ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
(State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) | |||||||||||||
(Address of principal executive offices) | (Zip Code) |
Title of Each Class | Trading Symbol | Name of Each Exchange on Which Registered | ||||||||||||
☒ | Accelerated filer | ☐ | |||||||||
Non-accelerated filer | ☐ | Smaller reporting company | |||||||||
Emerging growth company |
Class | Number of Shares | ||||
Common Stock, $0.0001 par value per share |
PART I | Page | ||||
PART II | |||||
PART III | |||||
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters | |||||
PART IV | |||||
Employee Groups | Representative | Amendable Date (1) | ||||||||||||
Pilots | Air Line Pilots Association, International (ALPA) | January 2025 | ||||||||||||
Flight Attendants | Association of Flight Attendants (AFA-CWA) | January 2026 | ||||||||||||
Dispatchers | Professional Airline Flight Control Association (PAFCA) | October 2023 | ||||||||||||
Ramp Service Agents | International Association of Machinists and Aerospace Workers (IAMAW) | November 2026 | ||||||||||||
Passenger Service Agents | Transport Workers Union of America (TWU) | February 2027 | ||||||||||||
Aircraft Maintenance Technicians | Aircraft Mechanics Fraternal Association (AMFA) (2) | N/A (2) |
Aircraft Type | Seats | Average Age (years) | Number of Aircraft | Number Owned | Number Leased(1) | ||||||||||||
A319 | 145 | 16.9 | 19 | 17 | 2 | ||||||||||||
A320ceo | 182 | 9.2 | 64 | 27 | 37 | ||||||||||||
A320neo | 182 | 2.7 | 84 | 4 | 80 | ||||||||||||
A321ceo | 228 | 7.0 | 30 | 25 | 5 | ||||||||||||
A321neo | 235 | 0.4 | 8 | — | 8 | ||||||||||||
6.6 | 205 | 73 | 132 |
ISSUER PURCHASES OF EQUITY SECURITIES | ||||||||||||||||||||||||||
Period | Total Number of Shares Purchased | Average Price Paid per Share | Total Number of Shares Purchased as Part of Publicly Announced Plans or Programs | Approximate Dollar Value of Shares that May Yet be Purchased Under Plans or Programs | ||||||||||||||||||||||
October 1-31, 2023 | 1,052 | $ | 16.31 | — | $ | — | ||||||||||||||||||||
November 1-30, 2023 | — | — | — | — | ||||||||||||||||||||||
December 1-31, 2023 | 55,906 | 16.31 | — | — | ||||||||||||||||||||||
Total | 56,958 | $ | 16.31 | — |
12/31/2018 | 12/31/2019 | 12/31/2020 | 12/31/2021 | 12/31/2022 | 12/31/2023 | |||||||||||||||
Spirit | $ | 100.00 | $ | 69.60 | $ | 42.21 | $ | 37.72 | $ | 33.63 | $ | 28.30 | ||||||||
NYSE ARCA Airline Index | $ | 100.00 | $ | 122.74 | $ | 93.00 | $ | 91.37 | $ | 59.45 | $ | 76.93 | ||||||||
S&P 500 Index | $ | 100.00 | $ | 131.47 | $ | 155.65 | $ | 200.29 | $ | 163.98 | $ | 207.04 |
Twelve Months Ended December 31, | Percent Change | ||||||||||||||||
2023 | 2022 | ||||||||||||||||
Operating Statistics (unaudited) (A): | |||||||||||||||||
Average aircraft | 199.5 | 180.7 | 10.4 | % | |||||||||||||
Aircraft at end of period | 205 | 194 | 5.7 | % | |||||||||||||
Average daily aircraft utilization (hours) | 11.1 | 10.7 | 3.7 | % | |||||||||||||
Average stage length (miles) | 1,007 | 1,013 | (0.6) | % | |||||||||||||
Departures | 297,900 | 261,079 | 14.1 | % | |||||||||||||
Passenger flight segments (PFSs) (thousands) | 44,105 | 38,463 | 14.7 | % | |||||||||||||
Revenue passenger miles (RPMs) (thousands) | 45,243,787 | 39,775,253 | 13.7 | % | |||||||||||||
Available seat miles (ASMs) (thousands) | 55,665,561 | 48,567,978 | 14.6 | % | |||||||||||||
Load factor (%) | 81.3 | % | 81.9 | % | (0.6) pts | ||||||||||||
Fare revenue per passenger flight segment ($) | 53.01 | 63.85 | (17.0) | % | |||||||||||||
Non-ticket revenue per passenger flight segment ($) | 68.57 | 67.93 | 0.9 | % | |||||||||||||
Total revenue per passenger flight segment ($) | 121.58 | 131.78 | (7.7) | % | |||||||||||||
Average yield (cents) | 11.85 | 12.74 | (7.0) | % | |||||||||||||
TRASM (cents) | 9.63 | 10.44 | (7.8) | % | |||||||||||||
CASM (cents) | 10.52 | 11.67 | (9.9) | % | |||||||||||||
Adjusted CASM (cents) | 10.33 | 10.71 | (3.5) | % | |||||||||||||
Adjusted CASM ex-fuel (cents) | 7.06 | 6.73 | 4.9 | % | |||||||||||||
Fuel gallons consumed (thousands) | 591,796 | 527,290 | 12.2 | % | |||||||||||||
Average fuel cost per gallon ($) | 3.08 | 3.66 | (15.8) | % |
Year Ended 2023 | % change 2023 versus 2022 | Year Ended 2022 | |||||||||||||||
Operating revenues: | |||||||||||||||||
Fare (thousands) | $ | 2,338,191 | (4.8)% | $ | 2,455,817 | ||||||||||||
Non-fare (thousands) | 2,929,970 | 15.6% | 2,533,548 | ||||||||||||||
Passenger (thousands) | 5,268,161 | 5.6% | 4,989,365 | ||||||||||||||
Other (thousands) | 94,388 | 19.4% | 79,082 | ||||||||||||||
Total operating revenue (thousands) | $ | 5,362,549 | 5.8% | $ | 5,068,447 | ||||||||||||
Total operating revenue per ASM (TRASM) (cents) | 9.63 | (7.8)% | 10.44 | ||||||||||||||
Fare revenue per passenger flight segment | $ | 53.01 | (17.0)% | $ | 63.85 | ||||||||||||
Non-ticket revenue per passenger flight segment | 68.57 | 0.9% | 67.93 | ||||||||||||||
Total revenue per passenger flight segment | $ | 121.58 | (7.7)% | $ | 131.78 |
Year Ended 2023 | Change 2023 versus 2022 | Year Ended 2022 | |||||||||||||||||||||
CASM | Per-ASM Change | Percent change | CASM | ||||||||||||||||||||
Operating expenses: | |||||||||||||||||||||||
Aircraft fuel | $3.27 | $(0.70) | (17.6)% | $3.97 | |||||||||||||||||||
Salaries, wages and benefits | 2.90 | 0.32 | 12.4 | 2.58 | |||||||||||||||||||
Landing fees and other rentals | 0.73 | 0.01 | 1.4 | 0.72 | |||||||||||||||||||
Aircraft rent | 0.68 | 0.10 | 17.2 | 0.58 | |||||||||||||||||||
Depreciation and amortization | 0.58 | (0.06) | (9.4) | 0.64 | |||||||||||||||||||
Maintenance, materials and repairs | 0.40 | 0.01 | 2.6 | 0.39 | |||||||||||||||||||
Distribution | 0.34 | (0.03) | (8.1) | 0.37 | |||||||||||||||||||
Special charges (credits) | 0.12 | (0.75) | NM | 0.87 | |||||||||||||||||||
Loss on disposal of assets | 0.06 | (0.04) | NM | 0.10 | |||||||||||||||||||
Other operating expenses | 1.42 | (0.04) | (2.7) | 1.46 | |||||||||||||||||||
Total operating expense | |||||||||||||||||||||||
CASM | 10.52 | (1.15) | (9.9) | 11.67 | |||||||||||||||||||
Adjusted CASM (1) | 10.33 | (0.38) | (3.5) | 10.71 | |||||||||||||||||||
Adjusted CASM ex fuel (2) | 7.06 | 0.33 | 4.9 | 6.73 |
Year Ended December 31, | |||||||||||||||||||||||
2023 | 2022 | ||||||||||||||||||||||
(in millions) | Per ASM | (in millions) | Per ASM | ||||||||||||||||||||
CASM (cents) | 10.52 | 11.67 | |||||||||||||||||||||
Less: | |||||||||||||||||||||||
Special charges (credits) | $ | 69.5 | 0.12 | $ | 420.2 | 0.87 | |||||||||||||||||
Loss on disposal of assets | 34.0 | 0.06 | 46.6 | 0.10 | |||||||||||||||||||
Litigation loss contingency | 6.0 | 0.01 | — | — | |||||||||||||||||||
Adjusted CASM (cents) | 10.33 | 10.71 |
Twelve Months Ended December 31, | |||||||||||||||||
2023 | 2022 | ||||||||||||||||
(in thousands, except per-gallon amounts) | Percent Change | ||||||||||||||||
Fuel gallons consumed | 591,796 | 527,290 | 12.2 | % | |||||||||||||
Into-plane fuel cost per gallon | $ | 3.08 | $ | 3.66 | (15.8) | % | |||||||||||
Aircraft fuel expense (per consolidated statements of operations) | $ | 1,821,165 | $ | 1,929,969 | (5.6) | % |
Total | 2024 | 2025 - 2026 | 2027 - 2028 | 2029 and beyond | ||||||||||||||||||||||||||||
Long-term debt (1) | $ | 3,439 | $ | 305 | $ | 1,934 | $ | 403 | $ | 797 | ||||||||||||||||||||||
Interest and fee commitments (2) | 744 | 177 | 236 | 119 | 212 | |||||||||||||||||||||||||||
Finance and operating lease obligations | 5,741 | 453 | 844 | 761 | 3,683 | |||||||||||||||||||||||||||
Flight equipment purchase obligations (3) | 5,620 | 508 | 2,053 | 2,135 | 924 | |||||||||||||||||||||||||||
Other (4) | 131 | 65 | 46 | 20 | — | |||||||||||||||||||||||||||
Total future payments on contractual obligations | $ | 15,675 | $ | 1,508 | $ | 5,113 | $ | 3,438 | $ | 5,616 |
Consolidated Financial Statements: | Page | ||||
Report of Independent Registered Public Accounting Firm ( |
Year Ended December 31, | |||||||||||||||||
2023 | 2022 | 2021 | |||||||||||||||
Operating revenues: | |||||||||||||||||
Passenger | $ | $ | $ | ||||||||||||||
Other | |||||||||||||||||
Total operating revenues | |||||||||||||||||
Operating expenses: | |||||||||||||||||
Aircraft fuel | |||||||||||||||||
Salaries, wages and benefits | |||||||||||||||||
Landing fees and other rents | |||||||||||||||||
Aircraft rent | |||||||||||||||||
Depreciation and amortization | |||||||||||||||||
Maintenance, materials and repairs | |||||||||||||||||
Distribution | |||||||||||||||||
Special charges (credits) | ( | ||||||||||||||||
Loss on disposal of assets | |||||||||||||||||
Other operating | |||||||||||||||||
Total operating expenses | |||||||||||||||||
Operating income (loss) | ( | ( | ( | ||||||||||||||
Other (income) expense: | |||||||||||||||||
Interest expense | |||||||||||||||||
Loss (gain) on extinguishment of debt | ( | ||||||||||||||||
Capitalized interest | ( | ( | ( | ||||||||||||||
Interest income | ( | ( | ( | ||||||||||||||
Other (income) expense | |||||||||||||||||
Total other (income) expense | |||||||||||||||||
Income (loss) before income taxes | ( | ( | ( | ||||||||||||||
Provision (benefit) for income taxes | ( | ( | ( | ||||||||||||||
Net income (loss) | $ | ( | $ | ( | $ | ( | |||||||||||
Basic earnings (loss) per share | $ | ( | $ | ( | $ | ( | |||||||||||
Diluted earnings (loss) per share | $ | ( | $ | ( | $ | ( |
Year Ended December 31, | |||||||||||||||||
2023 | 2022 | 2021 | |||||||||||||||
Net income (loss) | $ | ( | $ | ( | $ | ( | |||||||||||
Unrealized gain (loss) on short-term investment securities and cash and cash equivalents, net of deferred taxes of $ | ( | ( | |||||||||||||||
Interest rate derivative loss reclassified into earnings, net of taxes of $ | |||||||||||||||||
Other comprehensive income (loss) | $ | $ | ( | $ | |||||||||||||
Comprehensive income (loss) | $ | ( | $ | ( | $ | ( |
December 31, 2023 | December 31, 2022 | ||||||||||
Assets | |||||||||||
Current assets: | |||||||||||
Cash and cash equivalents | $ | $ | |||||||||
Restricted cash | |||||||||||
Short-term investment securities | |||||||||||
Accounts receivable, net | |||||||||||
Income tax receivable | |||||||||||
Prepaid expenses and other current assets | |||||||||||
Total current assets | |||||||||||
Property and equipment: | |||||||||||
Flight equipment | |||||||||||
Ground property and equipment | |||||||||||
Less accumulated depreciation | ( | ( | |||||||||
Operating lease right-of-use assets | |||||||||||
Pre-delivery deposits on flight equipment | |||||||||||
Deferred heavy maintenance, net | |||||||||||
Other long-term assets | |||||||||||
Total assets | $ | $ | |||||||||
Liabilities and shareholders’ equity | |||||||||||
Current liabilities: | |||||||||||
Accounts payable | $ | $ | |||||||||
Air traffic liability | |||||||||||
Current maturities of long-term debt, net, and finance leases | |||||||||||
Current maturities of operating leases | |||||||||||
Other current liabilities | |||||||||||
Total current liabilities | |||||||||||
Long-term debt and finance leases, less current maturities | |||||||||||
Operating leases, less current maturities | |||||||||||
Deferred income taxes | |||||||||||
Deferred gains and other long-term liabilities | |||||||||||
Shareholders’ equity: | |||||||||||
Common stock: Common stock, $ | |||||||||||
Additional paid-in-capital | |||||||||||
Treasury stock, at cost: | ( | ( | |||||||||
Retained earnings | |||||||||||
Accumulated other comprehensive income (loss) | ( | ( | |||||||||
Total shareholders’ equity | |||||||||||
Total liabilities and shareholders’ equity | $ | $ |
Year Ended December 31, | |||||||||||||||||
2023 | 2022 | 2021 | |||||||||||||||
Operating activities: | |||||||||||||||||
Net income (loss) | $ | ( | $ | ( | $ | ( | |||||||||||
Adjustments to reconcile net loss to net cash provided by (used in) operations: | |||||||||||||||||
Losses reclassified from other comprehensive income | |||||||||||||||||
Share-based compensation | |||||||||||||||||
Allowance for doubtful accounts (recoveries) | ( | ( | |||||||||||||||
Amortization of debt issuance costs | |||||||||||||||||
Depreciation and amortization | |||||||||||||||||
Accretion of convertible debt and | |||||||||||||||||
Amortization of debt discount | |||||||||||||||||
Deferred income tax benefit | ( | ( | ( | ||||||||||||||
Fixed asset impairment charges | |||||||||||||||||
Loss on disposal of assets | |||||||||||||||||
Loss (gain) on extinguishment of debt | |||||||||||||||||
Changes in operating assets and liabilities: | |||||||||||||||||
Accounts receivable, net | ( | ( | ( | ||||||||||||||
Deposits and other assets | ( | ||||||||||||||||
Prepaid income taxes | |||||||||||||||||
Deferred heavy maintenance | ( | ( | ( | ||||||||||||||
Income tax receivable | |||||||||||||||||
Accounts payable | ( | ||||||||||||||||
Air traffic liability | ( | ( | |||||||||||||||
Other liabilities | |||||||||||||||||
Other | ( | ||||||||||||||||
Net cash provided by (used in) operating activities | ( | ( | |||||||||||||||
Investing activities: | |||||||||||||||||
Purchase of available-for-sale investment securities | ( | ( | ( | ||||||||||||||
Proceeds from the maturity and sale of available-for-sale investment securities | |||||||||||||||||
Proceeds from sale of property and equipment | |||||||||||||||||
Pre-delivery deposits on flight equipment, net of refunds | ( | ( | |||||||||||||||
Capitalized interest | ( | ( | ( | ||||||||||||||
Assets under construction for others | ( | ( | ( | ||||||||||||||
Purchase of property and equipment | ( | ( | ( | ||||||||||||||
Net cash provided by (used in) investing activities | ( | ( | ( | ||||||||||||||
Financing activities: | |||||||||||||||||
Proceeds from issuance of long-term debt | |||||||||||||||||
Proceeds from issuance of common stock and warrants | |||||||||||||||||
Payments on debt obligations | ( | ( | ( | ||||||||||||||
Payments for the early extinguishment of debt | ( | ( | |||||||||||||||
Payments on finance lease obligations | ( | ( | ( | ||||||||||||||
Reimbursement for assets under construction for others | |||||||||||||||||
Repurchase of common stock | ( | ( | ( | ||||||||||||||
Debt issuance costs | ( | ( | ( | ||||||||||||||
Net cash provided by (used in) financing activities | ( | ( | |||||||||||||||
Net increase (decrease) in cash, cash equivalents, and restricted cash | ( | ( | |||||||||||||||
Cash, cash equivalents, and restricted cash at beginning of period (1) | |||||||||||||||||
Cash, cash equivalents, and restricted cash at end of period (1) | $ | $ | $ | ||||||||||||||
Supplemental disclosures | |||||||||||||||||
Cash payments for: | |||||||||||||||||
Interest, net of capitalized interest | $ | $ | $ | ||||||||||||||
Income taxes paid (received), net | $ | ( | $ | ( | $ | ( | |||||||||||
Cash paid for amounts included in the measurement of lease liabilities: | |||||||||||||||||
Operating cash flows for operating leases | $ | $ | $ | ||||||||||||||
Financing cash flows for finance leases | $ | $ | $ | ||||||||||||||
Non-cash transactions: | |||||||||||||||||
Capital expenditures funded by finance lease borrowings | $ | $ | $ | ||||||||||||||
Capital expenditures funded by operating lease borrowings | $ | $ | $ | ||||||||||||||
Common Stock | Additional Paid-In Capital | Treasury Stock | Retained Earnings | Accumulated Other Comprehensive Income (Loss) | Total | ||||||||||||||||||||||||||||||
Balance at December 31, 2020 | $ | $ | $ | ( | $ | $ | ( | $ | |||||||||||||||||||||||||||
— | ( | — | — | ( | |||||||||||||||||||||||||||||||
Share-based compensation | — | — | — | — | |||||||||||||||||||||||||||||||
Repurchase of common stock | — | — | ( | — | — | ( | |||||||||||||||||||||||||||||
Changes in comprehensive income (loss) | — | — | — | — | |||||||||||||||||||||||||||||||
Issuance of common stock and warrants, net | — | — | — | ||||||||||||||||||||||||||||||||
Net income (loss) | — | — | — | ( | — | ( | |||||||||||||||||||||||||||||
Balance at December 31, 2021 | $ | $ | $ | ( | $ | $ | ( | $ | |||||||||||||||||||||||||||
Convertible debt conversions | — | — | — | — | |||||||||||||||||||||||||||||||
Share-based compensation | — | — | — | — | |||||||||||||||||||||||||||||||
Repurchase of common stock | — | — | ( | — | — | ( | |||||||||||||||||||||||||||||
Changes in comprehensive income (loss) | — | — | — | — | ( | ( | |||||||||||||||||||||||||||||
Issuance of common stock and warrants, net | — | — | — | ||||||||||||||||||||||||||||||||
Net income (loss) | — | — | — | ( | — | ( | |||||||||||||||||||||||||||||
Balance at December 31, 2022 | $ | $ | $ | ( | $ | $ | ( | $ | |||||||||||||||||||||||||||
Convertible debt conversions | — | — | — | — | |||||||||||||||||||||||||||||||
Share-based compensation | — | — | — | — | |||||||||||||||||||||||||||||||
Repurchase of common stock | — | — | ( | — | — | ( | |||||||||||||||||||||||||||||
Changes in comprehensive income (loss) | — | — | — | — | |||||||||||||||||||||||||||||||
Net income (loss) | — | — | — | ( | — | ( | |||||||||||||||||||||||||||||
Balance at December 31, 2023 | $ | $ | $ | ( | $ | $ | ( | $ |
Estimated Useful Life | |||||
Aircraft, engines and flight simulators | |||||
Spare rotables and flight assemblies | |||||
Other equipment and vehicles | |||||
Internal use software | |||||
Finance leases | Lease term or estimated useful life of the asset | ||||
Leasehold improvements | Lesser of lease term or estimated useful life of the improvement | ||||
Buildings | Lesser of lease term or |
Year Ended December 31, | |||||||||||||||||
2023 | 2022 | 2021 | |||||||||||||||
(in thousands) | |||||||||||||||||
Depreciation | $ | $ | $ | ||||||||||||||
