
--------------
1.5.1 The nautical miles per pound of fuel at an A319 Aircraft gross weight of
145,000 lb at a pressure altitude of 35,000 ft in ISA+10 (degrees) C
conditions at a true Mach number of 0.78 will be not less than a
guaranteed value of 0.0833 nm/lb.
1.5.2 The nautical miles per pound of fuel at an A319 Aircraft gross weight of
140,000 lb at a pressure altitude of 37,000 ft in ISA+10 (degrees) C
conditions at a true Mach number of 0.78 will be not less than a
guaranteed value of 0.0867 nm/lb.
1.6 En-route One Engine Inoperative
-------------------------------
The A319 Aircraft will meet FAR regulations minimum en-route climb one
engine inoperative and the other operating at the maximum continuous
thrust with anti-icing off at an A319 Aircraft gross weight of 145,000 lb
in the cruise configuration in ISA+10 (degrees) C conditions at a
guaranteed pressure altitude of not less than 16,000 ft.
1.7 Landing Field Length
--------------------
1.7.1 FAR certified wet landing field length at an A319 Aircraft gross weight
of 134,480 lb (61,000 kg) at sea level pressure altitude will be not
greater than 5,720 feet.
1.7.2 FAR certified wet landing field length at an A319 Aircraft gross weight
of 134,480 lb (61,000 kg) at a pressure altitude of 5,431 ft will be not
greater than 6,500 feet.
2 MISSION GUARANTEES
------------------
<PAGE>
A319-112
CFM 56-5B-6 ENGINES
2.1 The A319 Aircraft will be capable of carrying a guaranteed payload of not
less than *** over a still air stage distance of 2,610 nautical miles
(representative of PHL to SFO with a 65 knot headwind) when operated
under the conditions defined below:
2.1.1 The departure airport conditions (representative of PHL 09R) are as
follows:
Pressure altitude : 21 ft
Ambient temperature : 84 (degrees) F
Take-off run available ("TOR") : 10,499 feet
Take-off distance available : 10,499 feet
Accelerate-stop distance available : 10,499 feet
Slope : 0.10% downhill
Wind : Zero
Obstacles (height and distance : 17 feet/1,090 feet
from end of TOR) : 57 feet/4,306 feet
: 178 feet/9,500 feet
The destination airport conditions are such as to allow the required
landing weight to be used without restriction. Pressure altitude is 11
feet.
2.1.2 An allowance of 220 lb of fuel is included for taxi at the departure
airport.
2.1.3 An allowance of 505 lb of fuel is included for take-off and climb to
1,500 ft above the departure airport at 84 (degrees) F with acceleration
to climb speed.
2.1.4 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+10 (degrees) C
conditions. Climb and descent speeds below 10,000 ft will be 250 knots
CAS.
2.1.5 An allowance of 190 lb of fuel is included for approach and land at the
destination airport.
2.1.6 Stage distance is defined as the distance covered during climb, cruise
and descent as described in Subparagraph 2.1.4 above.
2.1.7 At the end of approach and land 7,110 lb of fuel will remain in the
tanks. This represents the estimated fuel required for:
1) Missed approach
<PAGE>
A319-112
CFM 56-5B-6 ENGINES
2) Diversion consisting of climb and cruise in ISA+10 (degrees) C
conditions over a still air distance of 150 nautical miles starting
at 1,500 ft above the destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in ISA+10
(degrees) C conditions.
2.2 The A319 Aircraft will be capable of carrying a guaranteed payload of not
less than *** over a still air stage distance of 1,545 nautical miles
(representative of STT to PHL with a 37 knot headwind) when operated
under the conditions defined below:
2.2.1 The departure airport conditions (representative of STT 10) are as
follows:
Pressure altitude : 24 ft
Ambient temperature : 84 (degrees) F
Take-off run available ("TOR") : 7,000 feet
Take-off distance available : 7,000 feet
Accelerate-stop distance available : 7,000 feet
Slope : 0.20% downhill
Wind : Zero
Obstacle (height and distance : 17 feet/2,083 feet
from end of TOR)
The destination airport conditions are such as to allow the required
landing weight to be used without restriction. Pressure altitude is 21
feet.
2.2.2 An allowance of 220 lb of fuel is included for taxi at the departure
airport.
2.2.3 An allowance of 445 lb of fuel is included for take-off and climb to
1,500 ft above the departure airport at 84 (degrees) F with acceleration
to climb speed.
2.2.4 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+10 (degrees) C
conditions. Climb and descent speeds below 10,000 ft will be 250 knots
CAS.
2.2.5 An allowance of 200 lb of fuel is included for approach and land at the
destination airport.
2.2.6 Stage distance is defined as the distance covered during climb, cruise
and descent as described in Subparagraph 2.2.4 above.
2.2.7 At the end of approach and land 7,140 lb of fuel will remain in the
tanks. This
<PAGE>
A319-112
CFM 56-5B-6 ENGINES
represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10 (degrees) C
conditions over a still air distance of 150 nautical miles starting
at 1,500 ft above the destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in ISA+10
(degrees) C conditions.
2.3 In carrying a fixed payload of 26,760 lb over a still air stage distance
of 2,000 nautical miles when operated under the conditions defined below
the Block Fuel will be not more than a guaranteed value of *** .
2.3.1 The departure airport conditions are such as to allow the required
take-off weight to be used without restriction.
The destination airport conditions are such as to allow the required
landing weight to be used without restriction.
2.3.2 An allowance of 220 lb of fuel is included for taxi at the departure
airport.
2.3.3 An allowance of 430 lb of fuel is included for take-off and climb to
1,500 ft pressure altitude with acceleration to climb speed at a
temperature of 84 (degrees) F.
2.3.4 Climb from 1,500 ft pressure altitude 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 pressure
altitude are conducted in ISA+10 (degrees) C conditions. Climb and
descent speeds below 10,000 ft will be 250 knots CAS.
2.3.5 An allowance of 200 lb of fuel is included for approach and landing at
the destination airport.
2.3.6 An allowance of 70 lb of fuel is included for taxi at the destination
airport.
2.3.7 Stage distance is defined as the distance covered during climb, cruise
and descent as described in Subparagraph 2.3.4 above.
Block Fuel is defined as the fuel burnt during taxi, take-off, climb,
cruise, descent and approach and landing as described in Subparagraphs
2.3.2 to 2.3.6 inclusive.
2.3.8 At the end of approach and landing 6,890 lb of fuel will remain in the
tanks. This represents the estimated fuel required for:
1) Missed approach
<PAGE>
A319-112
CFM 56-5B-6 ENGINES
2) Diversion consisting of climb and cruise in ISA+10 (degrees) C
conditions over a still air distance of 150 nautical miles starting at
1,500 ft pressure altitude above the destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in ISA+10
(degrees) C conditions.
2.4 The A319 Aircraft will be capable of carrying a fixed payload of 31,960
lb over a guaranteed still air stage distance of not less than *** when
operated under the conditions defined below:
2.4.1 The departure airport conditions are such as to allow the required
takeoff weight to be used without restriction.
The destination airport conditions are such as to allow the required
landing weight to be used without restriction.
2.4.2 An allowance of 220 lb of fuel is included for taxi at the departure
airport.
2.4.3 An allowance of 490 lb of fuel is included for take-off and climb to
1,500 ft pressure altitude with acceleration to climb speed in ISA+10
(degrees) C conditions.
2.4.4 Climb from 1,500 ft pressure altitude 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 pressure
altitude are conducted in ISA+10 (degrees) C conditions. Climb and
descent speeds below 10,000 ft will be 250 knots CAS.
2.4.5 An allowance of 200 lb of fuel is included for approach and landing at
the destination airport.
2.4.6 Stage distance is defined as the distance covered during climb, cruise
and descent as described in Subparagraph 2.4.4 above.
2.4.7 At the end of approach and landing 7,080 lb of fuel will remain in the
tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10 (degrees) C
conditions over a still air distance of 150 nautical miles starting
at 1,500 ft pressure altitude above the destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in ISA+10
(degrees) C conditions.
<PAGE>
A319-112
CFM 56-5B-6 ENGINES
2.5 The A319 Aircraft will be capable of carrying a fixed payload of 26,760
lb over a guaranteed still air stage distance of not less than *** when
operated under the conditions defined below:
2.5.1 The departure airport conditions are such as to allow the required
takeoff weight to be used without restriction.
The destination airport conditions are such as to allow the required
landing weight to be used without restriction.
2.5.2 An allowance of 220 lb of fuel is included for taxi at the departure
airport.
2.5.3 An allowance of 470 lb of fuel is included for take-off and climb to
1,500 ft pressure altitude with acceleration to climb speed in ISA+10
(degrees) C conditions.
2.5.4 Climb from 1,500 ft pressure altitude 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 pressure
altitude are conducted in ISA+10 (degrees) C conditions. Climb and
descent speeds below 10,000 ft will be 250 knots CAS.
2.5.5 An allowance of 200 lb of fuel is included for approach and landing at
the destination airport.
2.5.6 Stage distance is defined as the distance covered during climb, cruise
and descent as described in Subparagraph 2.5.4 above.
2.5.7 At the end of approach and landing 6,890 lb of fuel will remain in the
tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10 (degrees) C
conditions over a still air distance of 150 nautical miles starting
at 1,500 ft pressure altitude above the destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in ISA+10
(degrees) C conditions.
2.6 The mission payload guarantee defined in Subparagraph 2.1 and the mission
fuel burn guarantee defined in Subparagraph 2.3 and the mission ranges
defined in Subparagraphs 2.4 and 2.5 are based on the Buyer's
Manufacturer's Weight Empty as defined in Subparagraph 3.3 below plus a
fixed allowance of 10,730 lb for Customer Changes and Operators Items.
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The mission payload guarantee defined in Subparagraph 2.2 is based on the
Buyer's Manufacturer's Weight Empty as defined in Subparagraph 3.3 below
plus a fixed allowance of 12,230 lb for Customer Changes and Operators
Items.
3 MANUFACTURER'S WEIGHT EMPTY AND USABLE LOAD
--------------------------------------------
3.1 The Seller guarantees a Buyer's Manufacturer's Weight Empty of *** .
3.2 The Seller guarantees that the difference between the Buyer's
Manufacturer's Weight Empty and the Maximum Zero Fuel Weight will be not
less than ***
3.3 For the purposes of this Paragraph 3 and of Subparagraph 2.6 above the
Buyer's Manufacturer's Weight Empty is the Manufacturer's Weight Empty
defined in Section 13-10.00.00 of the Specification amended by the
Specification Changes defined in the Preamble to this Letter Agreement
and is subject to adjustment as defined in Subparagraph 7.2.
For information only an analysis of the Buyer's Manufacturer's Weight
Empty, Customer Changes, Operators Items and Operating Weight Empty is
shown in Appendix A to this Letter Agreement.
<PAGE>
A319-112
CFM 56-5B-6 ENGINES
4 NOISE
-----
4.1 External
--------
4.1.1 The Seller guarantees that the A319 Aircraft will be certified in
accordance with FAR Part 36 Noise Standards, issue 1988, including
Amendment 36-15, Stage 3. The applicable noise limits are as defined in
paragraphs 36.201 and c36.5 (3).
4.1.2 ***
----------------------------------
***
4.1.3 ***
--------------------------------
***
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CFM 56-5B-6 ENGINES
4.2 Internal
--------
4.2.1 Cockpit noise
-------------
At a pressure altitude of 35,000 ft and a Mach number of M=0.78 in still
air under ISA conditions, the guaranteed A-weighted Sound Pressure Level
(SPL) will not exceed *** and the Speech Interference level (SIL) will
not exceed ***.
4.2.2 Cabin noise
-----------
At a pressure altitude of 35,000 ft and a Mach number of M=0.78 in still
air under ISA conditions, the guaranteed A-Weighted Sound Pressure Level
(SPL) and the Speech Interference Level (SIL) will be as follows:
- the A-Weighted SPL will not exceed *** over the whole seating
area.
- the SIL will not exceed *** along the front 40% of the passenger
compartment and will not exceed *** along the remaining 60% of the
passenger compartment length.
4.2.3 On the ground and under the conditions defined in Subparagraph 5.9 below
the noise levels in the passenger compartment with passenger doors open
or closed the A-weighted Sound Pressure Level ("SPL") will not exceed ***
and the Speech Interference Level ("SIL") will not exceed *** .
5 GUARANTEE CONDITIONS
--------------------
5.1 The performance and noise certification requirements for the A319
Aircraft, except where otherwise noted, will be as stated in Section 02
of the Specification.
5.2 For the determination of FAR take-off and landing performance a hard
level dry runway surface with no runway strength limitations, no
obstacles, zero wind, atmosphere according to ISA, except as otherwise
noted and the use of speedbrakes,
<PAGE>
A319-112
CFM 56-5B-6 ENGINES
flaps, landing gear and engines in the conditions liable to provide the
best results will be assumed.
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 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.
5.4 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 A319 Aircraft
performance while meeting the minimum air conditioning requirements
defined above. Unless otherwise stated no air will be bled from the
engines for anti-icing.
5.5 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
unless otherwise stated.
5.6 Where applicable the Guarantees assume the use of an approved fuel having
a density of 6.7 lb/US gallon and a lower heating value of 18,590 BTU/lb.
5.7 Speech interference level (SIL) is defined as the arithmetic average of
the sound pressure levels in the 1,000, 2,000, and 4,000 Hz octave bands.
A-weighted sound level (dBA) is as defined in the American National
Standard Specification ANSI.4-1971. ***
5.8 The sound levels guaranteed in Subparagraph 4.2
i) will be measured at the positions defined in Section 03-83.10 of the
Specification
ii) refer to an A319 Aircraft with standard acoustic insulation and an
interior completely furnished. The effect on noise of Buyer Furnished
Equipment other than passenger seats will be the responsibility of
the Buyer.
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CFM 56-5B-6 ENGINES
5.9 For the purposes of the sound levels guaranteed in Subparagraph 4.2.3 the
APU and air conditioning system will be operating. Sound level
measurements may be made at the prevailing ambient temperature with the
air conditioning packs controlled to approximate air conditioning
machinery rotational speed appropriate to an ambient temperature of
25(degrees)C.
6 GUARANTEE COMPLIANCE
--------------------
6.1 Compliance with the Guarantees will be demonstrated using operating
procedures and limitations in accordance with those defined by the
certifying Airworthiness Authority and by the Seller unless otherwise
stated.
6.2 Compliance with the take-off, second segment, en-route one engine
inoperative, landing and certified 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 will be demonstrated by calculation based on data obtained
during flight tests conducted on one (or more, as agreed between the
Buyer and the Seller) A319 aircraft of the same aerodynamic configuration
as those A319 Aircraft purchased by the Buyer.
6.4 Compliance with the Manufacturer's Weight Empty and Usable Load
guarantees defined in Paragraph 3 will be demonstrated with reference to
a weight compliance report.
6.5 Compliance with the mission guarantees defined in Paragraph 2 will be
demonstrated with reference to the weight compliance report described in
Subparagraph 6.4.
6.6 Compliance with the guarantees defined in Subparagraphs 4.1.2 and 4.1.3
will be based on data collected for noise certification purposes. ***
6.7 Compliance with the noise guarantees defined in Subparagraph 4.2 will be
demonstrated with reference to noise surveys conducted on one (or more,
at the Seller's discretion) A319 aircraft of an acoustically similar
standard as the A319 Aircraft.
<PAGE>
A319-112
CFM 56-5B-6 ENGINES
6.8 Data derived from tests and noise surveys 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.
6.9 Compliance with the Guarantees is not contingent on engine performance
defined in the engine manufacturer's specification.
6.10 The Seller undertakes to furnish the Buyer with a report or reports
demonstrating compliance with the Guarantees at, or as soon as possible
after, the delivery of each of the A319 Aircraft.
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 A319 Aircraft configuration or performance or both required
to obtain certification the Guarantees will be appropriately modified to
reflect the effect of any such change.
7.2 The Guarantees apply to the A319 Aircraft as described in the Preamble to
this Letter Agreement and may be adjusted in the event of:
a) Any further configuration change which is the subject of a SCN b)
Variation in actual weights of items defined in Section 13-10 of the
Specification
c) Changes required to obtain certification which cause changes to the
performance or weight of the A319 Aircraft
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 Specification or any other
document.
9 UNDERTAKING; REMEDIES
---------------------
***
<PAGE>
A319-112
CFM 56-5B-6 ENGINES
***
UNQUOTE
- -------
In consideration of the assignment and subrogation by the Seller under
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, except
as otherwise expressly provided in Paragraph 8 of this Letter Agreement,
all the provisions of Clause 12 of the Agreement, including without
limitation the Exclusivity of Warranties and General Limitations of
Liability and Duplicate Remedies therein contained, will apply to the
foregoing performance guarantees.
<PAGE>
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ASSIGNMENT
----------
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 will be
void and of no force or effect. Notwithstanding the preceding sentence,
the terms of Subclauses 19.5 and 19.6 of the Agreement will apply to this
Letter Agreement.
<PAGE>
A319-112
CFM 56-5B-6 ENGINES
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/ Christophe Mourey
--------------------------
Its: Chief Executive Officer
--------------------------
Date: October 31, 1997
--------------------------
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
---------------------------
Its: Treasurer
---------------------------
Date: October 31, 1997
---------------------------
<PAGE>
A319-112 APPENDIX A
CFM 56-5B-6 ENGINES ----------
1 Manufacturer's Weight Empty and Operating Weight Empty
------------------------------------------------------
At the time of this Agreement the Buyer's Manufacturer's Weight Empty and
the Operating Weight Empty for the purposes of Subparagraphs 2.6 and
Paragraph 3 of this Letter Agreement are defined as follows:
Manufacturer's Weight Empty as defined in the Specification
Reference J 000.02000 Issue 3 : 79,642 lb
Specification Change for the fitting of CFM56-5B6 engines : 611 lb
Specification Change for the increase in Design Weights : 0 lb
-----------
Buyer's Manufacturer's Weight Empty according to the Preamble
-------------------------------------------------------------
of this Letter Agreement and for the purposes of Subparagraph
-------------------------------------------------------------
2.6 and Paragraph 3 of this Letter Agreement : ***
--------------------------------------------
Specification changes as defined in Subparagraph 2.1 of
this Appendix A (including USAir livery) : 1,165 lb
Operators Items as defined in Subparagraph 2.2.1 of
this Appendix A : 9,566 lb
-----------
Operating Weight Empty of the A319 Aircraft for the purposes
-------------------------------------------------------------
of Subparagraphs 2.1 and 2.3 to 2.5 inclusive of this Letter
------------------------------------------------------------
Agreement : 90,984 lb
---------
Operators items as defined in Subparagraph 2.2.2 of
this Appendix A : 11,066 lb
-----------
Operating Weight Empty of the A319 Aircraft for the purposes
------------------------------------------------------------
of Subparagraphs 2.2 of this Letter Agreement : 92,484 lb
---------------------------------------------
*Note As of the date hereof the Operating Weight Empty has not been completely
defined. The payloads, fuel burn and ranges guaranteed in Paragraph 2 are
based on the estimated Operating Weight Empty as shown above.
<PAGE>
A319-112 APPENDIX A
CFM 56-5B-6 ENGINES ----------
2 Specification Changes and Operators Items
-----------------------------------------
2.1 Weight of Specification Changes
-------------------------------
As of the date of this draft the complete list of USAir Specification
Changes is unknown.
It is estimated that the weight of such
Specification Changes is: :1,105 lb
USAir livery : 60 lb
2.2 Weights of Operators Items
--------------------------
Oil for engines and APU : 117 lb
Unusable fuel : 143 lb
Water for galleys and toilets : 441 lb
Waste tank pre-charge : 29 lb
A319 Aircraft documents and tool kits : 42 lb
Passenger seats and life jackets :3,504 lb
Phone equipment : 170 lb
Galley structure and fixed equipment :1,225 lb
Chillers : 195 lb
Catering and service equipment :1,938 lb
Cabin supplies : 180 lb
Emergency equipment : 542 lb
Crew and bags :1,040 lb
---------
2.2.1 Total Operators Items for the purposes of
Subparagraphs and 2.3 to 2.5 inclusive of
this Letter Agreement : 9,566 lb
Additional items for over water operation : 1,500 lb
----------
2.2.2 Total Operators Items for the purposes of
Subparagraph 2.2 of this Letter Agreement :11,066 lb
<PAGE>
LETTER AGREEMENT NO. 8B
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: A320-214 PERFORMANCE GUARANTEES
-------------------------------
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the "Seller"),
have entered into an Airbus A319/A320/A321 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 said Agreement. The Buyer and the Seller have agreed
to set forth in this Letter Agreement No. 8B (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 said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said 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.
The Seller, in its capacity as "Buyer" under its arrangement with the
Manufacturer, has negotiated and obtained the following performance and weight
guarantees (the "Guarantees") from the Manufacturer, in its capacity as "Seller"
with respect to the A320 Aircraft, subject to the terms, conditions, limitations
and restrictions all as hereinafter set out. The Seller hereby guarantees to the
Buyer the performance by the Manufacturer of the Manufacturer's obligations and
assigns to the Buyer and the Buyer hereby accepts, as to each A320 Aircraft
delivered to the Buyer under the Agreement, all of the rights and obligations of
the Seller with respect to such A320 Aircraft in the Seller's capacity as
"Buyer" as aforesaid under the said Guarantees and the Seller subrogates the
Buyer into all such rights and obligations in respect of such A320 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
<PAGE>
it will not enter into any amendment of the provisions so assigned or subrogated
without the prior written consent of the Buyer.
Capitalized terms used in the following quoted provisions and not otherwise
defined herein will 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 (as defined in the Agreement).
QUOTE
- -----
PREAMBLE
--------
The guarantees defined below (the "Guarantees") are applicable to the
A320 Aircraft as described in the Technical Specification D.000.02000
Issue 4 dated 30 March 1995 amended by Specification Change Notices for:
i) the fitting CFM International CFM 56-5B-4 (with Enhanced Take-Off
rating) propulsion systems
ii) the increase in the Maximum Take-Off Weight to 169,750 lb
(77,000 kg)
without taking into account any further changes thereto as provided in
the Agreement.
Notwithstanding the foregoing the Seller reserves the right to increase
the Design Weights above the weights shown in the Specification in order
to satisfy the Guarantees.
1 GUARANTEED PERFORMANCE
----------------------
1.1 Take-off
--------
1.1.1 FAR take-off field length at an A320 Aircraft gross weight of 169,750 lb
(77,000 kg) at the start of ground run at sea level pressure altitude at
a temperature of 84(degrees)F will be not more than a guaranteed value of
7,420 feet.
1.1.2 When operated under the following conditions (representative of PHX 08R):
Pressure altitude : 1,133 ft
Ambient temperature : 100(degrees)F
Take-off run available ("TOR") : 10,300 feet
Take-off distance available : 10,300 feet
<PAGE>
Accelerate-stop distance available : 10,300 feet
Slope : 0.20% uphill
Wind : Zero
Obstacles (height and distance : 15 feet/1,438 feet
from end of TOR) : 418 feet/17,285 feet
the maximum permissible weight at the start of ground run will be not
less than a guaranteed value of 166,850 lb.
1.1.3 When operated under the following conditions (representative of DEN 09):
Pressure altitude : 5,431 ft
Ambient temperature : 84(degrees)F
Take-off run available ("TOR") : 12,000 feet
Take-off distance available : 12,000 feet
Accelerate-stop distance available : 12,000 feet
Slope : 0.01% uphill
Wind : Zero
Obstacles : None
the maximum permissible weight at the start of ground run will be not
less than a guaranteed value of 165,900 lb.
1.2 Second Segment
--------------
The A320 Aircraft will meet FAR 25 regulations for one engine inoperative
climb after take-off, 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 1.1.
1.3 Initial Cruise Altitude
-----------------------
At an A320 Aircraft gross weight of 160,000 lb in ISA+10(degrees)C
conditions the pressure altitude for:
1) Level flight at a true Mach number of 0.78 using a thrust not
exceeding maximum cruise thrust
2) A rate of climb of not less than 300 ft/min at a true Mach number of
0.78 using
<PAGE>
a thrust not exceeding maximum climb thrust
3) A buffet maneuver margin of not less than 0.3g at a true Mach number
of 0.78
will be not less than a guaranteed value of 35,000 ft.
1.4 Speed
-----
Level flight speed at an A320 Aircraft gross weight of 160,000 lb at a
pressure altitude of 35,000 at in ISA+10(degrees)C conditions using a
thrust not exceeding maximum cruise thrust will be not less than a
guaranteed true Mach number of 0.790.
1.5 Specific Range
--------------
1.5.1 The nautical miles per pound of fuel at an A320 Aircraft gross weight of
155,000 lb at a pressure altitude of 35,000 ft in ISA+10(degrees)C
conditions at a true Mach number of 0.78 will be not less than a
guaranteed value of 0.0783 nm/lb.
1.5.2 The nautical miles per pound of fuel at an A320 Aircraft gross weight of
145,000 lb at a pressure altitude of 37,000 ft in ISA+10(degrees)C
conditions at a true Mach number of 0.78 will be not less than a
guaranteed value of 0.0839 nm/lb.
1.6 En-route One Engine Inoperative
-------------------------------
The A320 Aircraft will meet FAR regulations minimum en-route climb one
engine inoperative and the other operating at the maximum continuous
thrust with anti-icing off at an A320 Aircraft gross weight of 155,000 lb
in the cruise configuration in ISA+10(degrees)C conditions at a
guaranteed pressure altitude of not less than 14,500 ft.
1.7 Landing Field Length
--------------------
1.7.1 FAR certified wet landing field length at an A320 Aircraft gross weight
of 142,200 lb (64,500 kg) at sea level pressure altitude will be not
greater than 6,040 feet.
1.7.2 FAR certified wet landing field length at an A320 Aircraft gross weight
of 142,200 lb (64,500 kg) at a pressure altitude of 5,431 ft will be not
greater than 6,800 feet.
2 MISSION GUARANTEES
------------------
2.1 The A320 Aircraft will be capable of carrying a guaranteed payload of not
less than *** over a still air stage distance of 2,610 nautical miles
(representative of PHL
<PAGE>
to SFO with a 65 knot headwind) when operated under the conditions
defined below:
2.1.1 The departure airport conditions (representative of PHL 09R) are as
follows:
Pressure altitude : 21 ft
Ambient temperature : 84(degrees)F
Take-off run available ("TOR") : 10,499 feet
Take-off distance available : 10,499 feet
Accelerate-stop distance available : 10,499 feet
Slope : 0.10% downhill
Wind : Zero
Obstacles (height and distance : 17 feet/1,090 feet
from end of TOR) : 57 feet/4,306 feet
: 178 feet/9,500 feet
The destination airport conditions are such as to allow the required
landing weight to be used without restriction. Pressure altitude is 11
feet.
2.1.2 An allowance of 220 lb of fuel is included for taxi at the departure
airport.
2.1.3 An allowance of 520 lb of fuel is included for take-off and climb to
1,500 ft above the departure airport at 84(degrees)F with acceleration to
climb speed.
2.1.4 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+10(degrees)C
conditions. Climb and descent speeds below 10,000 ft will be 250 knots
CAS.
2.1.5 An allowance of 180 lb of fuel is included for approach and land at the
destination airport.
2.1.6 Stage distance is defined as the distance covered during climb, cruise
and descent as described in Subparagraph 2.1.4 above.
2.1.7 At the end of approach and land 7,210 lb of fuel will remain in the
tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degrees)C
conditions over a still air distance of 150 nautical miles starting
at 1,500 ft above the destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degrees)C conditions.
<PAGE>
2.2 The A320 Aircraft will be capable of carrying a guaranteed payload of not
less than *** over a still air stage distance of 1,545 nautical miles
(representative of STT to PHL with a 37 knot headwind) when operated
under the conditions defined below:
2.2.1 The departure airport conditions (representative of STT 10) are as
follows:
Pressure altitude : 24 ft
Ambient temperature : 84(degrees)F
Take-off run available ("TOR") : 7,000 feet
Take-off distance available : 7,000 feet
Accelerate-stop distance available : 7,000 feet
Slope : 0.20% downhill
Wind : Zero
Obstacle (height and distance : 17 feet/2,083 feet
from end of TOR)
The destination airport conditions are such as to allow the required
landing weight to be used without restriction. Pressure altitude is 21
feet.
2.2.2 An allowance of 220 lb of fuel is included for taxi at the departure
airport.
2.2.3 An allowance of 500 lb of fuel is included for take-off and climb to
1,500 ft above the departure airport at 84(degrees)F with acceleration to
climb speed.
2.2.4 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(degrees)C conditions. Climb
and descent speeds below 10,000 ft will be 250 knots CAS.
2.2.5 An allowance of 190 lb of fuel is included for approach and land at the
destination airport.
2.2.6 Stage distance is defined as the distance covered during climb, cruise
and descent as described in Subparagraph 2.2.4 above.