Amortization of heavy maintenance | |||||||||||||||||
Amortization of capitalized software | |||||||||||||||||
Total depreciation and amortization | $ | $ | $ |
Twelve Months Ended December 31, | |||||||||||||||||
2023 | 2022 | 2021 | |||||||||||||||
(in thousands) | |||||||||||||||||
Operating revenues: | |||||||||||||||||
Fare | $ | $ | $ | ||||||||||||||
Non-fare | |||||||||||||||||
Total passenger revenues | |||||||||||||||||
Other | |||||||||||||||||
Total operating revenues | $ | $ | $ |
Consideration received from credit card loyalty programs | Portion of proceeds recognized immediately as marketing component | ||||||||||
Year Ended | (in thousands) | ||||||||||
December 31, 2023 | $ | $ | |||||||||
December 31, 2022 | |||||||||||
December 31, 2021 |
Year Ended December 31, | |||||||||||||||||
2023 | 2022 | 2021 | |||||||||||||||
(in thousands) | |||||||||||||||||
Utilization-based maintenance expense | $ | $ | $ | ||||||||||||||
Non-utilization-based maintenance expense | |||||||||||||||||
Total maintenance, materials and repairs | $ | $ | $ |
As of December 31, | |||||||||||
2023 | 2022 | ||||||||||
(in thousands) | |||||||||||
Salaries, wages and benefits | $ | $ | |||||||||
Airport obligations | |||||||||||
Federal excise and other passenger taxes and fees payable | |||||||||||
Fuel | |||||||||||
Aircraft maintenance | |||||||||||
Aircraft and facility lease obligations | |||||||||||
Interest payable | |||||||||||
Other | |||||||||||
Other current liabilities | $ | $ |
Number of Shares | Weighted-Average Grant Date Fair Value ($) | ||||||||||
Outstanding at December 31, 2022 | |||||||||||
Granted | |||||||||||
Vested | ( | ||||||||||
Forfeited | ( | ||||||||||
Outstanding at December 31, 2023 |
Year Ended December 31, | |||||||||||||||||
2023 | 2022 | 2021 | |||||||||||||||
(in thousands, except per-share amounts) | |||||||||||||||||
Numerator: | |||||||||||||||||
Net income (loss) | $ | ( | $ | ( | $ | ( | |||||||||||
Denominator: | |||||||||||||||||
Weighted-average shares outstanding, basic | |||||||||||||||||
Effect of dilutive stock awards | |||||||||||||||||
Adjusted weighted-average shares outstanding, diluted | |||||||||||||||||
Earnings (loss) per share: | |||||||||||||||||
Basic earnings (loss) per common share | $ | ( | $ | ( | $ | ( | |||||||||||
Diluted earnings (loss) per common share | $ | ( | $ | ( | $ | ( | |||||||||||
As of | ||||||||||||||||||||||||||
December 31, 2023 | December 31, 2022 | December 31, 2023 | December 31, 2022 | |||||||||||||||||||||||
(in millions) | (weighted-average interest rates) | |||||||||||||||||||||||||
$ | $ | % | % | |||||||||||||||||||||||
Fixed-rate term loans due through 2039 (1) | % | % | ||||||||||||||||||||||||
Unsecured term loans due through 2031 | % | % | ||||||||||||||||||||||||
Fixed-rate class A 2015-1 EETC due through 2028 | % | % | ||||||||||||||||||||||||
Fixed-rate class B 2015-1 EETC due through 2024 | % | % | ||||||||||||||||||||||||
Fixed-rate class C 2015-1 EETC due through 2023 | % | % | ||||||||||||||||||||||||
Fixed-rate class AA 2017-1 EETC due through 2030 | % | % | ||||||||||||||||||||||||
Fixed-rate class A 2017-1 EETC due through 2030 | % | % | ||||||||||||||||||||||||
Fixed-rate class B 2017-1 EETC due through 2026 | % | % | ||||||||||||||||||||||||
Fixed-rate class C 2017-1 EETC due through 2023 | % | % | ||||||||||||||||||||||||
Convertible notes due in 2025 | % | % | ||||||||||||||||||||||||
Convertible notes due in 2026 | % | % | ||||||||||||||||||||||||
Long-term debt | $ | $ | ||||||||||||||||||||||||
Less current maturities | ||||||||||||||||||||||||||
Less unamortized discount, net | ||||||||||||||||||||||||||
Total | $ | $ |
December 31, 2023 | ||||||||
(in millions) | ||||||||
2024 | $ | |||||||
2025 | ||||||||
2026 | ||||||||
2027 | ||||||||
2028 | ||||||||
2029 and beyond | ||||||||
Total debt principal payments | $ |
Twelve Months Ended December 31, | |||||||||||||||||
2023 | 2022 | 2021 | |||||||||||||||
(in thousands) | |||||||||||||||||
$ | $ | $ | |||||||||||||||
Fixed-rate term loans | |||||||||||||||||
Unsecured term loans | |||||||||||||||||
Class A 2015-1 EETC | |||||||||||||||||
Class B 2015-1 EETC | |||||||||||||||||
Class C 2015-1 EETC | |||||||||||||||||
Class AA 2017-1 EETC | |||||||||||||||||
Class A 2017-1 EETC | |||||||||||||||||
Class B 2017-1 EETC | |||||||||||||||||
Class C 2017-1 EETC | |||||||||||||||||
Convertible notes (2) | ( | ( | |||||||||||||||
Revolving credit facilities | |||||||||||||||||
Finance leases | |||||||||||||||||
Commitment and other fees | |||||||||||||||||
Amortization of deferred financing costs | |||||||||||||||||
Total | $ | $ | $ |
Finance Leases | Operating Leases | Total Operating and Finance Lease Obligations | ||||||||||||||||||||||||||||||
Aircraft and Spare Engine Leases | Property Facility Leases | Other | ||||||||||||||||||||||||||||||
(in thousands) | ||||||||||||||||||||||||||||||||
2024 | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||
2025 | ||||||||||||||||||||||||||||||||
2026 | ||||||||||||||||||||||||||||||||
2027 | ||||||||||||||||||||||||||||||||
2028 | ||||||||||||||||||||||||||||||||
2029 and thereafter | ||||||||||||||||||||||||||||||||
Total minimum lease payments | $ | $ | $ | $ | $ | |||||||||||||||||||||||||||
Less amount representing interest | ||||||||||||||||||||||||||||||||
$ | $ | $ | $ | $ | ||||||||||||||||||||||||||||
$ | $ | $ | $ | $ |
Year Ended December 31, | |||||||||||
2023 | 2022 | ||||||||||
(in thousands) | |||||||||||
Finance lease cost | |||||||||||
Amortization of leased assets | $ | $ | |||||||||
Interest of lease liabilities | |||||||||||
Operating lease cost | |||||||||||
Operating lease cost (1) | |||||||||||
Short-term lease cost (1) | |||||||||||
Variable lease cost (1) | |||||||||||
Total lease cost | $ | $ |
December 31, 2023 | December 31, 2022 | ||||||||||
Weighted-average remaining lease term | |||||||||||
Operating leases | |||||||||||
Finance leases | |||||||||||
Weighted-average discount rate | |||||||||||
Operating leases | % | % | |||||||||
Finance leases | % | % |
Year Ended December 31, | |||||||||||||||||
2023 | 2022 | 2021 | |||||||||||||||
(in thousands) | |||||||||||||||||
Current: | |||||||||||||||||
Federal | $ | $ | $ | ||||||||||||||
State and local | |||||||||||||||||
Foreign | |||||||||||||||||
Total current expense (benefit) | |||||||||||||||||
Deferred: | |||||||||||||||||
Federal | ( | ( | ( | ||||||||||||||
State and local | ( | ( | ( | ||||||||||||||
Total deferred expense (benefit) | ( | ( | ( | ||||||||||||||
Total income tax expense (benefit) | $ | ( | $ | ( | $ | ( |
Year Ended December 31, | |||||||||||||||||
2023 | 2022 | 2021 | |||||||||||||||
Expected provision at federal statutory tax rate | % | % | % | ||||||||||||||
State tax expense, net of federal benefit | % | % | % | ||||||||||||||
Permanent tax differences | ( | % | ( | % | ( | % | |||||||||||
Premium on convertible debt repurchase | % | % | ( | % | |||||||||||||
Valuation allowance | ( | % | ( | % | ( | % | |||||||||||
Other | ( | % | ( | % | ( | % | |||||||||||
Total income tax expense (benefit) | % | % | % |
December 31, | |||||||||||
2023 | 2022 | ||||||||||
(in thousands) | |||||||||||
Deferred tax assets: | |||||||||||
Income tax credits | $ | $ | |||||||||
Net operating losses | |||||||||||
Deferred revenue | |||||||||||
Nondeductible accruals | |||||||||||
Deferred manufacturing credits | |||||||||||
Loan liability | |||||||||||
Operating lease liability | |||||||||||
Interest expense | |||||||||||
Other | |||||||||||
Valuation allowance | ( | ( | |||||||||
Deferred tax assets | $ | ||||||||||
Deferred tax liabilities: | |||||||||||
Property, plant and equipment | |||||||||||
Accrued aircraft and engine maintenance | |||||||||||
Right-of-use asset | |||||||||||
Other | |||||||||||
Deferred tax liabilities | |||||||||||
Net deferred tax assets (liabilities) | $ | ( | $ | ( | |||||||
Employee Groups | Representative | Amendable Date (1) | Percentage of Workforce | |||||||||||||||||
Pilots | Air Line Pilots Association, International (ALPA) | January 2025 | ||||||||||||||||||
Flight Attendants | Association of Flight Attendants (AFA-CWA) | January 2026 | ||||||||||||||||||
Dispatchers | Professional Airline Flight Control Association (PAFCA) | October 2023 | ||||||||||||||||||
Ramp Service Agents | International Association of Machinists and Aerospace Workers (IAMAW) | November 2026 | ||||||||||||||||||
Passenger Service Agents | Transport Workers Union of America (TWU) | February 2027 | ||||||||||||||||||
Aircraft Maintenance Technicians | Aircraft Mechanics Fraternal Association (AMFA) (2) | N/A (2) |
As of December 31, | |||||||||||||||||||||||||||||
2023 | 2022 | ||||||||||||||||||||||||||||
Carrying Value | Estimated Fair Value | Carrying Value | Estimated Fair Value | Fair value level hierarchy | |||||||||||||||||||||||||
(in millions) | |||||||||||||||||||||||||||||
$ | $ | $ | $ | Level 3 | |||||||||||||||||||||||||
Fixed-rate term loans | Level 3 | ||||||||||||||||||||||||||||
Unsecured term loans | Level 3 | ||||||||||||||||||||||||||||
2015-1 EETC Class A | Level 2 | ||||||||||||||||||||||||||||
2015-1 EETC Class B | Level 2 | ||||||||||||||||||||||||||||
2015-1 EETC Class C | Level 2 | ||||||||||||||||||||||||||||
2017-1 EETC Class AA | Level 2 | ||||||||||||||||||||||||||||
2017-1 EETC Class A | Level 2 | ||||||||||||||||||||||||||||
2017-1 EETC Class B | Level 2 | ||||||||||||||||||||||||||||
2017-1 EETC Class C | Level 2 | ||||||||||||||||||||||||||||
Level 2 | |||||||||||||||||||||||||||||
Level 2 | |||||||||||||||||||||||||||||
Total long-term debt | $ | $ | $ | $ |
Fair Value Measurements as of December 31, 2023 | |||||||||||||||||||||||
Total | Level 1 | Level 2 | Level 3 | ||||||||||||||||||||
(in millions) | |||||||||||||||||||||||
Cash and cash equivalents | $ | $ | $ | $ | |||||||||||||||||||
Restricted cash | |||||||||||||||||||||||
Short-term investment securities | |||||||||||||||||||||||
Total assets | $ | $ | $ | $ | |||||||||||||||||||
$ | $ | $ | $ | ||||||||||||||||||||
Total liabilities | $ | $ | $ | $ |
Fair Value Measurements as of December 31, 2022 | |||||||||||||||||||||||
Total | Level 1 | Level 2 | Level 3 | ||||||||||||||||||||
(in millions) | |||||||||||||||||||||||
Cash and cash equivalents | $ | $ | $ | $ | |||||||||||||||||||
Restricted cash | |||||||||||||||||||||||
Short-term investment securities | |||||||||||||||||||||||
Total assets | $ | $ | $ | $ | |||||||||||||||||||
Total liabilities | $ | $ | $ | $ |
2023 | 2022 | 2021 | |||||||||||||||
(in millions) | |||||||||||||||||
DOT—Domestic | $ | $ | $ | ||||||||||||||
DOT—Latin America and Caribbean | |||||||||||||||||
Total | $ | $ | $ |
Description of the Matter | As explained in Notes 1 and 14 to the financial statements, the Company’s lease agreements often contain provisions that require the Company to return aircraft airframes, engines and other aircraft components to the lessor in a certain condition or pay an amount to the lessor based on the actual return condition. Management assesses the need to accrue lease return costs throughout the year or whenever facts and circumstances warrant an assessment. For the year ended December 31, 2023, the Company recorded $14 million of supplemental rent, which is made up of probable and estimable lease return costs. Auditing the estimate of lease return costs for engines was complex because of the significant judgment involved in determining the timing of future maintenance events. | |||||||
How We Addressed the Matter in Our Audit | We obtained an understanding, evaluated the design and tested the operating effectiveness of the Company’s controls that address the risks of material misstatement relating to the measurement of lease return costs. For example, we tested controls over management’s review of the estimated timing of future maintenance events. To test the estimate of lease return costs, our audit procedures included, among others, testing the assumptions used and the accuracy and completeness of the underlying data used in the calculations. For example, to test the assumptions related to the timing of future maintenance events, we compared projected event timing to the time interval between recently completed maintenance events, regulatory requirements for aircraft and engine maintenance, current and projected utilization metrics for the aircraft, and changes to the fleet plan, including the anticipated effect of the accelerated inspections required due to manufacturing defects in engines. We also tested the historical accuracy of management’s forecasts of maintenance events by comparing when recent maintenance events occurred to management’s initial projections. | |||||||
Exhibit No. | Description of Exhibit | |||||||
2.1 | ||||||||
2.2 | ||||||||
2.3 | ||||||||
2.4 | ||||||||
3.1 | ||||||||
3.2 | ||||||||
3.3 | ||||||||
4.1 | ||||||||
4.2 | ||||||||
4.3 | ||||||||
4.4 | ||||||||
4.5 | ||||||||
4.6 | ||||||||
4.7 | ||||||||
4.8 | ||||||||
4.9 | ||||||||
4.10 | ||||||||
4.11 | ||||||||
4.12 | ||||||||
4.13 | ||||||||
4.14 | ||||||||
4.15 | ||||||||
4.16 | ||||||||
4.17 | ||||||||
4.18 | ||||||||
4.19 | ||||||||
4.20 | ||||||||
4.21 |
4.22 | ||||||||
4.23 | ||||||||
4.24 | ||||||||
4.25 | ||||||||
4.26 | ||||||||
4.27 | ||||||||
4.28 | ||||||||
4.29 | ||||||||
4.30 | ||||||||
4.31 | ||||||||
4.32 | ||||||||
4.33 | ||||||||
4.34 | ||||||||
4.35 | ||||||||
4.36 | ||||||||
4.37 | ||||||||
4.38 | ||||||||
4.39 | ||||||||
4.40 | ||||||||
4.41 | ||||||||
4.42 | ||||||||
4.43 | ||||||||
4.44 | ||||||||
4.45 | ||||||||
4.46 | ||||||||
4.47 | ||||||||
4.48 | ||||||||
4.49 | ||||||||
4.50 | ||||||||
4.51 | ||||||||
4.52 | ||||||||
4.53 | ||||||||
4.54 | ||||||||
4.55 | ||||||||
4.56 | ||||||||
4.57 | ||||||||
4.58 | ||||||||
4.59 | ||||||||
4.60 | ||||||||
4.61 | ||||||||
4.62 | ||||||||
4.63 | ||||||||
4.64 | ||||||||
4.65 | ||||||||
4.66 | ||||||||
4.67 | ||||||||
10.1+ | ||||||||
10.2+ | ||||||||
10.3 | ||||||||
10.4 | ||||||||
10.5+ | ||||||||
10.6+ | ||||||||
10.7+ | ||||||||
10.8+ | ||||||||
10.9 | ||||||||
10.10+ | ||||||||
10.11+ | ||||||||
10.12+ | ||||||||
10.13 | ||||||||
10.14 | ||||||||
10.15 | ||||||||
10.16 | ||||||||
10.17 | ||||||||
10.18 | ||||||||
10.19+ | ||||||||
10.20+ | ||||||||
10.21 | ||||||||
10.22 | ||||||||
10.23 |
10.24† | ||||||||
10.25+ | ||||||||
10.26† | ||||||||
10.27+ | ||||||||
10.28+ | ||||||||
10.29+ | ||||||||
10.30+ | ||||||||
10.31 | ||||||||
10.32 | ||||||||
10.33 | ||||||||
10.34+ | ||||||||
10.35 | ||||||||
10.36 | ||||||||
10.37† | ||||||||
10.38 | ||||||||
10.39 | ||||||||
10.40+ | ||||||||
10.41 | ||||||||
10.42† | ||||||||
10.43† | ||||||||
10.44† | Airbus A320 NEO Family Purchase Agreement, dated as of December 20, 2019, between Airbus S.A.S. and Spirit Airlines ,Inc. as amended by Amendment No. 1 dated as of June 24, 2020, together with the amended and restated Letter Agreement No. 8, dated as of December 20, 2019, filed as Exhibit 10.1 to the Company's Form 10-Q dated July 22, 2020 and Amendment No. 6 dated as of July 31, 2023, together with the Second Amended and Restated Letter Agreement No. 4, dated as of July 31, 2023, filed as exhibit 10.1 to the Company’s Form 10-Q dated October 26, 2023, is hereby incorporated by reference. | |||||||
10.45† | ||||||||
10.46† | ||||||||
10.47† | ||||||||
10.48† | ||||||||
10.49† | ||||||||
10.50† | ||||||||
10.51† | ||||||||
10.52† | ||||||||
10.53† | ||||||||
10.54† | ||||||||
10.55† | ||||||||
† | Confidential treatment granted for certain portions of this Exhibit pursuant to Rule 406 under the Securities Act or Rule 24b-2 under the Exchange Act, which portions are omitted and filed separately with the Securities and Exchange Commission. | ||||
+ | Indicates a management contract or compensatory plan or arrangement. | ||||
* | Exhibits 32.1 is being furnished and shall not be deemed to be “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to the liability of that section, nor shall such exhibits be deemed to be incorporated by reference in any registration statement or other document filed under the Securities Act or the Exchange Act, except as otherwise specifically stated in such filing. |
SPIRIT AIRLINES, INC. | |||||||||||
Date: February 9, 2024 | By: | /s/ Scott M. Haralson | |||||||||
Scott M. Haralson | |||||||||||
Executive Vice President and Chief Financial Officer |
Signature | Title | Date | ||||||
/s/ Edward M. Christie | President, Chief Executive Officer and Director (Principal Executive Officer) | February 9, 2024 | ||||||
Edward M. Christie | ||||||||
/s/ Scott M. Haralson | Executive Vice President, Chief Financial Officer (Principal Financial Officer) | February 9, 2024 | ||||||
Scott M. Haralson | ||||||||
/s/ Brian J. McMenamy | Vice President, Controller (Principal Accounting Officer) | February 9, 2024 | ||||||
Brian J. McMenamy | ||||||||
/s/ H. McIntyre Gardner | Director (Chairman of the Board) | February 9, 2024 | ||||||
H. McIntyre Gardner | ||||||||
/s/ Mark B. Dunkerley | Director | February 9, 2024 | ||||||
Mark B. Dunkerley | ||||||||
/s/ Robert D. Johnson | Director | February 9, 2024 | ||||||
Robert D. Johnson | ||||||||
/s/ Barclay G. Jones | Director | February 9, 2024 | ||||||
Barclay G. Jones | ||||||||
/s/ Christine P. Richards | Director | February 9, 2024 | ||||||
Christine P. Richards | ||||||||
/s/ Myrna M. Soto | Director | February 9, 2024 | ||||||
Myrna M. Soto | ||||||||
/s/ Dawn M. Zier | Director | February 9, 2024 | ||||||
Dawn M. Zier |
Exhibit B2 | FORM OF A MANUFACTURER SPECIFICATION CHANGE NOTICE |
2 | SPECIFICATION |
2.1 | Aircraft Specification |
2.2 | Specification Amendment |
2.2.1 | Specification Change Notice |
2.2.2 | Development Changes |
2.2.2.1 | Manufacturer Specification Changes Notices |
2.2.2.2 | Seller may revise the Specification to incorporate Development Changes having no adverse effect on Aircraft performance, weight, Aircraft Base Price, Delivery Date of the Aircraft affected thereby or interchangeability or replaceability requirements under the Specification, without the Buyer's consent. All such Development Changes shall be incorporated [***] the details of such changes shall be made available through the relevant application in AirbusWorld. |
2.3 | Aircraft Design Weights and Propulsion Systems |
2.3.1 | Aircraft design weights |
MTOW | MLW | MZFW | |||||||||
A319 NEO Aircraft | [***] | [***] | [***] | ||||||||
A320 NEO Aircraft | [***] | [***] | [***] | ||||||||
A321 NEO Aircraft | [***] | [***] | [***] |
2.3.2 | Propulsion Systems |
CFM | IAE | |||||||
A319 NEO | [***] | [***] | ||||||
A320 NEO | [***] | [***] | ||||||
A321 NEO | [***] | [***] |
2.4 | Milestones |
2.4.1 | Customization Milestones Chart |
1) | the Buyer shall take certain actions and decisions, including the provision of certain information and documentation to the Seller; |
2) | specific SCNs shall be executed; and |
3) | the contractual definition of the Aircraft shall be finalized by way of execution of all SCNs (the "Contractual Definition Freeze" or "CDF"), in order to enable a) the Seller to manufacture the Aircraft and b) incorporation of such SCNs into the manufacturing of the Aircraft and the Delivery of the Aircraft in the Scheduled Delivery Month. |
2.4.2.1 | Any delay or failure by the Buyer to comply with any of the requirements referred to in Clauses 2.3 and 2.4.1 above may delay the performance by the Seller of its obligations under the Agreement and, in addition to any other rights and remedies available to the Seller under the Agreement and at law, shall in particular relieve the Seller of any obligation to deliver certain Aircraft within their respective Scheduled Delivery Month(s) [***]. |
2.4.2.2 | [***] |
3.1 | Base Price of the Aircraft |
3.1.1 | Base Price of the Airframe |
(i) | the Airframe's Base Price as defined in the Standard Specification, excluding Buyer Furnished Equipment but including nacelles, thrust reversers, and the Weights as set forth in Clause 2.3.1 above, which is: |
(ii) | the sum of the Base Prices of all SCNs set forth in Appendix 1 to Exhibit A which is, |
(iii) | the Base Price of the master charge, which is applicable if a CFM LEAP-1A Propulsion System is selected, which is: |
3.1.2 | Base Price of the Propulsion Systems |
(b) | The IAE Propulsion Systems Base Prices have been computed from the IAE LLC Propulsion Reference Prices as set forth in Part 3 of Exhibit C to the Agreement. |
3.2 | Final Price of the Aircraft |
(i) | the Base Price of the Airframe, as adjusted to the applicable Delivery Date of such Aircraft in accordance with Clause 4.1; plus |
(ii) | the aggregate of all increases and decreases to the Base Price of the Airframe following execution of this Agreement as set out in any Specification Change Notice or MSCN applicable to the Airframe subsequent to the date of this Agreement in each case priced in [***] as revised to the date of the Delivery Date in accordance with the Seller Price Revision Formula; plus |
(iii) | the Propulsion Systems Reference Price as adjusted to the Delivery Date of such Aircraft in accordance with Clause 4.2; plus |
(iv) | the aggregate of all increases or decreases to the Propulsion Systems Reference Price as agreed in any Specification Change Notice applicable to the Propulsion Systems subsequent to the date of this Agreement as revised to the Delivery Date in accordance with Clause 4.2; plus |
(v) | any other amount owed by the Buyer to the Seller pursuant to this Agreement and/or any other written agreement between the Buyer and Seller, [***]. |
4.1 | Seller Price Revision Formula |
4.2 | Propulsion Systems Price Revision |
4.2.1 | The Reference Price is subject to adjustment up to and including the Delivery Date in accordance with the Propulsion Systems Price Revision Formula. |
4.2.2 | The Reference Price, the prices of any related equipment, the Propulsion Systems designation(s) and the Propulsion Systems Price Revision Formula are based on information that the Seller has received from the Propulsions Systems Manufacturer and are subject to amendment by the Propulsion Systems Manufacturer at any time prior to Delivery. If the Propulsion Systems Manufacturer makes any such amendment, the amendment shall be deemed to be incorporated into this Agreement and the Reference Price, the prices of the related equipment, the Propulsion Systems designation(s) and the Propulsion Systems Price Revision Formula shall be adjusted accordingly. The Seller agrees to notify the Buyer as soon as the Seller receives notice of any such amendment from the Propulsion Systems Manufacturer. |
5.1 | Seller's Account |
5.2 | [***] |
5.3 | Predelivery Payments |
5.3.1 | Predelivery Payments are nonrefundable and shall be paid by the Buyer to the Seller for the Aircraft. |
5.3.2 | "Predelivery Payment Reference Price" means, with respect to an Aircraft to be delivered in calendar year T, the amount determined in accordance with the following formula: |
5.3.3 | The Buyer shall pay Predelivery Payments on the dates and in the amounts set forth below. |
Payment Date | Percentage of Predelivery Payment Reference Price | |||||||
[***] | [***] | [***] |
5.3.4 | The Seller shall be entitled to hold and use any Predelivery Payment as absolute owner thereof and shall be under no obligation to segregate any Predelivery Payment, or any amount equal thereto, from the Seller's funds generally. |
5.4 | Payment of Balance of the Final Price of the Aircraft |
5.5 | Taxes |
5.7 | [***] |
5.8 | Overdue Payments |
5.8.1 | If any payment due to the Seller is not received by the Seller on the date when due, the Buyer shall pay to the Seller on demand [***]. |
5.9 | Property Interest |
5.10 | Payment in Full |
5.11 | Other Charges |
6.1 | [***] |
6.2 | Inspection |
6.2.1 | The Buyer or its duly authorized representatives (the "Buyer's Inspector(s)") shall be entitled to inspect the manufacture and assembly of the Airframe and all materials and parts obtained by the Seller for the manufacture and assembly of the Airframe (each an "Inspection") on the following terms and conditions; |
(i) | any Inspection shall be conducted pursuant to the Seller's system of inspection and Airbus procedures, as developed under the supervision of the relevant Aviation Authority and disclosed in writing to the Buyer; |
(ii) | the Buyer's Inspector(s) shall have access to such relevant technical data as is reasonably necessary for the purpose of the Inspection; |
(iii) | any Inspection and any related discussions with the Seller and its personnel by the Buyer's Inspector(s) shall be at reasonable times during business hours and shall take place in the presence of the relevant inspection department personnel of the Seller; |
(iv) | the Inspections shall be performed in a manner so as not to unduly delay or hinder the manufacture or assembly of the Aircraft, the performance of this Agreement by the Seller or any other work in progress at the Manufacture Facilities. |
6.2.2 | Location of Inspections |
6.3 | Seller's Service for Buyer's Inspector(s) |
7.1 | Type Certification |
7.2 | Export Certificate of Airworthiness |
7.3 | Specification Changes before Aircraft Ready for Delivery |
7.4 | [***] |
8.1 | Technical Acceptance Process |
8.1.1 | Prior to Delivery, the Aircraft shall undergo a technical acceptance process developed by the Seller, the purpose of which is for the Seller to demonstrate to the Buyer compliance with the delivery requirements for such Aircraft under this Agreement (the "Technical Acceptance Process"). [***] |
8.1.2 | The Technical Acceptance Process shall: |
(i) | commence on a date notified by the Seller to the Buyer with no less than [***] advance notice, |
(ii) | take place at the Delivery Location, |
(iii) | be carried out by the personnel of the Seller, and |
(iv) | include a technical acceptance flight that shall not exceed [***] unless additional time is necessary to complete the Technical Acceptance Process (including any additional test flights as may be required to complete the Technical Acceptance Process) (the "Technical Acceptance Flight"). |
8.2 | Buyer's Attendance |
8.2.1 | Buyer's Inspectors shall be entitled to attend the Technical Acceptance Process. |
8.2.2 | If Buyer elects to attend the Technical Acceptance Process, the Buyer's Inspectors: |
(i) | shall comply with the reasonable requirements of the Seller as advised to the Buyer, with the intention of completing the Technical Acceptance Process within [***], and |
(ii) | may have a maximum of [***] of its representatives (no more than [***] of whom shall have access to the cockpit at any one time) accompany the Seller's representatives on the Technical Acceptance Flight, during which the Buyer's representatives shall comply with the instructions of the Seller's representatives. |
8.2.3 | If the Buyer does not attend (other than as a result of the Seller's failure to notify the Buyer as required by Clause 8.1.2(i)) or interferes with |
8.3 | Certificate of Acceptance |
8.5 | Aircraft Utilization |
9.1 | Delivery Schedule |
9.1.1 | Subject to Clauses 2, 7, 8, 10 and 18, the Seller shall have the Aircraft Ready for Delivery at the Delivery Location within the following quarters (each a "Scheduled Delivery Quarter"): |
9.1.2 | The scheduled delivery month ("Scheduled Delivery Month") of each Aircraft shall be notified in writing to the Buyer by the Seller no later than [***]. |
9.1.3 | The Seller shall give the Buyer at least [***] advance written notice of the anticipated date on which the Aircraft shall be Ready for Delivery. Such notice shall also include the starting date and the planned schedule of the Technical Acceptance Process. Thereafter the Seller shall notify the Buyer of any change to such dates. |
9.2 | Delivery Process |
9.2.1 | The Buyer shall send the Buyer's Inspectors to the Delivery Location in order to take Delivery of the Aircraft on the date the Aircraft is Ready for Delivery, and remove the Aircraft from the Delivery Location within [***]. |
9.2.2 | The Seller shall deliver and transfer title to the Aircraft to the Buyer free and clear of all Liens (except for any Liens or encumbrances created by or on behalf of the Buyer) provided that the Balance of the Final Price of such Aircraft and all other amounts stated to be due hereunder on the Delivery Date have been paid by the Buyer pursuant to Clause 5.4 and that the Certificate of Acceptance has been signed and delivered to the Seller pursuant to Clause 8.3. The Seller shall provide the Buyer with (a) a bill of sale in (i) the form set forth in Exhibit E-1, if the Delivery Location is in Mobile, Alabama and (ii) in the form set forth in Exhibit E-2, if the Delivery Location is in any place other than Mobile, Alabama (the "Bill of Sale"), and/or (b) such other documentation confirming transfer of title and receipt of the Final Contract Price as may reasonably be requested by the Buyer and (c) if Mobile, Alabama is the Delivery Location, a warranty from Airbus S.A.S in the form of Exhibit J. Title to, property in and risk of loss of or damage to the Aircraft shall pass to the Buyer contemporaneously with the delivery by the Seller to the Buyer of such Bill of Sale. |
9.2.3 | If, when the Aircraft is Ready for Delivery, subject to 9.4, the Buyer fails to: |
9.3 | Flyaway |
9.3.1 | As applicable, the Buyer and the Seller shall cooperate to obtain any licenses that may be required by the Aviation Authority of the Delivery Location for the purpose of exporting the Aircraft. |
9.3.2 | [***] The Buyer shall make direct arrangements with the supplying companies for the fuel and oil required for all post-Delivery flights. |
9.4 | Delivery on the date on which an Aircraft is Ready for Delivery |
10.1 | Scope of Excusable Delay |
10.2 | Consequences of Excusable Delay |
(i) | the Seller shall notify the Buyer of such Excusable Delay as soon as practicable after becoming aware of the same; |
(ii) | the Seller shall not be responsible for any damages arising from or in connection with such Excusable Delay suffered or incurred by the Buyer; |
(iii) | the Seller shall not be deemed to be in default in the performance of its obligations hereunder as a result of such Excusable Delay; |
(iv) | the Seller shall as soon as practicable after the removal of the cause of such delay resume performance of its obligations under this Agreement and in particular shall notify the Buyer of the revised Scheduled Delivery Month. |
10.3 | Termination on Excusable Delay |
10.3.1 | [***], then either party may terminate this Agreement with respect to the affected Aircraft, by giving written notice to the other party [***]. However, the [***]. |
10.3.2 | If the Seller advises the Buyer in its notice of a revised Scheduled Delivery Month pursuant to Clause 10.2.1(iv) that there shall be a delay in Delivery of an Aircraft of more than [***], then either party may terminate this Agreement with respect to the affected Aircraft. Termination shall be made by giving written notice to the other party within [***] after the Buyer's receipt of the notice of a revised Scheduled Delivery Month. |
10.3.3 | If this Agreement is not terminated under the terms of Clause 10.3.1 or 10.3.2, then the Seller shall be entitled to reschedule Delivery. The Seller shall notify the Buyer of the new Scheduled Delivery Month after the [***] referred to in Clause 10.3.1 or 10.3.2, and this new Scheduled Delivery Month shall be deemed to be an amendment to the applicable Scheduled Delivery Month in Clause 9.1. |
10.4 | Total Loss, Destruction or Damage |
10.5 | Termination Rights Exclusive |
10.6 | Remedies |
11.1 | [***] |
11.2 | Renegotiation |
11.3 | Termination |
11.4 | Remedies |
12 | WARRANTIES AND SERVICE LIFE POLICY |
12.1 | Standard Warranty |
12.1.1 | Nature of Warranty |
12.1.2 | Exclusions |
12.1.3 | Warranty Period |
12.1.4 | Limitations of Warranty |
12.1.4.1 | [***] |
12.1.4.2 | In the event of a defect covered by Clauses 12.1.1 (iii), 12.1.1 (iv) and 12.1.2 (ii) becoming apparent within the Warranty Period, the Seller shall also, if so requested by the Buyer in writing, correct such defect in any Aircraft which has not yet been delivered to the Buyer [***] |
12.1.4.3 | Cost of inspection |
12.1.5 | Warranty Claim Requirements |
(i) | the defect having become apparent within the Warranty Period; |
(ii) | the Buyer having filed a warranty claim within [***] of discovering the defect; |
(iii) | the Buyer having submitted to the Seller evidence reasonably satisfactory to the Seller that the claimed defect is due to a matter warranted under this Clause 12.1; |
(iv) | the Seller having received a Warranty Claim substantially complying with the provisions of Clause 12.1.6 below. |
12.1.6 | Warranty Administration |
12.1.6.1 | Claim Determination |
12.1.6.2 | Transportation Costs |
12.1.6.3 | Return of an Aircraft |
12.1.6.4 | On Aircraft Work by the Seller |
12.1.6.5 | Warranty Claim Substantiation |
(a) | description of defect and action taken, if any, |
(b) | date of incident and/or removal date, |
(c) | description of Warranted Part claimed to be defective, |
(d) | part number, |
(e) | serial number (if applicable), |
(f) | position on Aircraft, |
(g) | total flying hours or calendar time, as applicable, at the date of defect appearance, |
(h) | time since last shop visit at the date of defect appearance, |
(i) | Manufacturer Serial Number of the Aircraft and/or its registration, |
(j) | Aircraft total flying hours and/or number of landings at the date of defect appearance, |
(k) | Warranty Claim number, |
(l) | date of Warranty Claim, |
(m) | Delivery Date of Aircraft or Warranted Part to the Buyer, |
12.1.6.6 | Replacements |
(i) | when the Seller has custody, possession, or control of a returned Aircraft, component, accessory, equipment or part to which the Buyer has title, the Seller shall have such responsibility therefor as is chargeable by law to a bailee for hire, but the Seller shall not be liable for loss of use, and; |
(ii) | title to and risk of loss of a returned component, accessory, equipment or part shall pass to the Seller upon shipment by the Seller to the Buyer of any item furnished by the Seller to the Buyer as a replacement therefor. |
12.1.6.7 | Rejection |
12.1.6.8 | Inspection |
12.1.7 | Inhouse Warranty |
12.1.7.1 | Seller's Authorization |
12.1.7.2 | Conditions for Seller's Authorization |
12.1.7.4 | Inhouse Warranty Claim Substantiation |
(a) | a report of technical findings with respect to the defect, |
(b) | for parts required to remedy the defect: |
(c) | detailed number of labor hours, |
(d) | Inhouse Warranty Labor Rate, |
(e) | total claim value. |
12.1.7.5 | Credit |
12.1.7.6 | Limitation |
12.1.7.7 | Scrapped Material |
12.1.8 | Standard Warranty in case of Pooling or Leasing Arrangements |
12.1.9 | Warranty for Corrected, Replaced or Repaired Warranted Parts |
12.1.10 | Accepted Industry Standard Practices Normal Wear and Tear |
12.1.11 | DISCLAIMER OF SELLER LIABILITY |
12.2 | Service Life Policy |
12.2.1 | In addition to the warranties set forth in Clause 12.1, the Seller further agrees that should a Failure occur in any Item (as these terms are defined hereinbelow) that has not suffered from an extrinsic force, then, subject to the general conditions and limitations set forth in Clause 12.2.4, the provisions of this Clause 12.2 shall apply. |