2.2.7 At the end of approach and land 7,500 lb of fuel will remain in the
tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degrees)C
conditions over a still air
<PAGE>
distance of 150 nautical miles starting at 1,500 ft above the
destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degrees)C conditions.
2.3 In carrying a fixed payload of 31,665 lb over a still air stage distance
of 2,000 nautical miles when operated under the conditions defined below
the Block Fuel will be not more than a guaranteed value of *** .
2.3.1 The departure airport conditions are such as to allow the required
takeoff weight to be used without restriction.
The destination airport conditions are such as to allow the required
landing weight to be used without restriction.
2.3.2 An allowance of 220 lb of fuel is included for taxi at the departure
airport.
2.3.3 An allowance of 470 lb of fuel is included for take-off and climb to
1,500 ft pressure altitude with acceleration to climb speed at a
temperature of 84(degrees)F.
2.3.4 Climb from 1,500 ft pressure altitude 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 pressure altitude are
conducted in ISA+10(degrees)C conditions. Climb and descent speeds below
10,000 ft will be 250 knots CAS.
2.3.5 An allowance of 190 lb of fuel is included for approach and landing at
the destination airport.
2.3.6 An allowance of 70 lb of fuel is included for taxi at the destination
airport.
2.3.7 Stage distance is defined as the distance covered during climb, cruise
and descent as described in Subparagraph 2.3.4 above.
Block Fuel is defined as the fuel burnt during taxi, take-off, climb,
cruise, descent and approach and landing as described in Subparagraphs
2.3.2 to 2.3.6 inclusive.
2.3.8 At the end of approach and landing 7,190 lb of fuel will remain in the
tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degrees)C
conditions over a still air distance of 150 nautical miles starting
at 1,500 ft pressure altitude.
<PAGE>
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degrees)C conditions.
2.4 The A320 Aircraft will be capable of carrying a fixed payload of 38,700
lb over a guaranteed still air stage distance of not less than *** when
operated under the conditions defined below:
2.4.1 The departure airport conditions are such as to allow the required
takeoff weight to be used without restriction.
The destination airport conditions are such as to allow the required
landing weight to be used without restriction.
2.4.2 An allowance of 220 lb of fuel is included for taxi at the departure
airport.
2.4.3 An allowance of 510 lb of fuel is included for take-off and climb to
1,500 ft pressure altitude with acceleration to climb speed in
ISA+10(degrees)C conditions.
2.4.4 Climb from 1,500 ft pressure altitude up to cruise altitude using maximum
climb thrust and cruise at a fixed Mach number of 0.78 at a pressure
altitudes of 35,000 ft and descent to 1,500 ft pressure altitude are
conducted in ISA+10(degrees)C conditions. Climb and descent speeds below
10,000 ft will be 250 knots CAS.
2.4.5 An allowance of 190 lb of fuel is included for approach and landing at
the destination airport.
2.4.6 Stage distance is defined as the distance covered during climb, cruise
and descent as described in Subparagraph 2.4.4 above.
2.4.7 At the end of approach and landing 7,490 lb of fuel will remain in the
tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degrees)C
conditions over a still air distance of 150 nautical miles starting
at 1,500 ft pressure altitude above the destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degrees)C conditions.
2.5 The A320 Aircraft will be capable of carrying a fixed payload of 31,665
lb over a guaranteed still air stage distance of not less than *** when
operated under the conditions defined below:
<PAGE>
2.5.1 The departure airport conditions are such as to allow the required
takeoff weight to be used without restriction.
The destination airport conditions are such as to allow the required
landing weight to be used without restriction.
2.5.2 An allowance of 220 lb of fuel is included for taxi at the departure
airport.
2.5.3 An allowance of 500 lb of fuel is included for take-off and climb to
1,500 ft pressure altitude with acceleration to climb speed in
ISA+10(degrees)C conditions.
2.5.4 Climb from 1,500 ft pressure altitude 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 pressure altitude are
conducted in ISA+10(degrees)C conditions. Climb and descent speeds below
10,000 ft will be 250 knots CAS.
2.5.5 An allowance of 190 lb of fuel is included for approach and landing at
the destination airport.
2.5.6 Stage distance is defined as the distance covered during climb, cruise
and descent as described in Subparagraph 2.5.4 above.
2.5.7 At the end of approach and landing 7,190 lb of fuel will remain in the
tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degrees)C
conditions over a still air distance of 150 nautical miles starting
at 1,500 ft pressure altitude above the destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degrees)C conditions.
2.6 The mission payload guarantee defined in Subparagraph 2.1 and the mission
fuel burn guarantee defined in Subparagraph 2.3 and the mission range
guarantees defined in Subparagraphs 2.4 and 2.5 are based on the Buyer's
Manufacturer's Weight Empty as defined in Subparagraph 3.3 below plus a
fixed allowance of 11,970 lb for Customer Changes and Operators Items.
The mission payload guarantee defined in Subparagraph 2.2 is based on the
Buyer's Manufacturer's Weight Empty as defined in Subparagraph 3.3 below
plus a fixed allowance of 13,470 lb for Customer Changes and Operators
Items.
<PAGE>
3 MANUFACTURER'S WEIGHT EMPTY AND USABLE LOAD
--------------------------------------------
3.1 The Seller guarantees a Buyer's Manufacturer's Weight Empty of *** .
3.2 The Seller guarantees that the difference between the Buyer's
Manufacturer's Weight Empty and the Maximum Zero Fuel Weight will be not
less than ***.
3.3 For the purposes of this Paragraph 3 and of Subparagraph 2.6 above the
Buyer's Manufacturer's Weight Empty is the Manufacturer's Weight Empty
defined in Section 13-10.00.00 of the Specification amended by the
Specification Changes defined in the Preamble to this Letter Agreement
and is subject to adjustment as defined in Subparagraph 7.2.
For information only an analysis of the Buyer's Manufacturer's Weight
Empty, Customer Changes, Operators Items and Operating Weight Empty is
shown in Appendix A to this Letter Agreement.
4 NOISE
-----
4.1 External
--------
4.1.1 The Seller guarantees that the A320 Aircraft will be certified in
accordance with FAR Part 36 Noise Standards, issue 1978, including
Amendment 36-15, Stage 3. The applicable noise limits are as defined in
paragraphs 36.201 and c36.5 (3).
4.1.2 ***
--------------------------------
***
<PAGE>
4.1.3 ***
--------------------------------
***
4.2 Internal
--------
4.2.1 Cockpit noise
-------------
At a pressure altitude of 35,000 ft and a Mach number of M=0.78 in still
air under ISA conditions, the guaranteed A-Weighted Sound Pressure Level
(SPL) will not exceed *** and the Speech Interference Level (SIL) will
not exceed *** .
4.2.2 Cabin noise
-----------
At a pressure altitude of 35,000 ft and a Mach number of M=0.78 in still
air under ISA conditions, the guaranteed A-Weighted Sound Pressure Level
(SPL) and the Speech Interference Level (SIL) will be as follows:
- the A-Weighted SPL will not exceed *** over the whole seating
area.
- the SIL will not exceed *** along the front 40% of the passenger
compartment and will not exceed *** along the remaining 60% of the
passenger compartment length.
4.2.3 On the ground and under the conditions defined in Subparagraph 5.9 below
the noise levels in the passenger compartment with passenger doors open
or closed the A-weighted Sound Pressure Level ("SPL") will not exceed ***
and the Speech Interference Level ("SIL") will not exceed *** .
5 GUARANTEE CONDITIONS
--------------------
5.1 The performance and noise certification requirements for the A320
Aircraft, except where otherwise noted, will be as stated in Section 02
of the Specification.
5.2 For the determination of FAR take-off and landing performance a hard
level dry runway surface with no runway strength limitations, no
obstacles, zero wind, atmosphere according to ISA, except as otherwise
noted and the use of speedbrakes, flaps, landing gear and engines in the
conditions liable to provide the best results will be assumed.
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 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.
5.4 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 A320 Aircraft
performance while meeting the minimum air conditioning requirements
defined above. Unless otherwise stated no air will be bled from the
engines for anti-icing.
5.5 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
unless otherwise stated.
5.6 Where applicable the Guarantees assume the use of an approved fuel having
a density of 6.7 lb/US gallon and a lower heating value of 18,590 BTU/lb.
5.7 Speech interference level (SIL) is defined as the arithmetic average of
the sound pressure levels in the 1,000, 2,000, and 4,000 Hz octave bands.
A-weighted sound level (dBA) is as defined in the American National
Standard Specification ANSI.4-1971. ***
<PAGE>
5.8 The sound levels guaranteed in Subparagraph 4.2:
i) will be measured at the positions defined in Section 03-83.10 of the
Specification
ii) refer to an A320 Aircraft with standard acoustic insulation and an
interior completely furnished. The effect on noise of Buyer
Furnished Equipment other than passenger seats will be the
responsibility of the Buyer.
5.9 For the purposes of the sound levels guaranteed in Subparagraph 4.2.3 the
APU and air conditioning system will be operating. Sound level
measurements may be made at the prevailing ambient temperature with the
air conditioning packs controlled to approximate air conditioning
machinery rotational speed appropriate to an ambient temperature of
25(degrees)C.
6 GUARANTEE COMPLIANCE
--------------------
6.1 Compliance with the Guarantees will be demonstrated using operating
procedures and limitations in accordance with those defined by the
certifying Airworthiness Authority and by the Seller unless otherwise
stated.
6.2 Compliance with the take-off, second segment, en-route one engine
inoperative, landing and certified 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 will be demonstrated by calculation based on data obtained
during flight tests conducted on one (or more, as agreed between the
buyer and the Seller) A320 aircraft of the same aerodynamic configuration
as those A320 Aircraft purchased by the Buyer.
6.4 Compliance with the Manufacturer's Weight Empty and Usable Load
guarantees defined in Paragraph 3 will be demonstrated with reference to
a weight compliance report.
6.5 Compliance with the mission guarantees defined in Paragraph 2 will be
demonstrated with reference to the weight compliance report described in
Subparagraph 6.4.
6.6 Compliance with the guarantees defined in Subparagraphs 4.1.2 and 4.1.3
will be based on data collected for noise certification purposes. ***
<PAGE>
6.7 Compliance with the noise guarantees defined in Subparagraph 4.2 will be
demonstrated with reference to noise surveys conducted on one (or more,
at the Seller's discretion) A320 aircraft of an acoustically similar
standard as the A320 Aircraft.
6.8 Data derived from tests and noise surveys 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.
6.9 Compliance with the Guarantees is not contingent on engine performance
defined in the engine manufacturer's specification.
6.10 The Seller undertakes to furnish the Buyer with a report or reports
demonstrating compliance with the Guarantees at, or as soon as possible
after, the delivery of each of the A320 Aircraft.
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 A320 Aircraft configuration or performance or both required
to obtain certification the Guarantees will be appropriately modified to
reflect the effect of any such change.
7.2 The Guarantees apply to the A320 Aircraft as described in the Preamble to
this Letter Agreement and may be adjusted in the event of:
a) Any further configuration change which is the subject of a SCN
b) Variation in actual weights of items defined in Section 13-10 of the
Specification
c) Changes required to obtain certification which cause changes to the
performance or weight of the A320 Aircraft
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 Specification or any other
document.
<PAGE>
9 UNDERTAKING; REMEDIES
---------------------
***
UNQUOTE
- -------
In consideration of the assignment and subrogation by the Seller under
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, except
as otherwise expressly provided in Paragraph 8 of this Letter Agreement,
all the provisions of Clause 12 of the Agreement, including without
limitation the Exclusivity of Warranties and General Limitations of
Liability and Duplicate Remedies therein contained, will apply to the
foregoing performance guarantees.
ASSIGNMENT
----------
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 will be
void and of no force or effect. Notwithstanding the preceding sentence,
the terms of Subclauses 19.5 and 19.6 of the Agreement will apply to this
Letter Agreement.
<PAGE>
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/ Christophe Mourey
--------------------------
Its: Chief Executive Officer
--------------------------
Date: October 31, 1997
--------------------------
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
---------------------------
Its: Treasurer
----------------------------
Date: October 31, 1997
---------------------------
<PAGE>
APPENDIX A
----------
1 Manufacturer's Weight Empty and Operating Weight Empty
------------------------------------------------------
At the time of this Agreement the Buyer's Manufacturer's Weight Empty and
the Operating Weight Empty for the purposes of Subparagraph 2.6 and
Paragraph 3 of this Letter Agreement are defined as follows:
Manufacturer's Weight Empty as defined in the Specification
Reference D 000.02000 Issue 4 :81,966 lb
Specification Change for the fitting of CFM56-5B4 engines : 582 lb
Specification Change for the increase in Design Weights : 220 lb
----------
Buyer's Manufacturer's Weight Empty according to the Preamble
-------------------------------------------------------------
of this Letter Agreement and for the purposes of Subparagraph
-------------------------------------------------------------
2.6 and Paragraph 3 of this Letter Agreement : ***
--------------------------------------------
Specification changes as defined in Subparagraph 2.1 of
this Appendix A (including USAir livery) : 1,197 lb
Operators Items as defined in Subparagraph 2.2.1 of
this Appendix A :10,776 lb
----------
Operating Weight Empty of the A320 Aircraft for the purposes
------------------------------------------------------------
of Subparagraphs 2.1 and 2.3 to 2.5 inclusive of this Letter
------------------------------------------------------------
Agreement :94,741 lb
---------
Operators items as defined in Subparagraph 2.2.2 of
this Appendix A :11,276 lb
----------
Operating Weight Empty of the A320 Aircraft for the purposes
------------------------------------------------------------
of Subparagraphs 2.2 of this Letter Agreement :96,241 lb
---------------------------------------------
*Note As of the date hereof the Operating Weight Empty has not been completely
defined. The payloads, fuel burn and ranges guaranteed in Paragraph 2 are
based on the estimated Operating Weight Empty as shown above.
<PAGE>
A320-214 APPENDIX A
CFM 56-5B-4 ENGINES ----------
2 Specification Changes and Operators Items
-----------------------------------------
2.1 Weight of Specification Changes
-------------------------------
As of the date of this draft the complete list of USAir Specification
Changes is unknown.