(i) | "Item" means any item listed in Exhibit "F"; |
(ii) | "Failure" means [***]. |
12.2.2 | Periods and Seller's Undertakings |
12.2.4 | General Conditions and Limitations |
12.2.4.1 | The undertakings set forth in this Clause 12.2 shall be valid after the period of the Seller's warranty applicable to an Item under Clause 12.1. |
12.2.4.2 | The Buyer's remedies and the Seller's obligations and liabilities under this Service Life Policy are subject to compliance by the Buyer with the following conditions: |
(i) | the Buyer shall maintain log books and other historical records with respect to each Item, adequate to enable the Seller to determine whether the alleged Failure is covered by this Service Life Policy and, if so, to define the portion of the costs [***]; |
(ii) | [***]; |
(iii) | the Buyer shall comply with the conditions of Clause 12.1.10; |
(iv) | [***]; |
(v) | the Buyer shall report any breakage or defect in an Item in writing to the Seller within [***] after such breakage or defect becomes apparent to the Buyer, whether or not said breakage or defect can reasonably be expected to occur in any other aircraft, and the Buyer shall have provided to the Seller sufficient detail on the breakage or defect to enable the Seller acting reasonably to determine whether said breakage or defect is subject to this Service Life Policy. |
12.2.4.3 | Except as otherwise provided for in this Clause 12.2, any claim under this Service Life Policy shall be administered as provided for in, and shall be subject to the terms and conditions of, Clause 12.1.6. |
12.2.4.4 | In the event of the Seller having issued a modification applicable to an Aircraft, the purpose of which is to avoid a Failure, the Seller shall supply the necessary modification kit [***] that will be applicable to all operators subject to the same fleetwide coverage. If such a kit is so offered to the Buyer, then, to the extent of such Failure and any Failures that could ensue therefrom, the validity of the Seller's commitment under this Clause 12.2 shall be subject to the Buyer incorporating such modification in the relevant Aircraft, as promulgated by the Seller and in accordance with the Seller's instructions, within a reasonable time. |
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 |
12.3 | Supplier Warranties and Service Life Policies |
12.3.1 | Definitions |
12.3.1.1 | "Supplier" means any supplier of Supplier Parts. |
12.3.1.2 | "Supplier Part" means any component, equipment, accessory or part installed in an Aircraft at the time of Delivery thereof and for which there exists a Supplier Product Support Agreement. For the sake of clarity, Propulsion Systems and Buyer Furnished Equipment and other equipment selected by the Buyer to be supplied by suppliers with whom the Seller has no existing enforceable warranty agreements are not Supplier Parts. |
12.3.1.3 | "Supplier Product Support Agreements" means agreements between the Seller and Suppliers, as described in Clause 17.1.2, containing enforceable and transferable warranties and, in the case of landing gear suppliers, service life policies for selected structural landing gear elements. |
12.3.2 | Supplier's Default |
12.3.2.1 | In the event of any Supplier, under any standard warranty obtained by the Seller pursuant to Clause 12.3.1, defaulting in the performance of any material obligation with respect thereto and subject to the Buyer first using its reasonable efforts to enforce its rights under such standard warranty and (ii) the Buyer submitting in reasonable time to the Seller reasonable evidence that such default has occurred, [***]. |
12.3.2.2 | In the event of any Supplier, under any Supplier Service Life Policy obtained by the Seller pursuant to Clause 12.3.1, defaulting in the performance of any material obligation with respect thereto and subject to (i) the Buyer first using its reasonable efforts to enforce its rights under such Supplier Service Life Policy and (ii) the Buyer submitting in reasonable time to the Seller reasonable evidence that such default has occurred, [***]. |
12.3.2.3 | At the Seller's request, the Buyer shall assign to the Seller, and the Seller shall be subrogated to, all of the Buyer's rights against the relevant Supplier with respect to and arising by reason of such default and shall provide reasonable assistance to enable the Seller to enforce the rights so assigned. |
12.4 | Interface Commitment |
12.4.1 | Interface Problem |
12.4.2 | Seller's Responsibility |
12.4.3 | Supplier's Responsibility |
12.4.4 | Joint Responsibility |
12.4.5 | General |
12.4.5.1 | All requests under this Clause 12.4 shall be directed to both the Seller and the affected Supplier. |
12.4.5.2 | Except as specifically set forth in this Clause 12.4, this Clause shall not be deemed to impose on the Seller any obligations not expressly set forth elsewhere in this Agreement. |
12.4.5.3 | All reports, recommendations, data and other documents furnished by the Seller to the Buyer pursuant to this Clause 12.4 shall be deemed to be delivered under this Agreement and shall be subject to the terms, covenants and conditions set forth in this Clause 12. |
12.5 | Exclusivity of Warranties |
(1) | ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR ANY GENERAL OR PARTICULAR PURPOSE; |
(2) | ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; |
(3) | ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT; |
(4) | ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY THEORY OF LIABILITY, HOWEVER ALLEGED, INCLUDING, BUT NOT LIMITED TO, ACTIONS AND/OR CLAIMS FOR NEGLIGENCE, GROSS NEGLIGENCE, INTENTIONAL ACTS, WILLFUL DISREGARD, IMPLIED WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY OR FAILURE TO WARN; |
(5) | ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL STATUTE; |
(6) | ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR LOCAL STATUTE OR AGENCY; |
(7) | ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED FOR: |
(a) | LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THIS AGREEMENT; |
(b) | LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THIS AGREEMENT; |
(c) | LOSS OF PROFITS AND/OR REVENUES; |
(d) | ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE. |
12.6 | Duplicate Remedies |
12.7 | Negotiated Agreement |
(i) | the Specification has been agreed upon after careful consideration by the Buyer using its judgment as a professional operator of aircraft used in public transportation and as such is a professional within the same industry as the Seller; |
(ii) | this Agreement, and in particular this Clause 12, has been the subject of discussion and negotiation and is fully understood by the Buyer; and |
(iii) | the price of the Aircraft and the other mutual agreements of the Buyer set forth in this Agreement were arrived at in consideration of, inter alia, the provisions of this Clause 12, specifically including the waiver, release and renunciation by the Buyer set forth in Clause 12.5. |
12.8 | Disclosure to Third Party Entity |
12.9 | Transferability |
13 | PATENT AND COPYRIGHT INDEMNITY |
13.1 | Indemnity |
13.1.1 | Subject to the provisions of Clause 13.2.3, the Seller shall indemnify, defend and hold harmless the Buyer from and against any damages, costs and/or expenses including legal costs (excluding damages, costs, expenses, loss of profits and other liabilities in respect of or resulting from loss of use of the Aircraft) resulting from any infringement or claim of infringement by the Airframe (or any part or software installed therein at Delivery) of: |
13.1.2 | Clause 13.1.1 shall not apply to |
13.1.3 | In the event that the Buyer, due to circumstances contemplated in Clause 13.1.1, is prevented from using the Aircraft (whether by a valid judgment of a court of competent jurisdiction or by a settlement arrived at between claimant, Seller and Buyer), the Seller shall at its discretion and expense either: |
13.2 | Administration of Patent and Copyright Indemnity Claims |
13.2.1 | If the Buyer receives a written claim or a suit is threatened or commenced against the Buyer for infringement of a patent or copyright referred to in Clause 13.1, the Buyer shall: |
(i) | forthwith notify the Seller giving particulars thereof; |
(ii) | furnish to the Seller all data, papers and records within the Buyer's control or possession relating to such patent or claim; |
(iii) | refrain from admitting any liability or making any payment or assuming any expenses, damages, costs or royalties or otherwise acting in a manner prejudicial to the defense or denial of such suit or claim provided always that nothing in this sub-Clause (iii) shall prevent the Buyer from paying such sums as may be required in order to obtain the release of the Aircraft, provided such payment is accompanied by a denial of liability and is made without prejudice; |
(iv) | reasonably co-operate with, and render reasonable assistance to, the Seller [***], as may be pertinent to the defense or denial of the suit or claim; |
(v) | reasonably act in such a way as to mitigate damages, costs and expenses and/or reduce the amount of royalties which may be payable. |
13.2.2 | The Seller shall be entitled either in its own name or on behalf of the Buyer to conduct negotiations with the party or parties alleging infringement and may assume and conduct the defense or settlement of any suit or claim in the manner which, in the Seller's opinion, it deems proper; provided that Seller shall upon Buyer's request keep Buyer reasonably informed on such matter and to the extent that there is a settlement obligation imposed on the Buyer which is not covered by the indemnification obligations of the Seller, then such obligation shall require the prior written approval of Buyer, not to be unreasonably witheld. |
13.2.3 | The Seller's liability hereunder shall be conditional upon the strict and timely compliance by the Buyer with the terms of this Clause and is in lieu of any other liability to the Buyer express or implied which the Seller might incur at law as a result of any infringement or claim of infringement of any patent or copyright. |
14.1 | The OEM Technical Data shall be supplied in the English language using the aeronautical terminology in common use. Range, type, format and delivery schedule of the OEM Technical Data to be provided under this Agreement are outlined in Exhibit G hereto. |
14.2 | Aircraft Identification for OEM Technical Data |
14.2.1 | The following OEM Technical Data can be customized to the Aircraft: |
14.2.2 | The sequence [***]. |
14.2.3 | The Buyer shall indicate to the Seller the Fleet Serial Number allocated to each Aircraft corresponding to the delivery schedule set forth in Clause 9.1 [***]. Neither the designation of such Fleet Serial Numbers nor the subsequent allocation of the Fleet Serial Numbers to Manufacturer Serial Numbers for the purpose of producing certain customized OEM Technical Data shall constitute any property, insurable or other interest of the Buyer in any Aircraft prior to the Delivery of such Aircraft as provided for in this Agreement. To the extent that the Buyer provides Buyer Data for inclusion in the OEM Technical Data, such Buyer Data shall not change ownership by virtue of such inclusion and Clause 22.8 shall apply. |
14.3 | Integration of Equipment Data |
14.3.1 | Supplier Equipment |
14.3.2 | Buyer Furnished Equipment |
14.3.2.1 | The Seller shall introduce BFE data for Buyer Furnished Equipment that is installed on the Aircraft by the Seller ("BFE Data") into the customized OEM Technical Data, [***] to the Buyer for the initial issue of the OEM Technical Data provided at or before Delivery of the first Aircraft, provided such BFE Data is provided in accordance with the conditions set forth in Clauses 14.3.2.2 through 14.3.2.5 no such ref. |
14.3.2.2 | The Buyer shall supply, or shall cause the BFE Supplier(s) to supply on Buyer's behalf, BFE Data to the Seller [***]. |
14.3.2.3 | The BFE Data shall be supplied in English and shall be established in compliance with the then applicable revision of [***], Information Standards for Aviation Maintenance. |
14.3.2.4 | The BFE Data shall be delivered in digital format and/or in Portable Document Format (PDF), as agreed between the Buyer and the Seller. |
14.3.2.5 | All costs related to the delivery to the Seller of the applicable BFE Data shall be [***] |
14.4 | Supply |
14.4.1 | OEM Technical Data shall be supplied on-line and/or off-line, as set forth in Exhibit G hereto. |
14.4.2 | [***] |
14.4.3 | Delivery |
14.4.3.1 | For OEM Technical Data provided off-line, such OEM Technical Data and corresponding revisions shall be sent to up to two (2) addresses as indicated by the Buyer. |
14.4.3.2 | OEM Technical Data provided off-line shall be delivered by the Seller at the Buyer's named place of destination under DAP conditions. The term Delivered At Place (DAP) is defined in the Incoterms 2010 publication issued by the International Chamber of Commerce. |
14.4.3.3 | The OEM Technical Data shall be delivered according to a mutually agreed schedule to correspond with the Deliveries of Aircraft. The Buyer shall provide no less than [***] when requesting a change to such delivery schedule. |
14.4.4 | It shall be the responsibility of the Buyer to coordinate and satisfy local Aviation Authorities' requirements with respect to OEM Technical Data. |
14.5 | Revision Service |
14.6 | Service Bulletins (SB) Incorporation |
14.7 | OEM Technical Data Familiarization |
14.8 | Customer Originated Changes (COC) |
14.9 | AirN@v Family products |
14.9.1 | The OEM Technical Data listed below are provided on DVD and include integrated software (hereinafter together referred to as "AirN@v Family"). |
14.9.2 | The AirN@v Family covers several OEM Technical Data domains, reflected by the following AirN@v Family products: |
14.9.3 | AirN@v Family integrated software is subject to Part 1 of Exhibit I to the Agreement (the "End-User License Agreement for Airbus Software"). |
14.9.4 | The revision service and the license to use AirN@v Family products shall be granted [***]. At the end of such Revision Service Period, the yearly revision service for AirN@v Family products [***] shall be provided to the Buyer [***]. |
14.10 | On-Line Technical Data |
14.10.1 | The OEM Technical Data provided on-line shall be made available to the Buyer through the Airbus customer portal AirbusWorld ("AirbusWorld"). |
14.10.2 | The list of the OEM Technical Data provided on-line may be extended from time to time. |
14.10.3 | Access to the AirbusWorld portal shall be [***] of the Buyer's users (including two (2) Buyer's Administrators for the OEM Technical Data related to the Aircraft that are operated by the Buyer. |
14.10.4 | OEM Technical Data accessed through AirbusWorld portal are at all times subject to the conditions of this Clause 14. |
14.11 | Waiver, Release and Renunciation |
14.12 | Proprietary Rights |
14.12.1 | All proprietary rights relating to OEM Technical Data, including but not limited to patent, design and copyrights, shall remain with the Seller and/or its Affiliates, as the case may be. |
14.12.2 | The supply of the OEM Technical Data by Seller shall not be construed as any right for the Buyer to design or manufacture any aircraft or part thereof or any spare part. |
14.13 | Performance Engineer's Program |
14.13.1 | In addition to the OEM Technical Data, the Seller shall provide to the Buyer Software Services, which shall consist of the Performance Engineer's Programs ("PEP") for the Aircraft type covered under this Agreement. Such PEP is composed of software components and databases, and its use is subject to the End-User License Agreement for Airbus Software (as set forth in Exhibit I to the Agreement). |
14.13.2 | Use of the PEP shall be limited to [***] to be used on the Buyer's computers for the purpose of computing performance engineering data. The PEP is intended for use on ground only and shall not be placed or installed on board the Aircraft. |
14.13.3 | The license to use the PEP and the revision service shall be provided [***]. At the end of such Revision Service Period, the PEP shall be provided to the Buyer [***]. |
14.14 | Future Developments |
14.15 | Confidentiality |
14.15.1 | This Clause 14, the OEM Technical Data, the Software Services and their content are designated as confidential. All such OEM Technical Data and Software Services are provided to the Buyer for the sole use of the Buyer who undertakes not to disclose the contents thereof to any third party without the prior written consent of the Seller, except as permitted herein or therein pursuant to any government or legal requirement imposed upon the Buyer. The OEM Technical Data shall be deemed "Confidential Information" under Clause 22.8 of the Agreement. |
14.15.2 | [***] |
14.15.3 | [***] |
14.15.4 | [***] |
14.16 | Transferability |
14.17 | [***] |
15 | SELLER REPRESENTATIVE SERVICES |
15.1 | Seller Representatives |
15.2 | Location |
15.3 | Availability |
15.3.1 | The Parties acknowledge and agree that during the period defined in Clause 15.1, each Seller Representative may provide support to airlines other than the Buyer. |
15.3.2 | If, at the end of the Seller Representative's assignment, as set out in Clause 15.1, the Buyer needs technical assistance in an AOG situation, the Buyer shall have [***] access to: |
1) | AIRTAC (Airbus Technical AOG Centre); and |
2) | the network of Seller Representatives of the Seller closest to the Buyer's main base, the contacts of which shall be provided to the Buyer. |
15.4 | Buyer's Support at the Buyer's facilities |
15.4.1 | From the date of arrival of the first Seller Representative at the Buyer's facilities and for as long as [***], the Buyer shall provide [***] suitable lockable office for the use of the Seller Representative(s), conveniently located with respect to the Buyer's maintenance facilities, with complete |
15.4.2 | If the Buyer requests any Seller Representative to travel on business to a city other than his/her usual place of assignment, [***]. |
15.4.3 | The Buyer shall assist the Seller's obtaining [***]. |
15.5 | Withdrawal of the Seller Representative |
16 | TRAINING SUPPORT AND SERVICES |
16.1 | General |
16.1.1 | The Seller shall provide to the Buyer[***] the training allowances set out in Appendix A to this Agreement. |
16.1.2 | The Parties shall mutually agree on the scheduling of training courses during a training conference (the "Training Conference") which shall be held, to the extent possible [***]. |
16.2 | Training Location |
16.2.1 | The Seller shall: |
1) | provide training at one of its training centres [***] (each a "Seller Training Centre"), or |
2) | if the unavailability of facilities or scheduling difficulties make training by the Seller at any Seller Training Centre impractical, ensure that the Buyer is provided with such training at another location selected by the Seller (each a "Seller Chosen Training Location"), |
16.2.2 | Upon the Buyer's request, the Seller may provide training at locations other than a Training Centre, including one of the Buyer's bases (each a "Buyer Chosen Training Location"), under terms and conditions to be agreed upon but subject to the provisions of Clause 16.5. |
16.2.3 | If the Buyer requests an Airbus training course to be conducted at a Buyer Chosen Training Location, the Buyer shall ensure that the training facilities at such location are suitably equipped with the adapted classroom space and equipment for such training. The Buyer shall to this effect provide all |
16.3.1 | With respect to training courses performed under this Agreement: |
1) | for the duration of the training course at a Training Centre, the Seller shall make available to the trainees all necessary training media and training equipment; for the avoidance of doubt, such training equipment shall not include aircraft; |
2) | the equipment and curricula used for the training of flight, cabin and maintenance personnel shall not be fully customized but shall be configured as necessary to obtain the relevant Aviation Authority's approval; |
3) | trainee documentation shall be made available to the trainees for the duration of the training course only, for the sole purpose of training, shall remain the property of the Seller and shall be returned to the Seller at the end of any training course; |
4) | at the end of each training course provided at a Training Centre each trainee shall receive either an attestation, indicating that the trainee has attended such course, or a certificate of course completion indicating the outcome of the relevant evaluation at the end of such training, as applicable. No such certificate or attestation shall represent authority or qualification by any Aviation Authority but may be presented to an Aviation Authority by the recipient in order to obtain relevant formal qualification; |
5) | when a training course is provided at a Seller Chosen Training Location, the Seller shall communicate to the Buyer the terms and conditions applicable to such training at the time it is offered. |
16.3.2 | Exchange of Training Courses |
16.3.3 | Timing of Requests, Rescheduling and Cancellation of Training Courses |
16.3.4 | All training allowances indicated in Appendix A hereto are the total allowances granted for the entire fleet of Aircraft, unless otherwise specified herein. Should this Agreement be terminated with respect to any or all Aircraft |
16.3.5 | If the Buyer does not use any or all of the training allowances provided pursuant to this Clause 16 within the timeframe set out in Appendix A [***]. |
16.4 | Prerequisites and Conditions |
16.4.1 | The Buyer shall be responsible for ensuring that the trainees registered on a training course have the prerequisite knowledge and experience specified for such course in the CSC. |
16.4.2 | At the time of booking of a training course, and in no event later than [***] prior to each course, the Buyer shall provide the Seller with a list of the trainees for each course, together with evidence of the qualification, proficiency and professional experience of each trainee and such other information as the Seller may request. |
- | prior to the start of a course, that a trainee does not meet the prerequisites set out in the CSC; or |
- | at any time during a training course, that a trainee lacks the required level, |
16.4.3 | The Seller does in no case warrant and shall not be held liable for any trainee's performance as a result of any training provided hereunder. For the purposes of this Clause 16.4.3, the "Seller" shall be understood to include the Seller, any of its suppliers and subcontractors, its Affiliates and any of their respective insurers. |
16.5 | Logistics |
16.5.1 | Travel and living expenses for the Buyer's trainees shall be borne [***]. |
16.5.2 | For any training provided by the Seller at a Buyer Chosen Training Location and for each Instructor providing support under this Clause 16 [***]. |
16.5.3 | The Seller shall not be liable to the Buyer for any delay or cancellation in the performance of any training outside of the Seller's Training Centers arising as a result of the transportation of the Seller's personnel. |
16.6 | Conditions Specific to Certain Training |
16.6.1 | Flight Support |
1) | any such flight support shall be subject to the Seller's prior consent; |
2) | such Instructors shall only perform the above flight support to the extent they bear the relevant qualifications to do so; and |
3) | such flight(s) shall be deducted from the remaining allowance set out in Appendix A hereto. |
16.6.2 | Provision of Aircraft |
16.6.3 | Validation of Licenses |
16.7 | Transferability |
17.1 | Equipment Supplier Product Support Agreements |
17.1.1 | The Seller has obtained enforceable and transferable product support agreements from Suppliers of Supplier Parts. The Seller will [***] to the Buyer transfer to the Buyer the Supplier Product Support Agreements, the benefit of which is hereby accepted by the Buyer. Said agreements become enforceable as soon as and for as long as an operator is identified as an Airbus aircraft operator. |
17.1.2 | These agreements are based on the "World Airlines Suppliers Guide", are made available online to the Buyer through AirbusWorld, and include Supplier 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 Supplier Parts shall be prepared in accordance with the applicable provisions of ATA Specification including revision service and be published in the English language. The Seller shall recommend that a software user guide, where applicable, be supplied in the form of an appendix to the Component Maintenance Manual. Such data shall be provided in compliance with the applicable ATA Specification; |
17.1.2.2 | Warranties and guarantees, including standard warranties. In addition, landing gear Suppliers shall provide service life policies for selected structural landing gear elements; |
17.1.2.3 | Training to ensure efficient operation, maintenance and overhaul of the Supplier Parts for the Buyer's instructors, shop and line service personnel; |
17.1.2.4 | Spares data in compliance with [***], initial provisioning recommendations, spare parts and logistic service including routine and expedite deliveries; |
17.1.2.5 | Technical service to assist the Buyer with maintenance, overhaul, repair, operation and inspection of Supplier Parts as well as required tooling and spares provisioning. |
17.2 | Supplier Compliance |
17.3 | Nothing in this Clause 17 shall be construed to prevent or limit the Buyer from entering into direct negotiations with a Supplier with respect to different or additional terms and conditions applicable to Suppliers Parts selected by the Buyer to be installed on the Aircraft. |
17.4 | Familiarization Training |
18.1 | Administration |
18.1.1.1 | In accordance with the Specification, the Seller shall install those items of equipment that are identified in the Specification as being furnished by the Buyer ("Buyer Furnished Equipment" or "BFE"), provided that the BFE and the supplier of such BFE (the "BFE Supplier") are referred to in the Airbus BFE Product Catalog valid at the time the BFE Supplier is selected. |
18.1.1.2 | Notwithstanding the foregoing and without prejudice to Clause 2.4, if the Buyer wishes to install BFE manufactured by a supplier who is not referred to in the Airbus BFE Product Catalog, the Buyer shall so inform the Seller and the Seller shall conduct a feasibility study of the Buyer's request, in order to consider approving such supplier, provided that such request is compatible with the Seller's industrial planning and the associated Scheduled Delivery Month for the Buyer's Aircraft. In addition, it is a prerequisite to such approval that the considered supplier be qualified by the Seller's Aviation Authorities to produce equipment for installation on civil aircraft. [***] The Buyer shall cause any BFE supplier approved under this Clause 18.1.1.2 (each an "Approved BFE Supplier") to comply with the conditions set forth in this Clause 18 and specifically Clause 18.2. |
18.1.2.1 | The Seller shall advise the Buyer of the dates by which, in the planned release of engineering for the Aircraft, the Seller requires a written detailed engineering definition encompassing a Declaration of Design and Performance (the "BFE Engineering Definition"). The Seller shall provide to the Buyer and/or the BFE Supplier(s), within an appropriate timeframe, the necessary interface documentation to enable the development of the BFE Engineering Definition. |
18.1.2.2 | The Seller shall also provide to the Buyer, sufficiently in advance to meet customary BFE leadtimes, a schedule of dates and the shipping addresses for delivery of the BFE and, where requested by the Seller, additional spare BFE to permit installation in the Aircraft and Delivery of the Aircraft in accordance with the Aircraft delivery schedule. The Buyer shall provide, or cause the BFE Suppliers to provide, the BFE by such dates in a serviceable condition, in order to allow performance of any assembly, installation, test or acceptance process in accordance with the Seller's industrial schedule. In order to facilitate the follow-up of the timely receipt of BFE, the Buyer shall, upon the Seller's request, provide to the Seller dates and references of all BFE purchase orders placed by the Buyer. |
18.1.3 | Without prejudice to the Buyer's obligations hereunder, in order to facilitate the development of the BFE Engineering Definition, the Seller shall organize meetings between the Buyer and BFE Suppliers. The Buyer hereby agrees to participate in such meetings and to provide adequate technical and engineering expertise to reach decisions within the defined timeframe. |
▪ | to monitor the BFE Suppliers and [***] including but not limited to those set forth in the Customization Milestone Chart; |
▪ | that, should a timeframe, quality or other type of risk be identified at a given BFE Supplier, [***]; |
▪ | for major BFE, including, but not being limited to, seats, galleys and IFE ("Major BFE") to participate on a mandatory basis in the specific meetings that take place between BFE Supplier selection and BFE delivery, namely: |
o | Preliminary Design Review ("PDR"), |
o | Critical Design Review ("CDR"); |
▪ | to attend the First Article Inspection ("FAI") for the first shipset of all Major BFE. Should the Buyer not attend such FAI, the Buyer shall delegate the FAI to the BFE Supplier and confirmation thereof shall be supplied to the Seller in writing; |
▪ | to attend the Source Inspection ("SI") that takes place at the BFE Supplier's premises prior to shipping, for each shipset of all Major BFE. Should the Buyer not attend such SI, the Buyer shall delegate the SI to the BFE Supplier and confirmation thereof shall be brought to the Seller in writing. [***] |
18.1.4 | The BFE shall be imported into the location of final assembly of the Aircraft at the following addresses, as applicable: |
18.1.4.2 | BFE delivered to [***] and imported under a suspensive customs system ("Régime de l'entrepôt douanier ou régime de perfectionnement actif " or "Zollverschluss") without application of any [***] or customs duty. [***] |
18.2 | Applicable Requirements |
18.3.1 | Any delay or failure by the Buyer or the BFE Suppliers in: |
▪ | complying with the foregoing warranty or in providing the BFE Engineering Definition or field service mentioned in Clause 18.1.2.2, or |
▪ | furnishing the BFE in a serviceable condition at the requested delivery date, or |
▪ | obtaining any required approval for such BFE equipment under the above mentioned Aviation Authorities' regulations, |
18.3.2 | In addition, in the event of any delay or failure mentioned in 18.3.1 above, the Seller may: |
18.4 | Title and Risk of Loss |
19.1 | Seller's Indemnities |
19.2 | Buyer's Indemnities |
19.3 | Notice and Defense of Claims |
19.4 | Buyer Insurance |
(a) | cause the Seller Indemnitees to be named as additional insured under the Buyer's Comprehensive Aviation Legal Liability insurance policies, including War Risks and Allied Perils (such insurance to include the AVN 52E Extended Coverage Endorsement Aviation Liabilities or any further Endorsement replacing AVN 52E as may be available, including any excess coverage in respect of War and Allied Perils Third Parties Legal Liabilities Insurance that Buyer then maintains), and |
(b) | with respect to the Buyer's Hull All Risks and Hull War Risks insurances and Allied Perils, request the insurers of the Buyer's hull insurance policies to waive all rights of subrogation against the Seller Indemnitees. |
(i) | under the Comprehensive Aviation Legal Liability Insurances, the Buyer's policies are primary and non-contributory to any insurance maintained by the Seller, |
(ii) | such insurance can only be cancelled or materially altered by the giving of not less than [***] prior written notice thereof to the Seller, and |
(iii) | under any such cover, all rights of subrogation against the Seller Indemnitees have been waived to the extent of the Buyer's undertaking under Clause 19.2 and this Clause 19.4. |
19.5 | Seller Insurance |
20 - | TERMINATION |
20.1 | Termination Events |
20.2 | Remedies in Event of Termination |
20.2.1 | If a Termination Event occurs, the Buyer shall be in material breach of this Agreement, and the Seller may elect any of the following remedies under the applicable law: |
20.2.2 | [***] |
20.2.3 | [***] |
20.2.4. | The parties to this Agreement are commercially sophisticated parties acting within the same industry, and represented by competent counsel and the parties expressly agree and declare as follows: |
20.3 | Definitions |
i. | "Affected Aircraft" - any or all Aircraft with respect to which [***] |
20.4 | Notice of Termination Event |
20.5 | Information Covenants |
20.6 | Nothing contained in this Clause 20 shall be deemed to waive or limit the Seller's rights or ability to request adequate assurance under Article 2, Section 609 of the Uniform Commercial Code (the "UCC"). It is further understood that any commitment of the Seller or the Propulsion Systems manufacturer to provide financing to the Buyer shall not constitute adequate assurance under Article 2, Section 609 of the UCC. |
21.1 | Assignments |
21.2 | Assignments on Sale, Merger or Consolidation - Buyer |
21.3 | Designation of Affiliates for Performance [***] |
21.4 | Transfer of Rights and Obligations upon Reorganization [***] |
21.6.1 | [***] |
21.6.2 | [***] |
22.1 | [***] |
22.2 | Notices |
22.3 | Waiver |
22.4 | Certain Representations of the Parties |
22.4.1 | Buyer's Representations |
(i) | the Buyer is a corporation organized and existing in good standing under the laws of the State of Delaware and has the corporate power and authority to enter into and perform its obligations under this Agreement; |
(ii) | neither the execution and delivery by the Buyer of this Agreement, nor the consummation of any of the transactions by the Buyer contemplated thereby, nor the performance by the Buyer of the obligations thereunder, constitutes a breach of any agreement to which the Buyer is a party or by which its assets are bound; |
(iii) | this Agreement has been duly authorized, executed and delivered by the Buyer and constitutes the legal, valid and binding obligation of the Buyer enforceable against the Buyer in accordance with its terms. |
22.4.2 | Seller's Representations |
(i) | the Seller is organized and existing in good standing under the laws of the Republic of France and has the corporate power and authority to enter into and perform its obligations under the Agreement; |
(ii) | neither the execution and delivery by the Seller of this Agreement, nor the consummation of any of the transactions by the Seller contemplated thereby, nor the performance by the Seller of the |
(iii) | this Agreement has been duly authorized, executed and delivered by the Seller and constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms. |
22.5 | Interpretation and Law |
22.5.1 | [INTENTIONALLY OMITTED] |
22.5.2 | The assumption in Clause 22.5.1 made for the purpose of effecting the service of process shall not affect any assertion of diversity by either party hereto initiating a proceeding in the New York Federal Courts or seeking transfer to the New York Federal Courts on the basis of diversity. |