It is estimated that the weight of such
Specification Changes is: :1,137 lb
USAir livery : 60 lb
2.2 Weights of Operators Items
--------------------------
Oil for engines and APU : 117 lb
Unusable fuel : 143 lb
Water for galleys and toilets : 441 lb
Waste tank pre-charge : 29 lb
A320 Aircraft documents and tool kits : 42 lb
Passenger seats and life jackets :4,216 lb
Phone equipment : 170 lb
Galley structure and fixed equipment :1,265 lb
Chillers : 195 lb
Catering and service equipment :2,354 lb
Cabin supplies : 213 lb
Emergency equipment : 551 lb
Crew and bags :1,040 lb
---------
2.2.1 Total Operators Items for the purposes of Subparagraphs 2.1 and 2.3 to
2.5 inclusive
of this Letter Agreement :10,776 lb
Additional items for over water operation : 1,500 lb
---------
2.2.2 Total Operators Items for the purposes of
Subparagraph 2.2 of this Letter Agreement :12,276 lb
<PAGE>
A321-211
CFM 56-5B-3 ENGINES
LETTER AGREEMENT NO. 8C
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: A321-211 PERFORMANCE GUARANTEES
-------------------------------
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the "Seller"),
have entered into an Airbus A319/A320/A321 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 said Agreement. The Buyer and the Seller have agreed
to set forth in this Letter Agreement No. 8C (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 said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said 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.
The Seller, in its capacity as "Buyer" under its arrangement with the
Manufacturer, has negotiated and obtained the following performance and weight
guarantees (the "Guarantees") from the Manufacturer, in its capacity as "Seller"
with respect to the A321 Aircraft, subject to the terms, conditions, limitations
and restrictions all as hereinafter set out. The Seller hereby guarantees to the
Buyer the performance by the Manufacturer of the Manufacturer's obligations and
assigns to the Buyer and the Buyer hereby accepts, as to each A321 Aircraft
delivered to the Buyer under the Agreement, all of the rights and obligations of
the Seller with respect to such A321 Aircraft in the Seller's capacity as
"Buyer" as aforesaid under the said Guarantees and the
<PAGE>
A321-211
CFM 56-5B-3 ENGINES
Seller subrogates the Buyer into all such rights and obligations in respect of
such A321 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 or subrogated without the prior written
consent of the Buyer.
Capitalized terms used in the following quoted provisions and not
otherwise defined herein will 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 (as defined in the Agreement).
QUOTE
- -----
PREAMBLE
--------
The guarantees defined below (the "Guarantees") are applicable to the
A321 Aircraft as described in the Technical Specification E.000.02000
Issue 1 dated 30 June 1995 and fitted with CFM International CFM 56-5B-3
propulsion systems without taking into account any further changes
thereto as provided in the Agreement.
Notwithstanding the foregoing the Seller reserves the right to increase
the Design Weights above the weights shown in the Specification in order
to satisfy the Guarantees.
1 GUARANTEED PERFORMANCE
----------------------
1.1 Take-off
--------
1.1.1 FAR take-off field length at an A321 Aircraft gross weight of 196,210 lb
(89,000 kg) at the start of ground run at sea level pressure altitude at
a temperature of 84(degrees)F will be not more than a guaranteed value of
8,090 feet.
1.1.2 When operated under the following conditions (representative of PHX 08R):
Pressure altitude : 1,133 ft
Ambient temperature : 100 degrees F
Take-off run available ("TOR") : 10,300 feet
Take-off distance available : 10,300 feet
Accelerate-stop distance available : 10,300 feet
Slope : 0.20% uphill
Wind : Zero
<PAGE>
A321-211
CFM 56-5B-3 ENGINES
Obstacles (height and distance : 15 feet/1,438 feet
from end of TOR) : 418 feet/17,285 feet
the maximum permissible weight at the start of ground run will be not
less than a guaranteed value of 180,300 lb.
1.1.3 When operated under the following conditions (representative of DEN 09):
Pressure altitude : 5,431 ft
Ambient temperature : 84(degrees)F
Take-off run available ("TOR") : 12,000 feet
Take-off distance available : 12,000 feet
Accelerate-stop distance available : 12,000 feet
Slope : 0.01% uphill
Wind : Zero
Obstacles : None
the maximum permissible weight at the start of ground run will be not
less than a guaranteed value of 176,400 lb.
1.2 Second Segment
--------------
The A321 Aircraft will meet FAR 25 regulations for one engine inoperative
climb after take-off, 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 1.1.
1.3 Initial Cruise Altitude
-----------------------
At an A321 Aircraft gross weight of 185,000 lb in ISA+10(degrees)C
conditions the pressure altitude for:
1) Level flight at a true Mach number of 0.78 using a thrust not
exceeding maximum cruise thrust
2) A rate of climb of not less than 300 ft/min at a true Mach number of
0.78 using a thrust not exceeding maximum climb thrust
3) A buffet maneuver margin of not less than 0.3g at a true Mach number
of 0.78
<PAGE>
A321-211
CFM 56-5B-3 ENGINES
will be not less than a guaranteed value of 33,000 ft.
1.4 Speed
-----
Level flight speed at an A321 Aircraft gross weight of 185,000 lb at a
pressure altitude of 33,000 ft in ISA+10(degrees)C conditions using a
thrust not exceeding maximum cruise thrust will be not less than a
guaranteed true Mach number of 0.790.
1.5 Specific Range
--------------
1.5.1 The nautical miles per pound of fuel at an A321 Aircraft gross weight of
170,000 lb at a pressure altitude of 35,000 ft in ISA+10(degrees)C
conditions at a true Mach number of 0.78 will be not less than a
guaranteed value of 0.0702 nm/lb.
1.5.2 The nautical miles per pound of fuel at an A321 Aircraft gross weight of
160,000 lb at a pressure altitude of 37,000 ft in ISA+10(degrees)C
conditions at a true Mach number of 0.78 will be not less than a
guaranteed value of 0.0741 nm/lb.
1.6 En-route One Engine Inoperative
-------------------------------
The A321 Aircraft will meet FAR regulations minimum en-route climb one
engine inoperative and the other operating at the maximum continuous
thrust with anti-icing off at an A321 Aircraft gross weight of 170,000 lb
in the cruise configuration in ISA+10(degrees)C conditions at a
guaranteed pressure altitude of not less than 15,000 ft.
1.7 Landing Field Length
--------------------
1.7.1 FAR certified wet landing field length at an A321 Aircraft gross weight
of 166,450 lb (75,500 kg) at sea level pressure altitude will be not
greater than 6,270 feet.
1.7.2 FAR certified wet landing field length at an A321 Aircraft gross weight
of 166,450 lb (75,500 kg) at a pressure altitude of 5,431 ft will be not
greater than 7,100 feet.
2 MISSION GUARANTEES
------------------
2.1 The A321 Aircraft will be capable of carrying a guaranteed payload of
not less than *** over a still air stage distance of 2,610 nautical
miles
(representative of PHL to SFO with a 65 knot headwind) when operated
under the conditions defined below:
<PAGE>
A321-211
CFM 56-5B-3 ENGINES
2.1.1 The departure airport conditions (representative of PHL 09R) are as
follows:
Pressure altitude : 21 ft
Ambient temperature : 84(degrees)F
Take-off run available ("TOR") : 10,499 feet
Take-off distance available : 10,499 feet
Accelerate-stop distance available : 10,499 feet
Slope : 0.10% downhill
Wind : Zero
Obstacles (height and distance : 17 feet/1,090 feet
from end of TOR) : 57 feet/4,306 feet
: 178 feet/9,500 feet
The destination airport conditions are such as to allow the required
landing weight to be used without restriction. Pressure altitude is 11
feet.
2.1.2 An allowance of 220 lb of fuel is included for taxi at the departure
airport.
2.1.3 An allowance of 530 lb of fuel is included for take-off and climb to
1,500 ft above the departure airport at 84(degrees)F with acceleration to
climb speed.
2.1.4 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+10(degrees)C
conditions. Climb and descent speeds below 10,000 ft will be 250 knots
CAS.
2.1.5 An allowance of 230 lb of fuel is included for approach and land at the
destination airport.
2.1.6 Stage distance is defined as the distance covered during climb, cruise
and descent as described in Subparagraph 2.1.4 above.
2.1.7 At the end of approach and land 7,370 lb of fuel will remain in the
tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degrees)C
conditions over a still air distance of 150 nautical miles starting
at 1,500 ft above the destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degrees)C conditions.
<PAGE>
A321-211
CFM 56-5B-3 ENGINES
2.2 The A321 Aircraft will be capable of carrying a guaranteed payload of
not less than *** over a still air stage distance of 1,545 nautical
miles
(representative of STT to PHL with a 37 knot headwind) when operated
under the conditions defined below:
2.2.1 The departure airport conditions (representative of STT 10) are as
follows:
Pressure altitude : 24 ft
Ambient temperature : 84(degrees)F
Take-off run available ("TOR") : 7,000 feet
Take-off distance available : 7,000 feet
Accelerate-stop distance available : 7,000 feet
Slope : 0.20% downhill
Wind : Zero
Obstacle (height and distance : 17 feet/2,083 feet
from end of TOR)
The destination airport conditions are such as to allow the required
landing weight to be used without restriction. Pressure altitude is 21
feet.
2.2.2 An allowance of 220 lb of fuel is included for taxi at the departure
airport.
2.2.3 An allowance of 670 lb of fuel is included for take-off and climb to
1,500 ft above the departure airport at 84(degrees)F with acceleration to
climb speed.
2.2.4 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 31,000 ft and 35,000 ft and descent to 1,500 ft
above the destination airport are conducted in ISA+10(degrees)C
conditions. Climb and descent speeds below 10,000 ft will be 250 knots
CAS.
2.2.5 An allowance of 270 lb of fuel is included for approach and land at the
destination airport.
2.2.6 Stage distance is defined as the distance covered during climb, cruise
and descent as described in Subparagraph 2.2.4 above.
2.2.7 At the end of approach and land 8,760 lb of fuel will remain in the
tanks. This represents the estimated fuel required for:
1) Missed approach
<PAGE>
A321-211
CFM 56-5B-3 ENGINES
2) Diversion consisting of climb and cruise in ISA+10(degrees)C
conditions over a still air distance of 150 nautical miles starting
at 1,500 ft above the destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degrees)C conditions.
2.3 In carrying a fixed payload of 37,690 lb over a still air stage distance
of 2,000 nautical miles when operated under the conditions defined below
the Block Fuel will be not more than a guaranteed value of ***
2.3.1 The departure airport conditions are such as to allow the required
takeoff weight to be used without restriction.
The destination airport conditions are such as to allow the required
landing weight to be used without restriction.
2.3.2 An allowance of 220 lb of fuel is included for taxi at the departure
airport.
2.3.3 An allowance of 630 lb of fuel is included for take-off and climb to
1,500 ft pressure altitude with acceleration to climb speed at a
temperature of 84(degrees)F.
2.3.4 Climb from 1,500 ft pressure altitude 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 pressure altitude are
conducted in ISA+10(degrees)C conditions. Climb and descent speeds below
10,000 ft will be 250 knots CAS.
2.3.5 An allowance of 260 lb of fuel is included for approach and landing at
the destination airport.
2.3.6 An allowance of 70 lb of fuel is included for taxi at the destination
airport.
2.3.7 Stage distance is defined as the distance covered during climb, cruise
and descent as described in Subparagraph 2.3.4 above.
Block Fuel is defined as the fuel burnt during taxi, take-off, climb,
cruise, descent and approach and landing as described in Subparagraphs
2.3.2 to 2.3.6 inclusive.
2.3.8 At the end of approach and landing 8,300 lb of fuel will remain in the
tanks. This represents the estimated fuel required for:
1) Missed approach
<PAGE>
A321-211
CFM 56-5B-3 ENGINES
2) Diversion consisting of climb and cruise in ISA+10(degrees)C
conditions over a still air distance of 150 nautical miles starting
at 1,500 ft pressure altitude.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degrees)C conditions.
2.4 The A321 Aircraft will be capable of carrying a fixed payload of 48,750
lb over a guaranteed still air stage distance of not less than *** when
operated under the conditions defined below:
2.4.1 The departure airport conditions are such as to allow the required
takeoff weight to be used without restriction.
The destination airport conditions are such as to allow the required
landing weight to be used without restriction.
2.4.2 An allowance of 220 lb of fuel is included for taxi at the departure
airport.
2.4.3 An allowance of 680 lb of fuel is included for take-off and climb to
1,500 ft pressure altitude with acceleration to climb speed in
ISA+10(degrees)C conditions.
2.4.4 Climb from 1,500 ft pressure altitude up to cruise altitude using maximum
climb thrust and cruise at a fixed Mach number of 0.78 at pressure
altitudes of 31,000 ft and 35,000 ft and descent to 1,500 ft pressure
altitude are conducted in ISA+10(degrees)C conditions. Climb and descent
speeds below 10,000 ft will be 250 knots CAS.
2.4.5 An allowance of 260 lb of fuel is included for approach and landing at
the destination airport.
2.4.6 Stage distance is defined as the distance covered during climb, cruise
and descent as described in Subparagraph 2.4.4 above.
2.4.7 At the end of approach and landing 8,790 lb of fuel will remain in the
tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degrees)C
conditions over a still air distance of 150 nautical miles starting
at 1,500 ft pressure altitude above the destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degrees)C conditions.
2.5 The A321 Aircraft will be capable of carrying a fixed payload of 37,690
lb over a
<PAGE>
A321-211
CFM 56-5B-3 ENGINES
guaranteed still air stage distance of not less than *** when operated
under the conditions defined below:
2.5.1 The departure airport conditions are such as to allow the required
takeoff weight to be used without restriction.
The destination airport conditions are such as to allow the required
landing weight to be used without restriction.
2.5.2 An allowance of 220 lb of fuel is included for taxi at the departure
airport.
2.5.3 An allowance of 640 lb of fuel is included for take-off and climb to
1,500 ft pressure altitude with acceleration to climb speed in
ISA+10(degrees)C conditions.
2.5.4 Climb from 1,500 ft pressure altitude 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 pressure altitude are
conducted in ISA+10(degrees)C conditions. Climb and descent speeds below
10,000 ft will be 250 knots CAS.
2.5.5 An allowance of 260 lb of fuel is included for approach and landing at
the destination airport.
2.5.6 Stage distance is defined as the distance covered during climb, cruise
and descent as described in Subparagraph 2.5.4 above.
2.5.7 At the end of approach and landing 8,300 lb of fuel will remain in the
tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degrees)C
conditions over a still air distance of 150 nautical miles starting
at 1,500 ft pressure altitude above the destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degrees)C conditions.
2.6 The mission payload guarantee defined in Subparagraph 2.1 and the mission
fuel burn guarantee defined in Subparagraph 2.3 and the mission range
guarantees defined in Subparagraphs 2.3 and 2.4 are based on the Buyer's
Manufacturer's Weight Empty as defined in Subparagraph 3.3 below plus a
fixed allowance of 14,370 lb for Customer Changes and Operators Items.
The mission payload guarantee defined in Subparagraph 2.2 is based on the
Buyer's Manufacturer's Weight Empty as defined in Subparagraph 3.3 below
plus a fixed
<PAGE>
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CFM 56-5B-3 ENGINES
allowance of 15,870 lb for Customer Changes and Operators Items.
3 MANUFACTURER'S WEIGHT EMPTY AND USABLE LOAD
--------------------------------------------
3.1 The Seller guarantees a Buyer's Manufacturer's Weight Empty of
*** .
3.2 The Seller guarantees that the difference between the Buyer's
Manufacturer's Weight Empty and the Maximum Zero Fuel Weight will be not
less than ***
.
3.3 For the purposes of this Paragraph 3 and of Subparagraph 2.6 above the
Buyer's Manufacturer's Weight Empty is the Manufacturer's Weight Empty
defined in Section 13-10.00.00 of the Specification and is subject to
adjustment as defined in Subparagraph 7.2.
For information only an analysis of the Buyer's Manufacturer's Weight
Empty, Customer Changes, Operators Items and Operating Weight Empty is
shown in Appendix A to this Letter Agreement.
4 NOISE
-----
4.1 External
--------
4.1.1 The Seller guarantees that the A321 Aircraft will be certified in
accordance with FAR Part 36 Noise Standards, issue 1978, including
Amendment 36-15 Stage 3. The applicable noise limits are as defined in
paragraphs 36.201 and c36.5 (3).
<PAGE>
A321-211
CFM 56-5B-3 ENGINES
4.1.2 ***
-------------------------------
***
4.1.3 ***
-------------------------------
***
4.1.4 John Wayne - Orange County (SNA)
--------------------------------
The Seller guarantees that the noise levels of the A321 Aircraft taking
off at John Wayne - Orange County ("SNA"):
i) at take-off weights of 152,110 lb (69,000 kg) or less will not exceed
the AA-SLOT noise level limit and
ii) at take-off weights of 143,300 lb (65,000 kg) or less will not exceed
the E-SLOT noise level limit.
4.2 Internal
--------
4.2.1 Cockpit noise
-------------
At a pressure altitude of 35,000 ft and a Mach number of M=0.78 in still
air under ISA conditions, the guaranteed A-Weighted Sound Pressure Level
(SPL) will not exceed *** and the Speech Interference Level (SIL) will
not exceed ***.
4.2.2 Cabin noise
-----------
At a pressure altitude of 35,000 ft and a Mach number of M=0.78 in still
air under ISA conditions, the guaranteed A-Weighted Sound Pressure Level
(SPL) and the Speech
<PAGE>
A321-211
CFM 56-5B-3 ENGINES
Interference Level (SIL) will be as follows:
- the A-Weighted SPL will *** over the whole
seating area.
- the SIL will not exceed *** along the front 40% of the passenger
compartment and will not exceed *** along the remaining 60% of the
passenger compartment length.
4.2.3 On the ground and under the conditions defined in Subparagraph 5.9 below
the noise levels in the passenger compartment with passenger doors open
or closed the A-weighted Sound Pressure Level ("SPL") will not exceed ***
and the Speech Interference Level ("SIL") will not
exceed ***.
5 GUARANTEE CONDITIONS
--------------------
5.1 The performance and noise certification requirements for the A321
Aircraft, except where otherwise noted, will be as stated in Section 02
of the Specification.
5.2 For the determination of FAR take-off and landing performance a hard
level dry runway surface with no runway strength limitations, no
obstacles, zero wind, atmosphere according to ISA, except as otherwise
noted and the use of speedbrakes, flaps, landing gear and engines in the
conditions liable to provide the best results will be assumed.
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 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.
5.4 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 A321 Aircraft
performance while meeting the minimum air conditioning requirements
defined above. Unless otherwise stated no air will be bled from the
engines for anti-icing.
<PAGE>
A321-211
CFM 56-5B-3 ENGINES
5.5 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
unless otherwise stated.
5.6 Where applicable the Guarantees assume the use of an approved fuel having
a density of 6.7 lb/US gallon and a lower heating value of 18,590 BTU/lb.
5.7 Speech interference level (SIL) is defined as the arithmetic average of
the sound pressure levels in the 1,000, 2,000, and 4,000 Hz octave bands.
A-weighted sound level (dBA) is as defined in the American National
Standard Specification ANSI.4-1971. ***
5.8 The sound levels guaranteed in Subparagraph 4.2:
i) will be measured at the positions defined in Section 03-83.10 of the
Specification
ii) refer to an A321 Aircraft with standard acoustic insulation and an
interior completely furnished. The effect on noise of Buyer Furnished
Equipment other than passenger seats will be the responsibility of
the Buyer.
5.9 For the purposes of the sound levels guaranteed in Subparagraph 4.2.3 the
APU and air conditioning system will be operating. Sound level
measurements may be made at the prevailing ambient temperature with the
air conditioning packs controlled to approximate air conditioning
machinery rotational speed appropriate to an ambient temperature of
25(degrees)C.
6 GUARANTEE COMPLIANCE
--------------------
6.1 Compliance with the Guarantees will be demonstrated using operating
procedures and limitations in accordance with those defined by the
certifying Airworthiness Authority and by the Seller unless otherwise
stated.
6.2 Compliance with the take-off, second segment, en-route one engine
inoperative, landing abd certified 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 will be demonstrated by calculation based on data obtained
during flight tests conducted on one (or more, as agreed between the
Buyer and the Seller) A321 aircraft of the same aerodynamic configuration
as those A321 Aircraft purchased by the Buyer.
<PAGE>
A321-211
CFM 56-5B-3 ENGINES
6.4 Compliance with the Manufacturer's Weight Empty and Usable Load
guarantees defined in Paragraph 3 will be demonstrated with reference to
a weight compliance report.
6.5 Compliance with the mission guarantees defined in Paragraph 2 will be
demonstrated with reference to the weight compliance report described in
Subparagraph 6.4.
6.6 Compliance with the guarantees defined in Subparagraphs 4.1.2 and 4.1.3
will be based on data collected for noise certification purposes. ***.
6.7 Compliance with the noise guarantees defined in Subparagraph 4.2 will be
demonstrated with reference to noise surveys conducted on one (or more,
at the Seller's discretion) A321 aircraft of an acoustically similar
standard as the A321 Aircraft.
6.8 Data derived from tests and noise surveys 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.
6.9 Compliance with the Guarantees is not contingent on engine performance
defined in the engine manufacturer's specification.
6.10 The Seller undertakes to furnish the Buyer with a report or reports
demonstrating compliance with the Guarantees at, or as soon as possible
after, the delivery of each of the A321 Aircraft.
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 A321 Aircraft configuration or performance or both required
to obtain certification the Guarantees will be appropriately modified to
reflect the effect of any such change.
7.2 The Guarantees apply to the A321 Aircraft as described in the Preamble to
this Letter Agreement and may be adjusted in the event of:
a) Any further configuration change which is the subject of a SCN
b) Variation in actual weights of items defined in Section 13-10 of the
Specification
c) Changes required to obtain certification which cause changes to the
performance or weight of the A321 Aircraft
<PAGE>
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CFM 56-5B-3 ENGINES
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 Specification or any other
document.
9 UNDERTAKING; REMEDIES
---------------------
***
<PAGE>
A321-211
CFM 56-5B-3 ENGINES
UNQUOTE
-------
In consideration of the assignment and subrogation by the Seller under
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, except
as otherwise expressly provided in Paragraph 8 of this Letter Agreement,
all the provisions of Clause 12 of the Agreement, including without
limitation the Exclusivity of Warranties and General Limitations of
Liability and Duplicate Remedies therein contained, will apply to the
foregoing ***.
ASSIGNMENT
----------
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 will be
void and of no force or effect. Notwithstanding the preceding sentence,
the terms of Subclauses 19.5 and 19.6 of the Agreement will apply to this
Letter Agreement.
<PAGE>
A321-211
CFM 56-5B-3 ENGINES
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/ Christophe Mourey
--------------------------
Its: Chief Executive Officer
--------------------------
Date: October 31, 1997
--------------------------
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
---------------------------
Its: Treasurer
---------------------------
Date: October 31, 1997
---------------------------
<PAGE>
A321-211 APPENDIX A
CFM 56-5B-3 ENGINES ----------
1 Manufacturer's Weight Empty and Operating Weight Empty
------------------------------------------------------
At the time of this Agreement the Buyer's Manufacturer's Weight Empty and
the Operating Weight Empty for the purposes of Subparagraph 2.6 and
Paragraph 3 of this Letter Agreement are defined as follows:
Manufacturer's Weight Empty as defined in the
Specification Reference E 000.02000 Issue 1 : 93,110 lb
----------------
Buyer's Manufacturer's Weight Empty according
---------------------------------------------
to the Preamble of this Letter Agreement and for
------------------------------------------------
the purposes of Subparagraph 2.6 and Paragraph 3
------------------------------------------------
of this Letter Agreement : ***
------------------------
Specification changes as defined in Subparagraph
2.1 of this Appendix A (including USAir livery) : 1,543 lb
Operators Items as defined in Subparagraph 2.2.1
of this Appendix A : 12,829 lb
----------------
Operating Weight Empty of the A321 Aircraft for
-----------------------------------------------
the purposes of Subparagraphs 2.1 and 2.3 to 2.5
------------------------------------------------
inclusive of this Letter Agreement :107,482 lb
----------------------------------
Operators items as defined in Subparagraph 2.2.2
of this Appendix A : 14,329 lb
----------------
Operating Weight Empty of the A321 Aircraft for
-----------------------------------------------
the purposes of Subparagraphs 2.2 of this Letter
------------------------------------------------
Agreement :108,982 lb
---------
*Note As of the date hereof the Operating Weight Empty has not been
completely defined. The payloads, fuel burn and ranges guaranteed in
Paragraph 2 are based on the estimated Operating Weight Empty as
shown above.
<PAGE>
A321-211 APPENDIX A
CFM 56-5B-3 ENGINES ----------
2 Specification Changes and Operators Items
-----------------------------------------
2.1 Weight of Specification Changes
-------------------------------
As of the date of this draft the complete list of USAir Specification
Changes is unknown. It is estimated that the weight of such Specification
Changes is:
: 1,483 lb
USAir livery : 60 lb
2.2 Weights of Operators Items
--------------------------
Oil for engines and APU : 117 lb
Unusable fuel : 154 lb
Water for galleys and toilets : 441 lb
Waste tank pre-charge : 29 lb
A321 Aircraft documents and tool kits : 42 lb
Passenger seats and life jackets : 5,184 lb
Phone equipment : 170 lb
Galley structure and fixed equipment : 1,512 lb
Chillers : 195 lb
Catering and service equipment : 2,829 lb
Cabin supplies : 252 lb
Emergency equipment : 704 lb
Crew and bags : 1,200 lb
-----------
2.2.1 Total Operators Items for the purposes of Subparagraphs 2.1 and 2.3 to
2.5 inclusive
of this Letter Agreement :12,829 lb
Additional items for over water operation : 1,500 lb
-----------
2.2.2 Total Operators Items for the purposes of
Subparagraph 2.2 of this Letter Agreement :14,329 lb
<PAGE>
LETTER AGREEMENT NO. 9
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: ***
----
Ladies and Gentlemen:
US Airways Group, 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 said 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 said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said 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>
The Seller, under its arrangement with the Manufacturer, has negotiated and
obtained the following *** from the Manufacturer with respect to the Aircraft,
subject to the terms, conditions, limitations and restrictions all as
hereinafter set out. The Seller hereby warrants the performance by the
Manufacturer of the Manufacturer's obligations and hereby assigns to the Buyer,
and the Buyer hereby accepts, all of the rights and obligations of the Seller as
aforesaid under the said *** 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 the Seller has all requisite authority to make the foregoing
assignment and effect the foregoing subrogation to and in favor of the Buyer and
that the Seller will not enter into any amendment of the provisions so assigned
or subrogated without the prior written consent of the Buyer. Capitalized terms
used in the following quoted provisions and not otherwise defined therein will
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
1. ***
1.1 ***.
1.2 ***.
1.3 ***.
<PAGE>
2. ***
***
3. ***
***
4. ***
4.1 ***
<PAGE>
4.2 ***.
4.3 ***.
5 ***.
5.1 ***
<PAGE>
5.2 ***
<PAGE>
6. ***
7. ***
7.1 ***
7.2 ***
7.3 ***
8. ***
***
<PAGE>
UNQUOTE
In consideration of the assignment and subrogation by the Seller under
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 the Seller recognize and
agree that the Exclusivity of Warranties and General Limitations of
Liability provisions contained in Clause 12 of the Agreement will
apply to the foregoing ***.
ASSIGNMENT
----------
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 will
be void and of no force or effect. Notwithstanding the preceding
sentence, the terms of Subclauses 19.5 and 19.6 of the Agreement will
apply to this Letter Agreement.
<PAGE>
If the foregoing correctly sets forth our understanding, please
execute this Letter Agreement in the space provided below.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Christophe Mourey
--------------------------
Its: Chief Executive Officer
--------------------------
Date: October 31, 1997
--------------------------
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
---------------------------
Its: Treasurer
---------------------------
Date: October 31, 1997
---------------------------
<PAGE>
Appendix 1
***
<PAGE>
Appendix 1
***
<PAGE>
Appendix 1
***
<PAGE>
Appendix 2
***
<PAGE>
LETTER AGREEMENT NO. 10
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: ***
-----------------
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the "Seller"),
have entered into an Airbus A319/A320/A321 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 said 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 said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said 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>
The Seller, under its arrangement with the Manufacturer, has negotiated and
obtained the following *** from the Manufacturer with respect to the Aircraft,
subject to the terms, conditions, limitations and restrictions all as
hereinafter set out. The Seller hereby warrants the performance by the
Manufacturer of the Manufacturer's obligations and hereby assigns to the Buyer,
and the Buyer hereby accepts, all of the rights and obligations of the Seller as
aforesaid under the said *** 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 the Seller has all requisite authority to make the foregoing
assignment and effect the foregoing subrogation to and in favor of the Buyer and
that the Seller will not enter into any amendment of the provisions so assigned
or subrogated without the prior written consent of the Buyer. Capitalized terms
used in the following quoted provisions and not otherwise defined therein will
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
1. ***
1.1 ***
***
1.2 ***
1.2.1 ***
1.2.2 ***
1.2.3 ***
<PAGE>
1.3 ***
***
1.4 ***
***
2. ***
***
2.1 ***
***
2.2 ***
***
2.3 ***
***
<PAGE>
2.4 ***
***
2.5 ***
***
2.6 ***
2.6.1 ***
2.6.2 ***
2.7 ***
***
<PAGE>
3. ***
***
4. ***
4.1 ***
4.1.1 ***
4.1.2 ***
<PAGE>
4.2 ***
***
5. ***
5.1 ***
5.2 ***
6. ***
***
<PAGE>
7. ***
***
UNQUOTE
In consideration of the assignment and subrogation by the Seller under 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 the
Seller recognize and agree that the Exclusivity of Warranties and General
Limitations of Liability provisions contained in Clause 12 of the Agreement will
apply to the foregoing ***.