22.5.3 | Service of process in any suit, action or proceeding in respect of any matter as to which the Seller or the Buyer has submitted to jurisdiction under Clause 22.5 (i) may be made on the Seller by delivery of the same personally to CT Corporation, New York City offices as agent for the Seller, it being agreed |
22.5.4 | Headings |
22.6 | Waiver of Jury Trial |
22.7 | No Representations Outside of this Agreement |
22.8 | Confidentiality |
22.9 | Severability |
22.10 | Entire Agreement; amendments |
22.11 | Inconsistencies |
22.12 | Language |
22.13 | Counterparts |
PRIVILEGED AND CONFIDENTIAL | Page 1/1 |
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PART 1 | SELLER PRICE REVISION FORMULA |
1 | BASE PRICE |
2 | BASE PERIOD |
3 | INDEXES |
4 | REVISION FORMULA |
5 | GENERAL PROVISIONS |
5.1 | Roundings |
5.2 | Substitution of Indexes for Seller Price Revision Formula |
(i) | the United States Department of Labor substantially revises the methodology of calculation of the Labor Index or the Material Index as used in the Seller Price Revision Formula, or |
(ii) | the United States Department of Labor discontinues, either temporarily or permanently, such Labor Index or such Material Index, or |
(iii) | the data samples used to calculate such Labor Index or such Material Index are substantially changed; |
5.3 | Final Index Values |
5.4 | Limitation |
1. | REFERENCE PRICE OF THE PROPULSION SYSTEMS |
2. | REFERENCE PERIOD |
3. | INDEXES |
4. | REVISION FORMULA |
5. | GENERAL PROVISIONS |
5.1 | Roundings |
(i) | The Material index average (ICn) shall be rounded to the nearest second decimal place and the labor index average (ECIn) shall be rounded to the nearest first decimal place. |
(ii) | CPIn shall be rounded to the nearest second decimal place. |
(iii) | The final factor [***] shall be rounded to the nearest third decimal place. |
5.2 | Final Index Values |
5.3 | Interruption of Index Publication |
5.4 | Annulment of the Formula |
5.5 | Limitation |
PART 3 | PROPULSION SYSTEMS PRICE REVISION FORMULA |
1. | REFERENCE PRICE OF THE PROPULSION SYSTEMS |
2. | BASE PERIOD |
3. | INDEXES |
4. | REVISION FORMULA |
5. | GENERAL PROVISIONS |
5.1 | Roundings |
5.3 | Final Index Values |
5.4 | Limitation |
1 | The Items covered by the Service Life Policy pursuant to Clause 12.2 are those Seller Items of primary and auxiliary structure described hereunder. |
2 | WINGS - CENTER AND OUTER WING BOX (LEFT AND RIGHT) |
2.1 | Wing Structure |
2.1.1 | Spars |
2.1.2 | Ribs and stringers inside the wing box |
2.1.3 | Upper and lower wing skin panels of the wing box |
2.2 | Fittings |
2.2.1 | Support structure and attachment fittings for the flap structure |
2.2.2 | Support structure and attachment fitting for the engine pylons |
2.2.3 | Support structure and attachment fitting for the main landing gear |
2.2.4 | Support structure and attachment fitting for the center wing box |
2.3 | Auxiliary Support Structure |
2.3.1 | For the slats: |
2.3.1.1 | Ribs supporting the track rollers on wing box structure |
2.3.1.2 | Ribs supporting the actuators on wing box structure |
2.3.2 | For the ailerons: |
2.3.2.1 | Hinge brackets and ribs on wing box rear spar or shroud box |
2.3.2.2 | Actuator fittings on wing box rear spar or shroud box |
2.3.3 | For airbrakes, spoilers, lift dumpers: |
2.3.3.1 | Hinge brackets and ribs on wing box rear spar or shroud box |
2.3.3.2 | Actuator fittings on wing box rear spar or shroud box |
2.4 | Pylon |
2.4.1 | For the Pylon Main Structural Box |
2.4.1.1 | Spars |
2.4.1.2 | Ribs |
2.4.1.3 | Skin, doublers and stiffeners |
2.4.1.4 | Support structure and attachment fitting for engine supports |
3.1 | Fuselage structure |
3.1.1 | Fore and aft bulkheads |
3.1.2 | Pressurized floors and bulkheads surrounding the main and nose gear wheel well and center wing box |
3.1.3 | Skins with doublers, stringers and frames from the forward pressure bulkheads to the frame supporting the rear attachment of horizontal stabilizer |
3.1.4 | Window and windscreen attachment structure but excluding transparencies |
3.1.5 | Passenger and cargo doors internal structure |
3.1.6 | Sills, excluding scuff plates, and upper beams surrounding passenger and cargo door apertures |
3.1.7 | Cockpit floor structure and passenger cabin floor beams excluding floor panels and seat rails |
3.1.8 | Keel beam structure |
3.2 | Fittings |
3.2.1 | Landing gear support structure and attachment fitting |
3.2.2 | Support structure and attachment fittings for the vertical and horizontal stabilizers |
3.2.3 | Support structure and attachment fitting for the APU |
4 | STABILIZERS |
4.1 | Horizontal Stabilizer Main Structural Box |
4.1.1 | Spars |
4.1.2 | Ribs |
4.1.3 | Upper and lower skins and stringers |
4.1.4 | Support structure and attachment fitting 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 |
4.2.2 | Ribs |
4.2.3 | Skins and stringers |
4.2.4 | Support structure and attachment fitting to fuselage |
4.2.5 | Rudder support structure |
4.2.5.1 | Hinge brackets |
4.2.5.2 | Servocontrol attachment brackets |
5 | EXCLUSIONS |
1- | Airbus Flight Operations Data Package |
• | Flight Manual (FM), |
• | Flight Crew Operating Manual (FCOM), |
• | Flight Crew Training Manual (FCTM), |
• | Quick Reference Handbook (QRH), |
• | Cabin Crew Operating Manual (CCOM), |
• | Master Minimum Equipment List (MMEL), |
• | Weight and Balance Manual (WBM). |
1.1- | Format of Data |
2- | Airbus Maintenance Technical Data Package |
• | Aircraft Maintenance Manual (AMM), |
• | Aircraft Wiring Manual (AWM), |
• | Aircraft Schematics Manual (ASM), |
• | Aircraft Wiring Lists (AWL), |
• | Illustrated Part Catalog (IPC), |
• | Trouble Shooting Manual (TSM). |
2.1- | Format of Data |
3- | Non-customized Technical Data |
4- | Additional Technical Data |
4.1 | In addition to the Flight Operations Data Package and the Maintenance Technical Data Package, the Seller shall provide, at Delivery of each Aircraft, on-line access to the Aircraft mechanical drawings that cover installation of structure and systems fitted on the Buyer's Aircraft at Delivery. |
4.2 | [***] of each Aircraft, the Seller shall provide: |
• | the weighing report, for integration into the WBM by the Buyer, | ||||
• | the Electrical Load Analysis (ELA), in a format allowing further updating by the Buyer. |
1. | GENERAL |
1.1 | Scope |
1.1.1 | This Exhibit H sets forth the terms and conditions for the support and services offered by the Seller to the Buyer with respect to Material (as defined below). |
1.1.2 | References made to Articles shall be deemed to refer to articles of this Attachment 1 to Appendix 3 unless otherwise specified. |
1.1.3 | For purposes of this Attachment 1 to Appendix 3: |
1.1.4 | the term "Supplier" shall mean any supplier providing any of the Material listed in Article 1.2.1 and the term "Supplier Part" shall mean an individual item of Material. |
1.1.5 | The term "SPEC 2000" means the "E-Business Specification for Materials Management" document published by the Air Transport Association of America. |
1.2 | Material Categories |
1.2.1 | Each of the following constitutes "Material" for purposes of this Attachment 1 to Appendix 3: |
(i) | Seller Parts; | ||||
(ii) | Supplier Parts classified as Repairable Line Maintenance Parts (as defined in SPEC 2000); |
(iii) | Supplier Parts classified as Expendable Line Maintenance Parts (as defined in SPEC 2000); |
1.2.2 | Propulsion Systems, engine exchange kits, their accessories and parts for any of the foregoing, are not covered under this Attachment 1 to Appendix 3. |
1.3 | Term |
1.4 | Airbus Material Store |
1.4.1 | AACS Spares Center |
1.4.2 | Material Support Center, Germany |
1.4.3 | Other Points of Shipment |
1.4.3.1 | In addition to the AACS Spares Center and the Airbus Material Center, the Seller and its Affiliates operate a global network of regional satellite stores (the "Regional Satellite Stores"). A list of such stores shall be provided to the Buyer upon the Buyer's request. |
1.4.3.2 | The Seller reserves the right to effect deliveries from distribution centers other than the US Spares Center or the Airbus Material Center, which may include the Regional Satellite Stores or any other production or Supplier's facilities. |
1.5 | Customer Order Desk |
(i) | Management of order entries for all priorities, including Aircraft On Ground ("AOG"); |
(ii) | Management of order changes and cancellations; |
(iii) | Administration of Buyer's routing instructions; |
(iv) | Management of Material returns; |
(v) | Clarification of delivery discrepancies; |
(vi) | Issuance of credit and debt notes. |
1.6 | Commitments of the Buyer |
1.6.1 | During the Term, the Buyer agrees to purchase from |
(a) | the Seller, AACS or the Seller's licensee(s) the Seller Parts required for the Buyer's own needs; or |
(b) | other operators or purchase Seller Parts from said operators or from distributors, provided said Seller Parts were originally designed by the Seller and manufactured by the Seller or its licensees. |
1.6.2 | Subject to the express further agreement of the Seller in relation to Article 1.6.2 (ii) below, the Buyer may manufacture, exclusively for its own use parts, equivalent to Seller Parts, provided, however, that it may only do so in one of the following circumstances: |
(i) | after expiration of the Term, the concerned Seller Parts are out of stock; |
(ii) | Seller Parts are needed to perform confirmed AOG repairs upon any Aircraft delivered under the Agreement and are not available from the Seller, its licensees or other approved sources within a lead time shorter than or equal to the time in which the Buyer can manufacture such parts with Airbus technical data assistance; |
(iii) | when a Seller Part is identified as "Local Manufacture" in the Illustrated Parts Catalog. |
1.6.3.1 | The rights granted to the Buyer in Article 1.6.2 shall not in any way be construed as a license, nor shall they in any way obligate the Buyer to pay any license fee or royalty, nor shall they in any way be construed to affect the rights of third parties. |
1.6.3.2 | If the Buyer manufactures any parts pursuant to Article 1.6.2, the Buyer shall be solely responsible for such manufacturing and any use made of the |
manufactured parts, and the agreement of the Seller under Article 1.6.2 shall not be construed as express or implicit approval either of the Buyer in its capacity as manufacturer of such parts or of the manufactured parts. The Buyer shall also be solely responsible to ensure that such manufacturing is performed in accordance with the relevant procedures and Aviation Authority requirements. THE SELLER SHALL NOT BE LIABLE FOR, AND THE BUYER SHALL INDEMNIFY THE SELLER AGAINST, ANY CLAIMS FROM ANY THIRD PARTIES FOR LOSSES DUE TO ANY DEFECT OR NON-CONFORMITY OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH ANY MANUFACTURING OF ANY PART UNDERTAKEN BY THE BUYER UNDER ARTICLE 1.6.2 OR ANY OTHER ACTIONS UNDERTAKEN BY THE BUYER UNDER THIS ATTACHMENT 1 TO APPENDIX 3 WHETHER SUCH CLAIM IS ASSERTED IN CONTRACT OR IN TORT, OR IS PREMISED ON ALLEGED, ACTUAL, IMPUTED, ORDINARY OR INTENTIONAL ACTS OR OMISSIONS OF THE BUYER. | |||||
1.6.3.3 | The Buyer shall allocate its own part number to any part manufactured in accordance with Article 1.6.2. The Buyer shall under no circumstances be allowed to use the Airbus part number of the Seller Part to which such manufactured part is intended to be equivalent. |
1.6.3.4 | The Buyer shall not be entitled to sell or lend any part manufactured under the provisions of Article 1.6.2 to any third party. |
2. | INITIAL PROVISIONING |
2.1 | Period |
2.2 | Pre-Provisioning Meeting |
2.2.1 | The Seller shall organize a free of charge pre-provisioning meeting at AACS Spares Center or at the Airbus Material Center, or at any other agreed location, for the purpose of setting an acceptable schedule and working procedure for the preparation of the initial issue of the Provisioning Data and the Initial Provisioning Conference referred to in Articles 2.3 and 2.4 below (the "Pre-Provisioning Meeting"). During the Pre-Provisioning Meeting, the Seller shall familiarize the Buyer with the provisioning processes, methods and formulae of calculation and documentation. |
2.2.2 | The free of charge Pre-Provisioning Meeting shall take place on an agreed date that is no later than nine (9) months prior to Scheduled Delivery Month of the first Aircraft, allowing a minimum preparation time of eight (8) weeks for the Initial Provisioning Conference. |
2.3 | Initial Provisioning Conference |
2.4 | Provisioning Data |
2.4.1 | Provisioning data generally in accordance with SPEC 2000, Chapter 1, for Material described in Articles 1.2.1 (i) through 1.2.1 (iii) ("Provisioning Data") shall be supplied by the Seller to the Buyer in the English language, in a format and timeframe to be agreed during the Pre-Provisioning Meeting. |
2.4.1.1 | Unless a longer revision cycle has been agreed, the Provisioning Data shall be revised [***] up to the end of the Initial Provisioning Period. |
2.4.1.2 | The Seller shall ensure that Provisioning Data is provided to the Buyer in time to permit the Buyer to perform any necessary evaluation and to place orders in a timely manner. |
2.4.1.3 | Provisioning Data generated by the Seller shall comply with the configuration of the Aircraft as documented [***]. |
(i) | Buyer modifications not known to the Seller, |
(ii) | other modifications not approved by the Seller's Aviation Authorities. |
2.4.2 | Supplier-Supplied Data |
2.4.3 | Supplementary Data |
2.5 | Commercial Offer |
2.6 | Delivery of Initial Provisioning Material |
2.6.1 | During the Initial Provisioning Period, Initial Provisioning Material shall conform to the latest known configuration standard of the Aircraft for which such Material is intended as reflected in the Provisioning Data transmitted by the Seller. |
2.6.2 | The delivery of Initial Provisioning Material shall take place according to the conditions specified in the commercial offer mentioned in Article 2.5. |
2.6.3 | All Initial Provisioning Material shall be packaged in accordance with ATA 300 Specification. |
2.7 | Buy-Back Period and Buy-Back of Initial Provisioning Surplus Material |
(i) | four (4) hours after receipt of an AOG order; |
(ii) | twenty-four (24) hours after receipt of a critical order (imminent AOG or work stoppage); |
(iii) | seven (7) days after receipt of an expedite order (urgent stock replenishment). |
(i) | of any alleged shortages or overshipments; |
(ii) | of any non-conformities of delivered Material. |
(i) | Free Carrier (FCA) Airbus Material Center; |
(ii) | Free Carrier (FCA) Seller's Regional Satellite Stores; |
(iii) | Free Carrier (FCA) Seller's or Supplier's facility for deliveries from any other Seller or Supplier facilities. |
4. | WARRANTIES |
4.1 | Seller Parts |
(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 arising from failure to conform to the applicable specification for such part. |
4.1.1 | Warranty Period |
4.1.1.1 | [***] |
4.1.1.2 | Whenever any Seller Part that contains a defect for which the Seller is liable under Article 4.1 has been corrected, replaced or repaired pursuant to the terms of this Article 4.1, the period of the Seller's warranty with respect to such corrected, repaired or replacement Seller Part, as the case may be, shall be [***]. |
4.1.2 | Buyer's Remedy and Seller's Obligation |
4.2 | Supplier Parts |
4.3 | Waiver, Release and Renunciation |
(1) | ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR ANY GENERAL OR PARTICULAR PURPOSE; |
(2) | ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; |
(3) | ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT; |
(4) | ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY THEORY OF LIABILITY, HOWEVER ALLEGED, INCLUDING, BUT NOT LIMITED TO, ACTIONS AND/OR CLAIMS FOR NEGLIGENCE, GROSS NEGLIGENCE, INTENTIONAL ACTS, SHALLFUL DISREGARD, IMPLIED WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY OR FAILURE TO WARN; |
(5) | ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL STATUTE; |
(6) | ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR LOCAL STATUTE OR AGENCY; |
(7) | ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED FOR: |
(a) | LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THE AGREEMENT; |
(b) | LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THE AGREEMENT; |
(c) | LOSS OF PROFITS AND/OR REVENUES; |
(d) | ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE. |
4.4 | Duplicate Remedies |
5. | COMMERCIAL CONDITIONS |
5.1 | Delivery Terms |
5.2 | Payment Procedures and Conditions |
5.3 | Title |
5.4 | Cessation of Deliveries |
6. | EXCUSABLE DELAY |
7. | TERMINATION OF MATERIAL PROCUREMENT COMMITMENTS |
8. | INCONSISTENCY |
1. | DEFINITIONS AND INTERPRETATION |
1.1.1 | "Manufacturer" or any other person includes, without prejudice to the provisions of this Agreement restricting transfer or assignment, any successor and any assignee; |
1.1.2 | words importing the plural shall include the singular and vice versa; |
1.1.3 | any document shall include that document as amended, novated, assigned or supplemented; |
1.1.4 | a Clause or a Schedule is a reference to a clause of, or a schedule to, this Agreement; |
1.1.5 | any law, or to any specified provision of any law, is a reference to such law or provision as amended, substituted or re-enacted; |
1.1.6 | a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust or partnership (whether or not having separate legal personality) of two or more of the foregoing; and |