ASSIGNMENT
- ----------
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 will be void and of no force or effect.
Notwithstanding the preceding sentence, the terms of Subclauses 19.5 and 19.6 of
the Agreement will apply to this Letter Agreement.
<PAGE>
If the foregoing correctly sets forth our understanding, please
execute this Letter Agreement in the space provided below, whereupon this Letter
Agreement will constitute part of the Agreement.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Christophe Mourey
--------------------------
Its: Chief Executive Officer
--------------------------
Date: October 31, 1997
--------------------------
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
-------------------------
Its: Treasurer
-------------------------
Date: October 31, 1997
-------------------------
<PAGE>
Appendix 1
----------
- --------------------------------------------------------------------------------
***
<PAGE>
LETTER AGREEMENT NO. 11
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: PREDELIVERY PAYMENTS
--------------------
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the "Seller"),
have entered into an Airbus A319/A320/A321 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 said Agreement. The Buyer and the Seller have agreed
to set forth in this Letter Agreement No. 11 (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 said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said 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>
***
2. PREDELIVERY PAYMENT REFERENCE PRICE VALUES
------------------------------------------
***
3. ASSIGNMENT
----------
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 3 will be void and of no
force or effect. Notwithstanding the preceding sentence, the terms of
Subclauses 19.5 and 19.6 of the Agreement will apply to this Letter
Agreement.
<PAGE>
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/ Christophe Mourey
--------------------------
Its: Chief Executive Officer
--------------------------
Date: October 31, 1997
--------------------------
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
--------------------------
Its: Treasurer
--------------------------
Date: October 31, 1997
--------------------------
<PAGE>
TABLE 1
Predelivery Payment Reference Prices for All Aircraft
***
<PAGE>
LETTER AGREEMENT NO. 12
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: ***
---------------------------
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the "Seller"),
have entered into an Airbus A319/A320/A321 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 said Agreement. The Buyer and the Seller have agreed
to set forth in this Letter Agreement No. 12 (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 said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said 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>
The Seller, in its capacity as "Buyer" under its arrangement with the
Manufacturer, has negotiated and obtained the following *** 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 guarantees to the Buyer the performance by the
Manufacturer of the Manufacturer's obligations and assigns to the Buyer and the
Buyer hereby accepts, as to each Aircraft delivered to the Buyer under the
Agreement, all of the rights and obligations of the Seller with respect to such
Aircraft in the Seller's capacity as "Buyer" as aforesaid under the said *** and
the Seller subrogates the Buyer into all such rights and obligations in respect
of such 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 or subrogated without the prior written
consent of the Buyer.
Capitalized terms used in the following quoted provisions and not otherwise
defined herein will 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 (as defined in the Agreement).
QUOTE
- -----
1 ***
1.1 ***
1.2 ***
1.3 ***
<PAGE>
1.4 ***
2 ***
2.1 ***
2.2 **
2.3 ***
2.4 ***
2.5 ***
<PAGE>
3 ***
3.1 ***
3.1.1 ***
<PAGE>
3.2 ***
3.3 ***
4 ***
4.1 ***
4.2 ***
4.3 ***
4.4 ***
4.5 ***
4.6.1 ***
4.6.2 ***
4.6.3 ***
5 ***
5.1 ***
5.2 ***
5.2.1 ***
<PAGE>
5.3 ***
5.3.1 ***
5.3.2 ***
6 ***
6.1 ***
6.2 ***
6.3 ***
6.4 ***
7 ***
7.1 ***
7.2 ***
8 ***
8.1 ***
8.2 ***
8.3 ***
8.4 ***
9 ***
9.1 ***
9.2 ***
<PAGE>
UNQUOTE
- -------
In consideration of the assignment and subrogation by the Seller under
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, except as otherwise expressly provided in Paragraph 7 of
this Letter Agreement, all the provisions of Clause 12 of the
Agreement, including without limitation the Exclusivity of Warranties
and General Limitations of Liability and Duplicate Remedies therein
contained, will apply to the foregoing ***.
ASSIGNMENT
----------
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 will
be void and of no force or effect. Notwithstanding the preceding
sentence, the terms of Subclauses 19.5 and 19.6 of the Agreement will
apply to this Letter Agreement.
<PAGE>
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/Christophe Mourey
--------------------------
Its: Chief Executive Officer
--------------------------
Date: October 31, 1997
--------------------------
Accepted and Agreed
US Airways Group, Inc.
By: /s/Thomas A. Fink
---------------------------
Its: Treasurer
---------------------------
Date: October 31, 1997
---------------------------
<PAGE>
APPENDIX A
----------
***
1 ***
2 ***
3 ***
4 ***
5 ***
<PAGE>
APPENDIX A
----------
6 ***
<PAGE>
LETTER AGREEMENT NO. 13
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: TECHNICAL DISPATCH RELIABILITY GUARANTEE
----------------------------------------
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the "Seller"),
have entered into an Airbus A319/A320/A321 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 said Agreement. The Buyer and the Seller have agreed
to set forth in this Letter Agreement No. 13 (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 said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said 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>
The Seller, under its arrangement with the Manufacturer, has negotiated and
obtained the following Technical Dispatch Reliability Guarantee from the
Manufacturer with respect to the Aircraft, subject to the terms, conditions,
limitations and restrictions all as hereinafter set out. The Seller hereby
guarantees to the Buyer the performance by the Manufacturer of its obligations
under this Technical Dispatch Reliability Guarantee and hereby assigns to the
Buyer, and the Buyer hereby accepts, all of the rights and obligations of the
Seller as aforesaid under the said Technical Dispatch Reliability Guarantee, 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 or subrogated without the prior written
consent of the Buyer. Capitalized terms used in the following quoted provisions
and not otherwise defined therein will 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
1. SCOPE, COMMENCEMENT, DURATION
-----------------------------
This dispatch reliability guarantee (the "Guarantee") extends to the
Aircraft fleet, will commence with delivery of the first Aircraft and will
remain in force for a period of *** years (the "Term"), ***
2. DEFINITION
----------
2.1 Revenue Flight
--------------
A "Revenue Flight" is a flight as stipulated in the Buyer's time table, and
any scheduled charter flight of the Aircraft.
2.2 Aircraft Inherent Malfunction
-----------------------------
An "Aircraft Inherent Malfunction" is a condition whereby maintenance
action is necessary to reestablish serviceability of the Aircraft.
2.3 Dispatched
----------
An Aircraft will be deemed to have been "Dispatched" when it leaves the
gate for a Revenue Flight.
<PAGE>
2.4 Chargeable Delay
----------------
A "Chargeable Delay" will be deemed to have occurred when, by more than
fifteen (15) minutes and for reasons other than those defined under
"Excluded Delay," a primary Aircraft Inherent Malfunction causes a Revenue
Flight to depart later than the scheduled departure time.
2.5 Excluded Delay
--------------
Any delay which is not a Chargeable Delay is an "Excluded Delay." Excluded
Delays are specifically excluded from this Guarantee, even if consequently
the Aircraft is subject to a delay. These Excluded Delays include delays in
scheduled departure due to:
- SERVICING - NO CORRECTIVE MAINTENANCE PERFORMED Struts Oil Hydraulic
fluid Lubrication All servicing activities that do not require the
mechanic to
physically adjust or replace or defer structural repair and replace
hardware/software Fueling related Deicing Water and waste Sanitizing /
flushing Moisture condensation Printer paper replacement Routine
cleaning Tire pressure servicing
- PRECAUTIONARY MAINTENANCE - NO CORRECTIVE MAINTENANCE PERFORMED
Hydraulic leaks - within limits
Fuel leak - within limits
Manual closing or cycling passenger/crew/cargo door
Decals/paint/appearance items
Passenger amenity lamps
Tires - worn past limits
Brakes - worn past limits
Resetting circuit breakers - no corrective maintenance performed
according to FAA-approved FCOM
<PAGE>
- SCHEDULED MAINTENANCE ACTIVITIES
COMPLETION OF SCHEDULED/PLANNED WORK CONTENT OF SCHEDULED:
Maintenance checks
Maintenance set-ups
- PARTS DELAYS AND CANCELLATIONS
- EXTERNAL FORCE DAMAGE: AIRCRAFT DAMAGE/LIGHTNING STRIKES, ETC.
- KNOWN PERSONNEL ERROR
- SECONDARY DELAY/CANCELLATION:
A previous delay(s) or cancellation(s) of subsequent scheduled flights
on the same day caused by the same problem that caused the primary
delay(s) or cancellation(s).
- Delays caused by systems or components being designated as "Go if" in
the Minimum-Equipment List (MEL) as approved by the Buyer's
airworthiness authorities for the Buyer's operation of the Aircraft.
- Delays attributable to the Propulsion Systems.
2.6 Cancellation
------------
A "Cancellation" occurs when a Revenue Flight does not take place. The
cancellation of any or all of the flight legs of a multi-leg flight
constitutes only one (1) Cancellation. One (1) Cancellation is counted as
one (1) event.
2.7 Achieved Dispatch Reliability
-----------------------------
"Achieved Dispatch Reliability" is the actual Dispatch Reliability obtained
by the Aircraft fleet in regular revenue service and adjusted to the
clauses of this Guarantee. ETOPS flights are not included in this
Guarantee.
Achieved Dispatch Reliability, expressed as a percent, will be computed
every three months ("the Computation Period") and will be compared to the
Guaranteed Dispatch Reliability level (as defined in Paragraph 3) at the
end of each Computation Period.
<PAGE>
Total number of Revenue Flights
without Chargeable Delays or
Achieved Cancellations during the
Dispatch = Computation Period
--------------------------------------
X 100
Reliability Total number of Scheduled Revenue
Flights during the Computation Period
3. GUARANTEE
---------
The Seller guarantees the "Guaranteed Dispatch Reliability," set forth
below in Subparagraph 3.1 and 3.2.
3.1 First *** Years of Guarantee
-----------------------------
The Seller guarantees that, from the first three-month Computation Period
following delivery of the first Aircraft and for Aircraft in commercial
service, an Aircraft available for dispatch will, on average, have a ***
percent probability of being dispatched without a Chargeable Delay. This
probability will be maintained until the end of the *** year of operation
of the Aircraft fleet following delivery of the first Aircraft.
3.2 Remaining Years of Guarantee
----------------------------
The Seller guarantees that, from the first three-month Computation Period
after the beginning of the *** year of operation of the Aircraft fleet in
commercial service until the end of the Term, on average, an Aircraft
available for dispatch will have a *** percent probability of being
Dispatched without a Chargeable Delay.
4. BUYER'S AND SELLER'S OBLIGATION
-------------------------------
4.1 Buyer's and Seller's Obligations
--------------------------------
The Buyer's and Seller's specialists will mutually agree on the details of
a Chargeable Delay reporting procedure not later than three (3) months
before delivery of the first Aircraft.
4.2 Buyer's Obligations
-------------------
a) The Buyer will regularly submit Chargeable Delay data on a monthly
basis not later than twenty (20) days after the end of the reporting
month. Such data must contain detailed information on delays and
Cancellations to allow the Seller to
<PAGE>
assess the nature of system or component malfunctions.
b) The Buyer will notify the Seller at any time that the Achieved Dispatch
Reliability is below the Guaranteed Dispatch Reliability Level. After
such notice, the Seller will promptly take corrective actions. Upon
request, all reasonably necessary additional detailed operational and
engineering information will be provided by the Buyer in order to allow
the Seller to determine the necessary action.
c) The Buyer will incorporate in and apply to the Aircraft the procedures
and modifications recommended by the Seller to the extent necessary in
order to improve the Achieved Dispatch Reliability. Said modifications
will be incorporated and such procedures will be applied as soon as is
reasonably possible, consistent with the Buyer's maintenance program,
following receipt of instructions and parts (if applicable) by the
Buyer, provided that:
i) the effect of such a procedure or modification is substantiated to
the Buyer's satisfaction,
ii) application of such a procedure or modification is economical and
practical as determined by the Buyer's customary analysis
practice, and
iii) ***
In the event of a disagreement between the Seller and the Buyer as to
the effectiveness of procedures or modifications proposed by the Seller
to increase the achieved level, the Buyer will demonstrate to the
Seller that pursuant to its analysis, such a modification or procedure
is not effective.
Notwithstanding the Buyer's obligations above, the Buyer may, at its
option, decline to install such modification or decline to follow such
revised procedures as are referred to above. If the Buyer so declines,
the Seller may adjust the Guaranteed Dispatch Reliability Level
downwards by an amount consistent with the improvement in the Achieved
Dispatch Reliability Level, based on reasonable substantiation to the
Buyer and on other operators' experience, if any, that of the
reliability benefits of such modification or such revised procedures
are expected to cause.
d) Furthermore, the Buyer agrees to set its Aircraft fleet technical
dispatch reliability goals as shown in the Buyer's regular reliability
report (or equivalent) at a level equal to or greater than the
Guaranteed Dispatch Reliability Level, so that both the Buyer's and
Seller's technical staff can aggressively pursue attainment of the
Guaranteed Dispatch Reliability Level.
<PAGE>
4.3 Seller's Obligations
--------------------
During the Term, the Seller will provide technical and operational analyses
of delays and cancellations and will develop corrections intended to reduce
delays and, in the event that the Achieved Dispatch Reliability is below
the Guaranteed Dispatch Reliability Level the Seller will, not later than
six (6) months where practicable after notification by the Buyer and at no
charge to the Buyer:
a) provide modified Manufacturer's items, either hardware of software, to
improve Achieved Dispatch Reliability,
b) make recommendations concerning the Aircraft operation and maintenance
programs, publications, and policies to improve Achieved Dispatch
Reliability,
c) assist the Buyer to cause Vendors action to improve the Achieved
Dispatch Reliability.
5. ADJUSTMENT
----------
Any design, certification, regulatory, organizational structure or Aircraft
operation changes outside the Seller's control that may have an effect upon
the operation and dispatch characteristics of the Aircraft will be cause
for reevaluation or adjustment of this Guaranteed Dispatch Reliability
Level by mutual agreement between the Buyer and the Seller.