1.1.7 | "including" and similar words and terms shall not be construed as limiting and shall mean "including without limitation". |
2. | EFFECTIVENESS |
2.1 | Effective Date |
2.2 | Amendment |
3. | BENEFIT OF WARRANTIES |
3.1 | General |
3.1.1 | Pursuant to the terms of this Agreement, the Manufacturer agrees to make available to the Entitled Party (from time to time) the Warranties. The entitlement of any Entitled Party to make a claim under the Warranties shall be only as specified in this Agreement or as otherwise agreed in accordance with Clause 3.2 (Relevant Parties) (and any agreement otherwise between any or all of the Relevant Parties and/or any other person shall have no effect and shall not bind the Manufacturer). |
3.1.2 | The terms and conditions of the Warranties shall be binding upon the Entitled Party and shall apply to all claims made in respect of the Warranties (INCLUDING THE RELEASE, WAIVER AND RENUNCIATION IN CLAUSE 12.5 OF THE WARRANTIES, EACH AND EVERY DISCLAIMER (INCLUDING THE DISCLAIMERS OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE) AND THE LIMITATIONS ON LIABILITY SET FORTH THEREIN). Only one Entitled Party shall be entitled to benefit from and to make a claim under the Warranties at any one time. |
3.2 | Relevant Parties |
3.2.1 | The Entitled Party on the Delivery Date shall be the Initial Entitled Party. Such person shall remain the Entitled Party unless and until a different Eligible Person is specified as the new Entitled Party in a Replacement Entitled Party Notice delivered in accordance with Clause 4.1.1 (Termination of Entitled Party's Rights). |
3.2.2 | The Controlling Party on the Delivery Date shall be the Initial Controlling Party. Such person shall remain the Controlling Party unless and until a different Eligible Person is specified as the new Controlling Party in a Replacement Controlling Party Notice delivered in accordance with Clause 4.2.1 (Termination of Controlling Party's Rights). |
3.2.3 | The Entitled Party and the Controlling Party may (but are not required to) be the same person. |
3.3 | Record of Relevant Parties |
4. | TERMINATION OF WARRANTY RIGHTS |
4.1 | Termination of Entitled Party's Rights |
4.1.1 | With immediate and automatic effect at the time of the receipt by the Manufacturer of a Replacement Entitled Party Notice (the "Relevant Time"): |
(a) | the Outgoing Entitled Party shall cease to be the Entitled Party; |
(b) | the New Entitled Party shall be the Entitled Party; and |
(c) | save to the extent of any claim or right to claim against the Manufacturer, in each case which prior to the Relevant Time (A) exists and (B) has been notified in writing to the Manufacturer in accordance with this Agreement: |
(i) | all rights of the Outgoing Entitled Party under this Agreement shall terminate; and |
(ii) | the Manufacturer shall have no liability whatsoever to the Outgoing Entitled Party in any respect under this Agreement. |
4.1.2 | Without prejudice to Clause 4.1.1 (Termination of Entitled Party's Rights), a copy of a Replacement Entitled Party Notice shall be sent by the Controlling Party to the Outgoing Entitled Party for information, but the receipt or non-receipt of such copy by the Outgoing Entitled Party shall not affect the rights or obligations of any person under this Agreement. |
4.1.3 | For the purposes of this Clause 4.1 (Termination of Entitled Party's Rights), the "Outgoing Entitled Party" means the person specified as such in the relevant Replacement Entitled Party Notice (being the person who, immediately prior to service thereof, was the Entitled Party) and the "New Entitled Party" means the person specified as such in the relevant Replacement Entitled Party Notice. |
4.2 | Termination of Controlling Party's Rights |
4.2.1 | With immediate and automatic effect upon the receipt by the Manufacturer of a Replacement Controlling Party Notice: |
(a) | the Outgoing Controlling Party shall cease to be the Controlling Party; |
(b) | the New Controlling Party shall be the Controlling Party; |
(c) | all rights of the Outgoing Controlling Party under this Agreement shall terminate; and |
(d) | the Manufacturer shall have no further liability whatsoever to the Outgoing Controlling Party in any respect under this Agreement. |
4.2.2 | Without prejudice to Clause 4.2.1 (Termination of Controlling Party's Rights), a copy of a Replacement Controlling Party Notice shall be sent by the New Controlling Party to the Entitled Party for information, but the receipt or non-receipt of such copy by the Entitled Party shall not affect the rights or obligations of any person under this Agreement. |
4.2.3 | For the purposes of this Clause 4.2 (Termination of Controlling Party's Rights), the "Outgoing Controlling Party" means the person specified as such in the relevant Replacement Controlling Party Notice (being the person who, immediately prior to service thereof, was the Controlling Party) and the "New Controlling Party" means the person specified as such in the relevant Replacement Controlling Party Notice. |
4.3 | Other Warranty Agreements |
4.4 | Lapse of Warranties |
4.4.1 | The entitlement of any Relevant Party to enforce the rights under any Warranty shall automatically lapse on the date on which that Warranty expires in accordance with this Agreement. |
4.4.2 | Following the date on which all Warranties have expired in accordance with this Agreement: |
(a) | no change to the identity of the Controlling Party or the Entitled Party may be made hereunder; and |
(b) | the Manufacturer shall cease to be under any obligation to maintain the record of the Relevant Parties pursuant to Clause 3.3 (Record of Relevant Parties). |
5. | MANUFACTURER LIMIT OF LIABILITY |
5.1 | the Manufacturer shall not incur any Liability under this Agreement by reason of the Transaction Documents; |
5.2 | any performance by the Manufacturer that discharges its obligation in respect of any of the Warranties in favour of any Relevant Party in accordance with this Agreement will satisfy the respective interests of each Relevant Party from time to time, and nothing in this Agreement shall give rise to or impose upon the Manufacturer any several or duplicate liability with respect to such Warranties; |
5.3 | the Manufacturer shall (i) be entitled to rely conclusively on the information contained in any Relevant Notice, without enquiring as to the accuracy and validity of such Relevant Notice or to the entitlement of the party serving such Relevant Notice to serve it, (ii) have no duty so to enquire and (iii) not be liable for acting in accordance with such Relevant Notice; |
5.4 | in the event that a Relevant Party commences or has commenced against it any bankruptcy, insolvency, reorganization, receivership, suspension of payments, dissolution, liquidation, assignment for the benefit of creditors, moratorium, or other similar proceeding under debtor relief laws of the United States or any other applicable jurisdiction or the Manufacturer otherwise believes in good faith that it is or could be the subject of conflicting claims or another dispute hereunder as to the relative rights and interests of the Relevant Parties, the Manufacturer shall have the right to refrain from acting in accordance with any Relevant Notice until the Relevant Parties obtain a final and non-appealable order from a court of appropriate jurisdiction (which may be a bankruptcy court) setting forth the relative rights of the Relevant Parties and until such order is obtained the Manufacturer shall be permitted to perform hereunder to and on the instruction of the person that is the then Entitled Party designated prior to such proceeding, conflicting claim or other dispute having arisen and the Manufacturer shall have no liability to any other Relevant Party in connection therewith. Any Relevant Party shall indemnify, defend and hold harmless the Manufacturer from all Liabilities (including legal fees and expenses, including legal fees and expenses incurred in connection with the enforcement of this indemnity) incurred, imposed on, asserted against or suffered by the Manufacturer and arising out or related to any such proceeding, conflicting claim, dispute or court order; |
5.5 | without limiting the foregoing, the Manufacturer may refrain from doing anything and shall not be required to take any action that, in its good faith opinion, is contrary to any applicable law or regulation, may be otherwise actionable in any legal proceeding by any person or otherwise expose the Manufacturer to liability, and may do anything which, in its good faith opinion, is necessary or desirable to comply with any applicable law or regulation; and |
5.6 | the Manufacturer shall not be deemed to have knowledge of any change in the authority of any Relevant Party to exercise the rights established under this Agreement until the Manufacturer has received written notice thereof in accordance with this Agreement. |
6. | PARTIAL INVALIDITY |
7. | REMEDIES AND WAIVERS |
8. | NOTICES |
8.1 | Form of Communication |
8.1.1 | if sent by post, five (5) Business Days after posting; and |
8.1.2 | if sent by fax, when confirmation of its clear transmission has been recorded on the sender's fax machine. Any notice or other communication delivered to the Manufacturer outside 9am to 5pm (Toulouse time) on a Business Day shall only be deemed effective at 9am (Toulouse time) on the next Business Day. |
8.2 | Relevant Parties' Addresses |
8.3 | Manufacturer's Address |
8.4 | Electronic Mail |
9. | BENEFIT OF AGREEMENT |
10. | LAW AND JURISDICTION |
10.1 | Governing Law |
10.2 | Exclusive Jurisdiction |
10.2.1 | Pursuant to and in accordance with Section 5 1402 of the New York General Obligations Law, each of the Manufacturer and (by their signature of Relevant Notice(s)) the Relevant Parties irrevocably agrees that the United States District Court for the Southern District of New York sitting in The Borough of Manhattan and any New York state court sitting in the County of New York, New York, and all related appellate courts, shall have exclusive jurisdiction to hear and settle any suit, action, proceeding or other dispute arising out of or relating to this Agreement, including any claim or cause of action based upon or arising out of this Agreement or any dealings between the parties relating to the subject matter of this Agreement or the transactions contemplated hereby or the relationships being established hereunder and submits itself and its property to the jurisdiction of the foregoing courts with respect to such suit, action, proceeding or other dispute, hereby waiving any other jurisdictions which may be available thereto by reason of domicile or otherwise. |
10.2.2 | Each of the Manufacturer and (by their signature of Relevant Notice(s)) the Relevant Parties: |
(a) | waives to the fullest extent permitted by law any objection which it may now or hereafter have to the courts referred to in Clause 10.2.1 (Exclusive Jurisdiction) on grounds of inconvenient forum or otherwise as regards suits, actions, proceedings or other disputes in connection with this Agreement; |
(b) | waives to the fullest extent permitted by law any objection which it may now or hereafter have to the laying of venue of any suit, action, proceeding or other dispute arising out of or relating to this Agreement brought in the courts referred to in Clause 10.2.1 (Exclusive Jurisdiction); and |
(c) | agrees that a judgment or order of any court referred to in Clause 10.2.1 (Exclusive Jurisdiction) in connection with this Agreement is conclusive and binding on it and may be enforced against it in the courts of any other jurisdiction as if made by the highest court in that other jurisdiction and accordingly will not seek to, nor be entitled to, contest and/or delay and/or obstruct registration or enforcement of any such judgment and/or award and/or order on grounds of public policy or otherwise. |
10.2.3 | Waiver of Jury Trial |
10.3 | Service of Process |
(i) | in the case of the Entitled Party: the person that has the present right to possession of the Airframe, whether (a) as owner, mortgagee or pledgee or under a lease or other bailment of the Airframe or any analogous instrument or (b) as a duly appointed nominee of any such person; |
(ii) | in the case of the Controlling Party: a person that either (a) has the present right to possession of the Airframe whether (x) as owner, mortgagee or pledgee or under a lease or other bailment of the Airframe or any analogous instrument or (y) as a duly appointed nominee of any such person; or (b) may have such right subject only to the enforcement of rights under the Transaction Documents; and |
(iii) | in all cases, a person that is neither (a) subject to any sanctions or similar instruments such as would result in the Manufacturer being in breach of any laws or sanctions of the United States of America, France, the European Union or the United Nations by having a legal relationship under this Agreement with such person in respect of the Warranties and the Airframe nor (b) an aircraft manufacturer or a person owned or controlled by an aircraft manufacturer. |
1 | The Items covered by the Service Life Policy pursuant to Clause 12.2 are those Seller Items of primary and auxiliary structure described hereunder. |
2 | WINGS - CENTER AND OUTER WING BOX (LEFT AND RIGHT) |
2.1 | Wing Structure |
2.1.1 | Spars |
2.1.2 | Ribs and stringers inside the wing box |
2.1.3 | Upper and lower wing skin panels of the wing box |
2.2 | Fittings |
2.2.1 | Support structure and attachment fittings for the flap structure |
2.2.2 | Support structure and attachment fitting for the engine pylons |
2.2.3 | Support structure and attachment fitting for the main landing gear |
2.2.4 | Support structure and attachment fitting for the center wing box |
2.3 | Auxiliary Support Structure |
2.3.1 | For the slats: |
2.3.1.1 | Ribs supporting the track rollers on wing box structure |
2.3.1.2 | Ribs supporting the actuators on wing box structure |
2.3.2 | For the ailerons: |
2.3.2.1 | Hinge brackets and ribs on wing box rear spar or shroud box |
2.3.2.2 | Actuator fittings on wing box rear spar or shroud box |
2.3.3 | For airbrakes, spoilers, lift dumpers: |
2.3.3.1 | Hinge brackets and ribs on wing box rear spar or shroud box |
2.3.3.2 | Actuator fittings on wing box rear spar or shroud box |
2.4 | Pylon |
2.4.1 | For the Pylon Main Structural Box |
2.4.1.1 | Spars |
2.4.1.2 | Ribs |
2.4.1.3 | Skin, doublers and stiffeners |
2.4.1.4 | Support structure and attachment fitting for engine supports |
3.1 | Fuselage structure |
3.1.1 | Fore and aft bulkheads |
3.1.4 | Window and windscreen attachment structure but excluding transparencies |
3.1.5 | Passenger and cargo doors internal structure |
3.1.6 | Sills, excluding scuff plates, and upper beams surrounding passenger and cargo door apertures |
3.1.7 | Cockpit floor structure and passenger cabin floor beams excluding floor panels and seat rails |
3.1.8 | Keel beam structure |
3.2 | Fittings |
3.2.1 | Landing gear support structure and attachment fitting |
3.2.2 | Support structure and attachment fittings for the vertical and horizontal stabilizers |
3.2.3 | Support structure and attachment fitting for the APU |
4 | STABILIZERS |
4.1 | Horizontal Stabilizer Main Structural Box |
4.1.1 | Spars |
4.1.2 | Ribs |
4.1.3 | Upper and lower skins and stringers |
4.1.4 | Support structure and attachment fitting 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 |
4.2.2 | Ribs |
4.2.3 | Skins and stringers |
4.2.4 | Support structure and attachment fitting to fuselage |
4.2.5 | Rudder support structure |
4.2.5.1 | Hinge brackets |
4.2.5.2 | Servocontrol attachment brackets |
5 | EXCLUSIONS |
CC: | [Name of Buyer] [NB - N/A if Buyer is Initial Entitled Party or Initial Controlling Party] |
1. | Unless otherwise defined, terms used in this notice bear the same meanings as those set forth in the airframe warranties agreement dated [•] entered into by Airbus S.A.S. in relation to the Airframe (the "Airframe Warranties Agreement"). |
2. | We hereby give notice that: (a) [•] is the Initial Entitled Party; and (b) [•] is the Initial Controlling Party. |
3. | The contact details of the Initial Entitled Party for the purposes of clause 8.2 (Relevant Parties' Addresses) of the Airframe Warranties Agreement are as follows: |
4. | The contact details of the Initial Controlling Party for the purposes of clause 8.2 (Relevant Parties' Addresses) of the Airframe Warranties Agreement are as follows: |
5. | This is the Initial Notice. |
6. | By its signature below and in consideration of the Manufacturer making available to it the rights specified under the Airframe Warranties Agreement and for other good and valuable consideration, receipt of which is hereby acknowledged, the Initial Entitled Party hereby: (i) represents and warrants that it is an Eligible Person; and (ii) joins as party to, and agrees to be bound by and perform its obligations under (as, and for so long as it remains, the Entitled Party) the terms and conditions of, the Airframe Warranties Agreement. |
7. | By its signature below and in consideration of the Manufacturer making available to it the rights specified under the Airframe Warranties Agreement and for other good and valuable consideration, receipt of which is hereby acknowledged, the Initial Controlling Party hereby: (i) represents and warrants that it is an Eligible Person; and (ii) joins as party to, and agrees to be bound by and perform its obligations under (as, and for so long as it remains, the Controlling Party) the terms and conditions of, the Airframe Warranties Agreement. |