6. ACHIEVED DISPATCH RELIABILITY REVIEW MEETINGS
---------------------------------------------
An Achieved Dispatch Reliability review meeting between the Seller's and
the Buyer's representatives will be scheduled at the end of each six (6)
month period of Aircraft operation, or at some other period to be mutually
agreed. Representatives of the Buyer and the Seller will participate in the
meeting and will:
a) review current Achieved Dispatch Reliability,
b) eliminate unsupported or non-Aircraft-inherent delay claims from delay
records to compute Achieved Dispatch Reliability,
c) consider corrective action, if required,
<PAGE>
d) review the Buyer's incorporation of modifications as stated in
Subparagraph 4.2 of this Letter Agreement and requirements, if any, for
reduction of the Guaranteed Dispatch Reliability Level,
e) review possible design, certification, regulatory, organizational
structure or Aircraft operation changes and requirements, if any,
necessitating adjustment of the Guaranteed Dispatch Reliability Level.
7. LIABILITY LIMITATION
--------------------
The Seller's liability for failure to meet the Dispatch Reliability
Guarantee values will be governed solely by the terms of this Dispatch
Reliability Guarantee.
8. ASSIGNMENT
----------
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. Notwithstanding the preceding sentence, the terms of
Subclauses 19.5 and 19.6 of the Agreement will apply to this Letter
Agreement.
<PAGE>
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/Christophe Mourey
--------------------------
Its: Chief Executive Officer
--------------------------
Date: October 31, 1997
--------------------------
Accepted and Agreed
US Airways Group, Inc.
By: /s/Thomas A. Fink
---------------------------
Its: Treasurer
---------------------------
Date: October 31, 1997
---------------------------
<PAGE>
*** LETTER AGREEMENT
As of October 31, 1997
US Airways, Inc.
2345 Crystal Drive
Arlington, VA 22227
Attention: Treasurer
Re: ***
---------------------
Ladies and Gentlemen:
US Airways Group, Inc. and AVSA, S.A.R.L. (together with its successors and
permitted assigns, the "Seller") have entered into an Airbus A319/A320/A321
Purchase Agreement dated as of even date herewith (together with all exhibits
thereto and all letter agreements currently existing or hereafter entered into
that by their terms constitute part of such purchase agreement, and as such
purchase agreement may be amended, modified or supplemented from time to time,
the "Purchase Agreement"), which covers, among other things, the sale by the
Seller and the purchase by the Buyer (as hereinafter defined) of the A319, A320
and A321 aircraft referred to therein (the "Aircraft"). Clause 19 of the
Purchase Agreement outlines the terms and conditions upon which Buyer may assign
its rights and responsibilities under the Purchase Agreement to another party or
other parties. The term "Buyer" as used in this *** Letter Agreement shall mean
US Airways Group, Inc. or any and all assignees of US Airways Group, Inc. in
accordance with the provisions of Clause 19 of the Purchase Agreement and any
successors of US Airways Group, Inc. Any references to Buyer in the singular are
intended to include the plural and vice versa, and to include each, any or all
Buyers. As an inducement for the Buyer to enter into the Purchase Agreement and
consummate the transactions therein described, Seller has agreed to enter into
this *** Letter Agreement with US Airways, Inc. (together with all successors
and permitted assigns ("Airways"). *** . The Seller and Airways have agreed to
set forth in this *** Letter Agreement (as amended, supplemented or otherwise
modified from time to time, the "Letter Agreement") the terms ** in connection
with the Buyer's acquisition of the Aircraft. (*** The terms "herein", "hereof"
and "hereunder" and words of similar import refer to this Letter Agreement. Any
references to *** (as defined in Paragraph 4 hereof) in the singular are
intended to include the plural and vice versa.
***
1. ***
(a) ***
(b) ***
(c) ***
2. ***
3. ***
4. ***
5. ***
6. ***
7. ***
8. ***
9. Miscellaneous
-------------
(a) Notices
-------
<PAGE>
All notices and requests required or authorized hereunder
shall be given and shall become effective in the manner set
forth in Clause 22.1 of the Purchase Agreement. As of the date
hereof, the addresses for notices to Airways are the same as
for notices to Buyer.
(b) Waiver
------
The failure of either party to enforce at any time any of the
provisions of this Letter Agreement, or to exercise any right
herein provided, or to require at any time performance by the
other party of any of the provisions hereof, shall 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
Letter Agreement or any part thereof or the right of the other
party thereafter to enforce each and every such provision. The
express waiver by either party of any provision, condition or
requirement of this Letter Agreement shall not constitute a
waiver of any future obligation to comply with such provision,
condition or requirement.
(c) INTERPRETATION AND LAW
----------------------
THIS LETTER 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.
(d) SUBMISSION TO JURISDICTION
--------------------------
EACH xxx AND THE SELLER IRREVOCABLY AGREE THAT ANY LEGAL
ACTION OR PROCEEDING ARISING UNDER THIS LETTER AGREEMENT MAY
BE BROUGHT AND DETERMINED IN THE SUPREME COURT OF THE STATE OF
NEW YORK, NEW YORK COUNTY, IN THE GENERAL DISTRICT COURTS OF
FAIRFAX COUNTY OR ARLINGTON COUNTY, VIRGINIA, OR IN THE UNITED
STATES DISTRICT COURTS FOR THE SOUTHERN DISTRICT OF NEW YORK,
OR IN THE EASTERN DISTRICT OF VIRGINIA, AND IRREVOCABLY
ACCEPTS WITH REGARD TO ANY SUCH ACTION OR PROCEEDINGS THE
NONEXCLUSIVE JURISDICTION OF THOSE COURTS. The Seller hereby
irrevocably designates 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 in any legal action or proceeding with respect to
this Letter Agreement.
(e) Confidentiality
---------------
Subject to any legal or governmental requirements of
disclosure, the parties (which for this purpose shall include
their employees, agents, and advisors) shall maintain the
terms and conditions of this Letter Agreement strictly
confidential. Without limiting the generality of the
foregoing, each *** and the Seller will limit the disclosure
of the contents of this Letter Agreement, to the extent
legally permissible, in any filing required to be made with
any governmental agency and shall make such applications as
shall be necessary to implement the foregoing. Each *** and
the Seller shall consult with each other prior to the making
of any public disclosure or filing, otherwise permitted
hereunder, of this Letter Agreement or the terms and
conditions hereof. The provisions of this Paragraph 9(e) shall
survive any termination of this Letter Agreement.
(f) Severability
------------
In the event that any provision of this Letter Agreement
should for any reason be held to be without effect, the
remainder of this Letter Agreement shall remain in full force
and effect. To the extent permitted by applicable law, each
party hereto hereby waives any provision of law which renders
any provision of this Letter Agreement prohibited or
unenforceable in any respect.
(g) Alterations to Contract
-----------------------
This Letter Agreement contains the entire agreement between
the parties with respect to the subject matter hereof and
supersedes any previous understanding, commitments or
representations whatsoever, oral or written. This Letter
Agreement shall not be varied except by an instrument in
writing executed by both parties.
(h) Language
--------
All correspondence, documents and any other written matters in
connection with this Letter Agreement shall be in English.
(i) Headings
<PAGE>
--------
All headings in this Letter Agreement are for convenience of
reference only and do not constitute a part of this Letter
Agreement.
(j) Counterparts
------------
This Letter Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts
shall together constitute but one and the same instrument.
(k) ***
-------------
***
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/Christophe Mourey
Christophe Mourey
Its: Chief Executive Officer
Date: October 31, 1997
Accepted and Agreed
US Airways, Inc.
By: /s/ Thomas A. Fink
Thomas A. Fink
Its: Treasurer
Date: October 31, 1997
US Airways Group, Inc.
By: /s/ Thomas A. Fink
Thomas A. Fink
Its: Treasurer
Date: October 31, 1997
<PAGE>
Attachment A
------------
<PAGE>
Partners of Airbus Industrie G.I.E.
As of October 31, 1997
<TABLE>
<CAPTION>
Name Percentage Share
- ---- ----------------
<S> <C>
Aerospatiale, Societe National Industrielle 37.9%
Daimler-Benz Aerospace Airbus, GmbH 37.9%
British Aerospace (Operations) LTD 20%
Construcciones Aeronauticas, S.A. 4.2%
</TABLE>
<PAGE>
CONSENT AND GUARANTY
--------------------
Airbus Industrie G.I.E., established under "Ordonnance" No. 67-821 dated
September 23, 1967, of the Republic of France (the "Guarantor"), hereby
acknowledges notice of and consents to all of the terms of the *** Letter
Agreement dated as of October 31, 1997 (as amended, modified, or supplemented
from time to time, (the "Agreement"), between AVSA, S.A.R.L. (the "Seller"), and
US Airways, Inc. ("Airways"), and hereby irrevocably and unconditionally
guarantees the due and punctual payment and performance by the Seller of all of
the latter's liabilities and obligations as set forth in the said Agreement
subject to the terms and limitations therein contained. The Guarantor hereby
agrees that its obligations hereunder will be unconditional and absolute and,
without limiting the generality of the foregoing, will not be released,
discharged or otherwise affected by (i) any modification or amendment of or
supplement to said Agreement (other than release, discharge or waiver of this
Guaranty hereunder) or (ii) any assignment of said Agreement or of any rights or
obligations thereunder made in accordance with Paragraph 8 thereof. The
Guarantor further agrees that it will execute and deliver such other and further
instruments as may be reasonably requested by Airways, its successors or assigns
to reaffirm its obligations hereunder. This Consent and Guaranty constitutes a
guaranty of performance and of payment, and Guarantor agrees that, in case of
default by the Seller, Airways will not be required to file suit against the
Seller as a condition to enforcement of this Consent and Guaranty.
The Guarantor irrevocably agrees that any legal action or proceeding
against the Guarantor with respect to this Consent and Guaranty may be brought
and determined in the Supreme Court of the State of New York, New York County,
in the General District Court of Fairfax County or Arlington County, Virginia,
in the United States District Courts for the Southern District of New York or
the Eastern District of Virginia, or in the commercial Court ("Tribunal de
Commerce") of Toulouse, France, and irrevocably accepts with regard to any such
action or proceeding the nonexclusive jurisdiction of those courts. The
Guarantor irrevocably waives the benefit of Articles 14 and 15 of the French
Civil Code. The
<PAGE>
Guarantor hereby irrevocably waives, and agrees to assert, the defense of
sovereign immunity, and, to the extent permitted by law, the defense that any
such action or proceeding is brought in an inconvenient forum, that the venue of
any such action or proceeding is improper, or that this Consent and Guaranty may
not be enforced in or by such courts. However, the preceding sentence will not
be construed as a waiver of any requirement of service of process. The Guarantor
hereby irrevocably designates CT Corporation as the Guarantor's agent to receive
service of process in any legal action or proceeding with respect to this
Consent and Guaranty.
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.
Airbus Industrie, G.I.E.,
/s/Jean Pierson
-------------------------------
By: Jean Pierson
Title: Managing Director
<PAGE>
*** LETTER AGREEMENT
As of October 31, 1997
US Airways, Inc.
2345 Crystal Drive
Arlington, VA 22227
Attention: Treasurer
Re: ***
Ladies and Gentlemen:
US Airways Group, Inc. and AVSA, S.A.R.L. (together with its successors and
permitted assigns, the "Seller") have entered into an Airbus A319/A320/A321
Purchase Agreement dated as of even date herewith (together with all exhibits
thereto and all letter agreements currently existing or hereafter entered into
that by their terms constitute part of such purchase agreement, and as such
purchase agreement may be amended, modified or supplemented from time to time,
the "Purchase Agreement"), which covers, among other things, the sale by the
Seller and the purchase by the Buyer (as hereinafter defined) of the A319, A320
and A321 aircraft referred to therein (the "Aircraft"). Clause 19 of the
Purchase Agreement outlines the terms and conditions upon which Buyer may assign
its rights and responsibilities under the Purchase Agreement to another party or
other parties. The Term "Buyer" as used in this *** Letter Agreement shall mean
US Airways Group, Inc. or any and all assignees of US Airways Group, Inc. in
accordance with the provisions of Clause 19 of the Purchase Agreement and any
successors of US Airways Group, Inc. Any references herein to Buyer in the
singular are intended to include the plural and vice versa, and to include each,
any or all Buyers. As an inducement for the Buyer to enter into the Purchase
Agreement and consummate the transactions therein described, Seller has agreed
to enter into this *** Letter Agreement with US Airways, Inc. (together with all
successors and permitted assigns ("Airways"). The Seller and Airways have agreed
to set forth in this *** Letter Agreement (as amended, supplemented or otherwise
modified from time to time, the "Letter Agreement") the terms of *** in
connection with the Buyer's acquisition of the Aircraft. The terms "herein",
"hereof" and "hereunder" and words of similar import refer to this Letter
Agreement. Any references herein to *** (as defined in Paragraph 4 hereof) in
the singular are intended to include the plural and vice versa.
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/Christophe Mourey
----------------------------
Christophe Mourey
Its: Chief Executive Officer
---------------------------
Date: October 31, 1997
Accepted and Agreed
US Airways, Inc.
By: /s/Thomas A. Fink
-----------------------
Thomas A. Fink
Its: Treasurer
----------------------
Date: October 31, 1997
---------------------
US Airways Group, Inc.
By: /s/Thomas A. Fink
-----------------------
Thomas A. Fink
Its: Treasurer
----------------------
Date: October 31, 1997
---------------------
<PAGE>
CONSENT AND GUARANTY
--------------------
Airbus Industrie G.I.E., established under "Ordonnance" No. 67-821 dated
September 23, 1967, of the Republic of France (the "Guarantor"), hereby
acknowledges notice of and consents to all of the terms of the *** Letter
Agreement dated as of October 31, 1997 (as amended, modified, or supplemented
from time to time, (the "Agreement"), between AVSA, S.A.R.L. (the "Seller"), and
US Airways, Inc. ("Airways"), and hereby irrevocably and unconditionally
guarantees the due and punctual payment and performance by the Seller of all of
the latter's liabilities and obligations as set forth in the said Agreement
subject to the terms and limitations therein contained. The Guarantor hereby
agrees that its obligations hereunder will be unconditional and absolute and,
without limiting the generality of the foregoing, will not be released,
discharged or otherwise affected by (i) any modification or amendment of or
supplement to said Agreement (other than release, discharge or waiver of this
Guaranty hereunder) or (ii) any assignment of said Agreement or of any rights or
obligations thereunder made in accordance with Paragraph 8 thereof. The
Guarantor further agrees that it will execute and deliver such other and further
instruments as may be reasonably requested by Airways, its successors or assigns
to reaffirm its obligations hereunder. This Consent and Guaranty constitutes a
guaranty of performance and of payment, and Guarantor agrees that, in case of
default by the Seller, Airways will not be required to file suit against the
Seller as a condition to enforcement of this Consent and Guaranty.
The Guarantor irrevocably agrees that any legal action or proceeding
against the Guarantor with respect to this Consent and Guaranty may be brought
and determined in the Supreme Court of the State of New York, New York County,
in the General District Court of Fairfax County or Arlington County, Virginia,
in the United States District Courts for the Southern District of New York or
the Eastern District of Virginia, or in the commercial Court ("Tribunal de
Commerce") of Toulouse, France, and irrevocably accepts with regard to any such
action or proceeding the nonexclusive jurisdiction of those courts. The
Guarantor irrevocably waives the benefit of Articles 14 and 15 of the French
Civil Code. The
<PAGE>
Guarantor hereby irrevocably waives, and agrees to assert, the defense of
sovereign immunity, and, to the extent permitted by law, the defense that any
such action or proceeding is brought in an inconvenient forum, that the venue of
any such action or proceeding is improper, or that this Consent and Guaranty may
not be enforced in or by such courts. However, the preceding sentence will not
be construed as a waiver of any requirement of service of process. The Guarantor
hereby irrevocably designates CT Corporation as the Guarantor's agent to receive
service of process in any legal action or proceeding with respect to this
Consent and Guaranty.
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.
Airbus Industrie, G.I.E.,
/s/Jean Pierson
----------------------------------
By: Jean Pierson
Title: Managing Director
<PAGE>
EXHIBIT 10.2
September 5, 1997
John W. Harper
Senior Vice President-Finance and
Chief Financial Officer
US Airways, Inc.
2345 Crystal Drive
Arlington, Virginia 22227
Dear John:
This letter, when countersigned by you, will reflect
the terms of the agreement between US Airways, Inc. ("US
Airways" or the "Company") and you concerning the severance
of your employment. US Airways has not yet identified your
successor, and, therefore, we have requested and you have
agreed to continue in your position while we identify a
successor and to provide assistance and advice to ensure a
smooth transition of your responsibilities to your
successor. In consideration for your services during this
period, for your past service to the Company and the mutual
promises herein contained, US Airways agrees to the
following:
1. You will continue in your current position
as Senior Vice President-Finance and Chief Financial
Officer of US Airways, Inc. and US Airways Group, Inc.
until such time as your successor is elected and a
reasonable transition period has passed. US Airways
will determine in its sole discretion when the
transition period has been completed. Notwithstanding
the foregoing, in the event that no successor is named,
or under any circumstances, the last day of your active
employment will be January 15, 1998. Upon the first to
occur of the completion of the transition period or
January 15, 1998, you will resign your positions with
US Airways, Inc., US Airways Group, Inc., and any other
positions, including board memberships, at any
subsidiary corporations.
2. Subject to paragraph 5 below addressing
incentive compensation, during the period from today's
date through January 15, 1998, you will continue to
receive your current base salary and all other
compensation and benefits applicable to your current
position as a senior officer, to the extent such
benefits are continued for all other senior officers.
In the event that a successor is named and a transition
period is completed prior to January 15, 1998, you will
continue to receive your base salary and all other
compensation and benefits as if you remained an active
employee through January 15, 1998, irrespective of the
resignation of your employment.
<PAGE>
John W. Harper
September 5, 1997
Page Two
3. Within 15 days of your severance, US
Airways will pay to you in one lump sum, a severance
payment based upon one year's base salary (i.e.,
$295,000) representative of the period of time from the
completion of the transition period through the
anniversary of such date; provided, however, that in
the event that the transition period is completed prior
to January 15, 1998, this severance payment will be
decreased for the period of salary continuation from
the end of the transition period through January 15,
1998.
4. US Airways agrees to provide you with
continued service credit under the terms of the non-
qualified supplemental executive retirement agreement
dated August 8, 1995 between you and the Company
(hereinafter the "SERP Agreement") through the earlier
to occur of one year from the completion of the
transition period or January 15, 1999. The parties
acknowledge that the additional service credit will be
credited under the formula in the SERP Agreement which
provides for two years of "deemed" credited service for
each year of actual service. Additionally, in the
event that you elect immediate commencement of pension
benefits upon your severance, the additional service
credit will be included in the calculation regardless
of the benefit commencement.
5. You agree that you will not be entitled to
any incentive award under the US Airways Group, Inc.
Incentive Compensation Plan for the 1997 or the 1998
fiscal year.
6. As a result of the separation of your
employment with US Airways, (a) the remaining
7,000 shares of restricted stock granted to you
on November 28, 1995, with a three-year vesting
schedule, will not vest under the Restricted
Stock Agreement as currently drafted, and (b)
the option to purchase 35,000 shares of stock
at an option price of $25.375, with a five-year
vesting schedule, will not vest under the terms
of the Stock Option Agreement as currently
drafted, if your severance date is before
November 28, 1997 or March 25, 1998,
respectively. US Airways agrees that the 3,000
shares of restricted stock currently scheduled
to vest on November 28, 1997 will vest on that
date irrespective of the status of your
employment. The remaining 4,000 shares of
restricted stock scheduled to vest on November
28, 1998 will be forfeited on your severance
date. Additionally, the option to purchase
7,000 shares which is currently scheduled to
vest on March 25, 1998 will vest on that date
irrespective of the status of your employment
on that date. You will have until September
25, 1998 to exercise those vested options. The
option to purchase the remaining 28,000 shares
of stock will be forfeited on your severance
date. The applicable restricted stock and
stock option agreements will be amended
accordingly.
<PAGE>
John W. Harper
September 5, 1997
Page Three
7. In the event that you elect to commence
your retirement benefits immediately upon your
severance, i.e., effective February 1, 1998, you will
be eligible for all retiree benefits provided to
employees and senior officers of the Company, as they
may be amended from time to time, including, but not
limited to health plan coverage, on-line space positive
travel privileges, US Airways Club privileges and
split-dollar life insurance continuation.
8. The parties agree that the severance of
your employment is by mutual agreement pursuant to
paragraph 5(a) of the Employment Agreement between you
and the Company dated January 27, 1993 and you
expressly waive your right to any of the rights,
compensation, benefits or other Company obligations
under said Employment Agreement effective with your
signing of this letter. You agree that this document
contains the entire understanding of the parties
related to the severance of your employment and the
rights and obligations of the parties upon the
severance of your employment.
9. You agree to hold in a fiduciary capacity
for the benefit of US Airways and will not disclose
without the prior written consent of US Airways, all
confidential and proprietary information, knowledge or
data relating to US Airways, its parent, subsidiary or
affiliated companies, which was obtained by you during
your employment with US Airways unless such
information, knowledge or data is known to the general
public (other than by acts by you). You further agree
not to disclose or make public, orally, in writing, or
otherwise, any disparaging statements, or any
information which would cause public discredit, about
US Airways, its parent, subsidiary or affiliated
companies, or their respective directors, officers or
employees. In the event that you are subpoenaed or
otherwise compelled by court order to provide
information which would violate this non-
disclosure/non-disparagement provision, you will notify
US Airways before responding to any such request for
testimony or information to afford US Airways an
opportunity to assert any objection it may have. In
the event that US Airways determines that you have
breached this non-disclosure/non-disparagement
provision you will forfeit eligibility for all of the
compensation and benefits provided for in this
agreement. Any compensation or benefits paid to you
prior to such must be repaid to US Airways within 15
days of your receipt of written notification of such
breach from US Airways. US Airways reserves the right
to pursue any other legal or equitable remedies
available to it to enforce this non-disclosure/non-
disparagement provision.
<PAGE>
John W. Harper
September 5, 1997
Page Four
10. You irrevocably and unconditionally
release and discharge US Airways, it subsidiaries,
parent, affiliates, predecessors, successors and
assigns, and their respective principals, directors,
officers, employees, and agents from all legal,
equitable, or administrative claims, known and unknown,
that you may have against any or all of them arising on
or before the date you execute this agreement. This
release specifically includes but is not limited to any
discrimination claims arising under the Civil Rights
Act of 1964, as amended, the Americans with
Disabilities Act, the Civil Rights Act of 1991, the Age
Discrimination in Employment Act, the Employee
Retirement Income Security Act, the Older Workers
Benefit Protection Act, and all other claims arising
under federal, state or local statutes, common law or
ordinances. This release also includes but is not
limited to a release of any claim for tortious conduct,
breach of contract, breach of covenants, wrongful
discharge or for attorneys' fees and costs.
11. The parties agree that any and all claims
concerning the application, interpretation, and
enforcement of this agreement shall be filed and
litigated in the appropriate trial court in the
Commonwealth of Virginia. The parties agree that they
are expressly waiving the right to file and litigate
any action, in law or in equity, concerning this
agreement in any other forum.
Your signature below indicates your agreement to and
intention to be bound by the terms of this agreement. Your
signature below also indicates that you have read this
document, understand all of its provisions, have had the
opportunity to seek the advice of counsel, and you have been
given at least 21 days to review the document. If you sign
this agreement prior to the end of said 21-day period, you
acknowledge that you have done so voluntarily. You have
seven days after signature to revoke this agreement. Any
such revocation must be delivered in writing to US Airways,
to the attention of John R. Long, before the end of the
seventh day.
Pursuant to the authorization of its Board of
Directors, US Airways has entered into this agreement by
signature of its officer below.
EXECUTIVE US AIRWAYS, INC.
/s/ John W. Harper /s/ John R. Long III
------------------ --------------------
John W. Harper John R. Long III
Executive Vice President-Human
Resources
<PAGE>
<TABLE>
US Airways Group, Inc.
Exhibit 11
Computation of Primary and Fully Diluted Income Per Common Share
(unaudited)
(in thousands, except per share amounts)
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
---------------------- ----------------------
1997 1996 1997 1996
------ ------ ------ ------
Adjustments to Net Income
- -------------------------
<S> <C> <C> <C> <C>
Net income $187,030 $ 67,738 $545,274 $236,220
Preferred dividend requirement (10,612) (22,338) (54,983) a) (67,134)
------- ------- ------- -------
Net income applicable to common
stock and common stock equivalents
used for primary computation 176,418 45,400 490,291 169,086
Fully diluted adjustments
Assume conversion of all preferred stock:
Preferred dividend requirement 10,612 22,338 b) 54,983 a) 67,134 b)
------- ------- ------- -------
Adjusted net income applicable to
common stock assuming full dilution $187,030 $ 67,738 $545,274 $236,220
======= ======= ======= =======
Adjustments to common stock shares outstanding
- ----------------------------------------------
Weighted average number of shares of
common stock outstanding 84,198 64,213 73,572 63,947
Primary adjustments
Incremental shares from outstanding stock
options (treasury stock method) 2,487 1,625 2,048 1,510
------- ------- ------- -------
<PAGE>
Total weighted average number of common
and common equivalent shares used for
primary computation 86,685 65,838 75,620 65,457
======= ======= ======= =======
Weighted average number of shares of
common stock outstanding 84,198 64,213 73,572 63,947
Fully diluted adjustments
Incremental shares from outstanding stock
options (treasury stock method) 2,685 1,625 2,685 1,510
Assume conversion of all preferred stock 15,952 39,156 b) 28,473 c) 39,156 b)
------- ------- ------- -------
Total weighted average number of
common shares outstanding
after full conversion 102,835 104,994 104,730 104,613
======= ======= ======= =======
Income Per Common Share
- -----------------------
Primary income per common share $2.04 $0.69 $6.48 $2.58
==== ==== ==== ====
Fully diluted income per common share $1.82 $0.65 $5.21 $2.26
==== ==== ==== ====
a) Includes redemption premiums of $5.2 million and $0.8 million on 1,940.636 shares of Series F Preferred Stock and the
Series T Preferred Stock, respectively (May 22, 1997 redemption date). See also c) below.
b) The effects of assuming conversion of the Series H Preferred Stock are antidilutive, but included for purposes of this
calculation in accordance with Regulation S-K, Item 601(b)(11).
c) For the time they were outstanding during the period, the effects of assuming conversion of the shares of Series F
Preferred Stock prior to their redemption are antidilutive, but included for purposes of this calculation in
accordance with Regulation S-K, Item 601(b)(11). See also a) above.
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000701345
<NAME> US AIRWAYS GROUP, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<CASH> 1,224,411
<SECURITIES> 857,068
<RECEIVABLES> 410,984<F1>
<ALLOWANCES> 0<F1>
<INVENTORY> 223,458
<CURRENT-ASSETS> 2,837,192
<PP&E> 6,420,380
<DEPRECIATION> 2,719,346
<TOTAL-ASSETS> 7,923,916
<CURRENT-LIABILITIES> 2,714,307
<BONDS> 2,441,084
358,000
0
<COMMON> 91,119
<OTHER-SE> 171,074
<TOTAL-LIABILITY-AND-EQUITY> 7,923,916
<SALES> 0
<TOTAL-REVENUES> 6,428,860
<CGS> 0
<TOTAL-COSTS> 5,914,525
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 192,642
<INCOME-PRETAX> 629,092
<INCOME-TAX> 83,818
<INCOME-CONTINUING> 545,274
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 545,274
<EPS-PRIMARY> 6.48
<EPS-DILUTED> 5.18
<FN>
<F1>Receivables are presented net of allowances.
</FN>
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<CIK> 0000714560
<NAME> US AIRWAYS, INC.
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> SEP-30-1997
<CASH> 1,223,761
<SECURITIES> 857,068
<RECEIVABLES> 453,424<F1>
<ALLOWANCES> 0<F1>
<INVENTORY> 192,191
<CURRENT-ASSETS> 2,841,685
<PP&E> 6,168,954
<DEPRECIATION> 2,624,118
<TOTAL-ASSETS> 7,849,972
<CURRENT-LIABILITIES> 2,674,296
<BONDS> 2,440,193
0
0
<COMMON> 1
<OTHER-SE> 603,744
<TOTAL-LIABILITY-AND-EQUITY> 7,849,972
<SALES> 0
<TOTAL-REVENUES> 6,414,130
<CGS> 0
<TOTAL-COSTS> 5,896,000
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 196,637
<INCOME-PRETAX> 631,055
<INCOME-TAX> 98,734
<INCOME-CONTINUING> 532,321
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 532,321
<EPS-PRIMARY> 0<F2>
<EPS-DILUTED> 0<F2>
<FN>
<F1>Receivables are presented net of allowances.
<F2>EPS calculations are not relevant because US Airways, Inc. is a wholly-owned
subsidiary of US Airways Group, Inc.
</FN>
</TABLE>