8. | This notice shall be governed by and construed in accordance with the laws of the State of New York. |
1. | Unless otherwise defined, terms used in this notice bear the same meanings as those set forth in the airframe warranties agreement dated [•] entered into by Airbus S.A.S. in relation to the Airframe (the "Airframe Warranties Agreement"). |
2. | [•] (the "Controlling Party") hereby gives notice that, as from today's date: (a) [•] (being the "Outgoing Entitled Party" for the purposes of the Airframe Warranties Agreement) has ceased to be the Entitled Party; and (b) [•] (the "New Entitled Party") is the new Entitled Party. |
3. | The contact details of the New Entitled Party for the purposes of clause 8.2 (Relevant Parties' Addresses) of the Airframe Warranties Agreement are as follows: |
4. | This is a Replacement Entitled Party Notice. |
5. | By its signature below and in consideration of the Manufacturer making available to it the rights specified under the Airframe Warranties Agreement and for other good and valuable consideration, receipt of which is hereby acknowledged, the New Entitled Party hereby: (i) represents and warrants that it is an Eligible Person; and (ii) joins as party to, and agrees to be bound by and perform its obligations under (as, and for so long as it remains, the Entitled Party) the terms and conditions of, the Airframe Warranties Agreement. |
6. | This notice shall be governed by and construed in accordance with the laws of the State of New York. |
1. | Unless otherwise defined, terms used in this notice bear the same meanings as those set forth in the airframe warranties agreement dated [•] entered into by Airbus S.A.S. in relation to the Airframe (the "Airframe Warranties Agreement"). |
2. | We hereby give notice that, as from today's date: [•] (the "Outgoing Controlling Party") has ceased to be the Controlling Party; and [•] (the "New Controlling Party") is the new Controlling Party. |
3. | The contact details of the New Controlling Party for the purposes of clause 8.2 (Relevant Parties' Addresses) of the Airframe Warranties Agreement are as follows: |
4. | This is a Replacement Controlling Party Notice. |
5. | By its signature below and in consideration of the Manufacturer making available to it the rights specified under the Airframe Warranties Agreement and for other good and valuable consideration, receipt of which is hereby acknowledged, the New Controlling Party hereby: (i) represents and warrants that it is an Eligible Person; and (ii) joins as party to, and agrees to be bound by and perform its obligations under (as, and for so long as it remains, the Controlling Party) the terms and conditions of, the Airframe Warranties Agreement. |
6. | This notice shall be governed by and construed in accordance with the laws of the State of New York. |
1 | [***] |
2 | ASSIGNMENT |
3 | MISCELLANEOUS |
1 | [***] |
2 | ASSIGNMENT |
3.1.1 | The departure airport conditions (assumed representative of BOG runway 13R) are as defined below: |
3.1.2 | An allowance of 430 lb of fuel is assumed for 13 min APU, engine start and 14 min taxi-out. |
3.1.3 | An allowance of 460 lb of fuel is assumed for take-off and initial climb to 1,500 ft pressure altitude above departure airport with acceleration to climb speed. |
3.1.4 | Climb from 1,500 ft pressure altitude above departure airport to cruise altitude using maximum climb thrust, cruise at optimum westbound flight levels at a fixed Mach number not less than 0.78 and descent to 1,500 ft pressure altitude above destination airport are conducted in ISA+5°C conditions. Climb and descent speeds below 10,000 ft shall be 250 knots CAS. |
3.1.5 | An allowance of 280 lb of fuel is assumed for 6 min approach and landing at destination airport. |
3.1.6 | An allowance of 200 lb of fuel is assumed for 9 min taxi-in (taken from the reserves). |
3.1.7 | Stage Distance is defined as the distance covered during climb, cruise and descent as described above. |
3.1.8 | At the end of approach and landing, an amount of 7,760 lb of fuel will remain in the tanks. This represents the estimated fuel required for: |
3.2.1 | The departure airport conditions (assumed representative of DFW runway 18L) are as defined below: |
3.2.2 | An allowance of 430 lb of fuel is assumed for 13 min APU, engine start and 14 min taxi-out. |
3.2.3 | An allowance of 360 lb of fuel is assumed for take-off and initial climb to 1,500 ft pressure altitude above departure airport with acceleration to climb speed. |
3.2.4 | Climb from 1,500 ft pressure altitude above departure airport to cruise altitude using maximum climb thrust, cruise at optimum eastbound flight levels at a fixed Mach number not less than 0.78 and descent to 1,500 ft pressure altitude above destination airport are conducted in ISA+5°C conditions. Climb and descent speeds below 10,000 ft shall be 250 knots CAS. |
3.2.5 | An allowance of 280 lb of fuel is assumed for 6 min approach and landing at destination airport. |
3.2.6 | An allowance of 200 lb of fuel is assumed for 9 min taxi-in (taken from the reserves). |
3.2.7 | Stage Distance is defined as the distance covered during climb, cruise and descent as described above. |
3.2.8 | At the end of approach and landing, an amount of 8,030 lb of fuel will remain in the tanks. This represents the estimated fuel required for: |
3.3.1 | The departure airport conditions (assumed representative of DFW runway 18L) are as defined below: |
3.3.2 | An allowance of 430 lb of fuel is assumed for 13 min APU, engine start and 14 min taxi-out. |
3.3.3 | An allowance of 390 lb of fuel is assumed for take-off and initial climb to 1,500 ft pressure altitude above departure airport with acceleration to climb speed. |
3.3.4 | Climb from 1,500 ft pressure altitude above departure airport to cruise altitude using maximum climb thrust, cruise at optimum eastbound flight levels at a fixed Mach number not less than 0.78 and descent to 1,500 ft pressure altitude above destination airport are conducted in ISA+5°C conditions. Climb and descent speeds below 10,000 ft shall be 250 knots CAS. |
3.3.5 | An allowance of 290 lb of fuel is assumed for 6 min approach and landing at destination airport. |
3.3.6 | An allowance of 200 lb of fuel is assumed for 9 min taxi-in (taken from the reserves). |
3.3.7 | Stage Distance is defined as the distance covered during climb, cruise and descent as described above. |
3.3.8 | At the end of approach and landing, an amount of 7,920 lb of fuel will remain in the tanks. This represents the estimated fuel required for: |
6.1 | The performance certification requirements for the Aircraft, except where otherwise stated, are as stated in Section 02 of the Standard Specification. |
6.2 | For the determination of FAR take-off and landing performance a hard level dry runway surface with no runway strength limitation, no line-up allowance, no obstacles, zero wind, atmosphere according to ISA, except as otherwise stated, and the use of speedbrakes, flaps, associated speeds, landing gear, centre of gravity position and engines in the conditions liable to provide the best results are assumed. |
6.3 | When establishing take-off performance no air is bled from the engines for cabin air conditioning or anti-icing. |
6.5 | Where applicable the Performance Guarantees assume the use of an approved fuel with a density of 6.7 lb/USG and a Lower Heating Value of 18,590 BTU/lb. |
7.1 | Compliance with the Performance Guarantees shall be demonstrated using operating procedures and limitations in accordance with those defined by the Aviation Authority and by the Seller unless otherwise stated. |
7.2 | Compliance with the take-off, landing, one engine inoperative net ceiling and noise elements of the Performance Guarantees shall be demonstrated with reference to the approved Flight Manual. |
7.3 | Compliance with those parts of the Performance Guarantees defined in Clauses 2 and 3 above not covered by the requirements of the Aviation Authority shall be demonstrated by calculation based on data obtained during flight tests conducted on one (or more, at the Seller's discretion) A319neo aircraft of the same airframe/engine configuration as the Aircraft purchased by the Buyer and incorporated in the in-flight performance program and databases appropriate to the Aircraft. |
7.4 | Data derived from flight tests shall be adjusted as required using conventional methods of correction, interpolation or extrapolation in accordance with established aeronautical practices to show compliance with the Performance Guarantees. |
7.5 | Compliance with the Manufacturer's Weight Empty guarantee shall be demonstrated with reference to a weight compliance report. |
7.6 | The Seller undertakes to provide the Buyer with a report or reports demonstrating compliance with the Performance Guarantees at, or as soon as possible after, the Delivery of each Aircraft. |
8.1 | In the event of any change to any law, governmental regulation or requirement or interpretation thereof by the Aviation Authority made subsequent to the date of the Agreement (the "Change in Law"), and such a Change in Law affects the Aircraft configuration or performance or both, the Performance Guarantees shall be appropriately modified to reflect the effect of such change. |
8.2 | The Performance Guarantees apply to the Aircraft as described in the Performance Guarantees and may be adjusted in the event of: |
10.1 | Should an Aircraft fail to meet the Performance Guarantees specified in this Letter Agreement, the Seller shall use its reasonable endeavours to correct the deficiency to comply with the subject performance guarantee. |
10.2 | Should the Seller fail to develop and make available corrective means (including but not limited to kits, procedures, adjustment of design weights) of the above said deficiency, then the Seller shall for the affected Aircraft pay to the Buyer by way of liquidated damages subject to the Seller's maximum liability set forth hereunder on each anniversary date of the Delivery Date of the affected Aircraft for as long as the deficiency remains an amount of: |
10.2.1 | [***] based on the deficiency (expressed in percent) defined as the average of the deviations from the guaranteed values of the Specific Range and of the Mission Block Fuel guarantees (part of a percent to be prorated). |
10.2.2 | [***] based on the deficiency (expressed in pounds) of the Mission Payload guarantees. |
10.2.3 | [***] based on the deficiency (expressed in pounds) of the Manufacturer's Weight Empty guarantee. |
10.3 | In the event the Seller develops and makes available corrective means mentioned above the Seller shall pay to the Buyer the monthly prorated portion of the yearly liquidated damages due by the Seller on account of the year during which the corrective means are made available. |
10.4 | The Seller's maximum liability in respect of deficiency in performance of an Aircraft shall be limited to the payment of liquidated damages for a period of not more than [***] for that Aircraft, whichever occurs first. Payment of liquidated damages shall be deemed to settle all claims and remedies the Buyer would have against the Seller in respect of performance deficiencies. |
3.1.1 | The departure airport conditions (assumed representative of BOG runway 13R) are as defined below: |
3.1.2 | An allowance of 410 lb of fuel is assumed for 13 min APU, engine start and 14 min taxi-out. |
3.1.3 | An allowance of 460 lb of fuel is assumed for take-off and initial climb to 1,500 ft pressure altitude above departure airport with acceleration to climb speed. |
3.1.4 | Climb from 1,500 ft pressure altitude above departure airport to cruise altitude using maximum climb thrust, cruise at optimum westbound flight levels at a fixed Mach number not less than 0.78 and descent to 1,500 ft pressure altitude above destination airport are conducted in ISA+5°C conditions. Climb and descent speeds below 10,000 ft shall be 250 knots CAS. |
3.1.5 | An allowance of 280 lb of fuel is assumed for 6 min approach and landing at destination airport. |
3.1.6 | An allowance of 190 lb of fuel is assumed for 9 min taxi-in (taken from the reserves). |
3.1.7 | Stage Distance is defined as the distance covered during climb, cruise and descent as described above. |
3.1.8 | At the end of approach and landing, an amount of 7,850 lb of fuel will remain in the tanks. This represents the estimated fuel required for: |
3.2.1 | The departure airport conditions (assumed representative of DFW runway 18L) are as defined below: |
3.2.2 | An allowance of 410 lb of fuel is assumed for 13 min APU, engine start and 14 min taxi-out. |
3.2.3 | An allowance of 360 lb of fuel is assumed for take-off and initial climb to 1,500 ft pressure altitude above departure airport with acceleration to climb speed. |
3.2.4 | Climb from 1,500 ft pressure altitude above departure airport to cruise altitude using maximum climb thrust, cruise at optimum eastbound flight levels at a fixed Mach number not less than 0.78 and descent to 1,500 ft pressure altitude above destination airport are conducted in ISA+5°C conditions. Climb and descent speeds below 10,000 ft shall be 250 knots CAS. |
3.2.5 | An allowance of 280 lb of fuel is assumed for 6 min approach and landing at destination airport. |
3.2.6 | An allowance of 190 lb of fuel is assumed for 9 min taxi-in (taken from the reserves). |
3.2.7 | Stage Distance is defined as the distance covered during climb, cruise and descent as described above. |
3.2.8 | At the end of approach and landing, an amount of 7,960 lb of fuel will remain in the tanks. This represents the estimated fuel required for: |
3.3.1 | The departure airport conditions (assumed representative of DFW runway 18L) are as defined below: |
3.3.2 | An allowance of 410 lb of fuel is assumed for 13 min APU, engine start and 14 min taxi-out. |
3.3.3 | An allowance of 380 lb of fuel is assumed for take-off and initial climb to 1,500 ft pressure altitude above departure airport with acceleration to climb speed. |
3.3.4 | Climb from 1,500 ft pressure altitude above departure airport to cruise altitude using maximum climb thrust, cruise at optimum eastbound flight levels at a fixed Mach number not less than 0.78 and descent to 1,500 ft pressure altitude above destination airport are conducted in ISA+5°C conditions. Climb and descent speeds below 10,000 ft shall be 250 knots CAS. |
3.3.5 | An allowance of 280 lb of fuel is assumed for 6 min approach and landing at destination airport. |
3.3.6 | An allowance of 190 lb of fuel is assumed for 9 min taxi-in (taken from the reserves). |
3.3.7 | Stage Distance is defined as the distance covered during climb, cruise and descent as described above. |
3.3.8 | At the end of approach and landing, an amount of 7,850 lb of fuel will remain in the tanks. This represents the estimated fuel required for: |
6.1 | The performance certification requirements for the Aircraft, except where otherwise stated, are as stated in Section 02 of the Standard Specification. |
6.2 | For the determination of FAR take-off and landing performance a hard level dry runway surface with no runway strength limitation, no line-up allowance, no obstacles, zero wind, atmosphere according to ISA, except as otherwise stated, and the use of speedbrakes, flaps, associated speeds, landing gear, centre of gravity position and engines in the conditions liable to provide the best results are assumed. |
6.3 | When establishing take-off performance no air is bled from the engines for cabin air conditioning or anti-icing. |
6.4 | Climb, cruise, descent and holding performance elements of the Performance Guarantees include allowances for normal electrical load and for normal engine air bleed and power extraction associated with maximum cabin differential pressure as defined in the Standard Specification. Cabin air conditioning management during performance demonstration as described in Clause 7.3 below will be such as to optimize the Aircraft performance while meeting the minimum air conditioning requirements defined above. Unless otherwise stated no air is bled from the engines for anti-icing. |
6.5 | Where applicable the Performance Guarantees assume the use of an approved fuel with a density of 6.7 lb/USG and a Lower Heating Value of 18,590 BTU/lb. |
7.1 | Compliance with the Performance Guarantees shall be demonstrated using operating procedures and limitations in accordance with those defined by the Aviation Authority and by the Seller unless otherwise stated. |
7.2 | Compliance with the take-off, landing, one engine inoperative net ceiling and noise elements of the Performance Guarantees shall be demonstrated with reference to the approved Flight Manual. |
7.3 | Compliance with those parts of the Performance Guarantees defined in Clauses 2 and 3 above not covered by the requirements of the Aviation Authority shall be demonstrated by calculation based on data obtained during flight tests conducted on one (or more, at the Seller's discretion) A319neo aircraft of the same airframe/engine configuration as the Aircraft purchased by the Buyer and incorporated in the in-flight performance program and databases appropriate to the Aircraft. |
7.4 | Data derived from flight tests shall be adjusted as required using conventional methods of correction, interpolation or extrapolation in accordance with established aeronautical practices to show compliance with the Performance Guarantees. |
7.5 | Compliance with the Manufacturer's Weight Empty guarantee shall be demonstrated with reference to a weight compliance report. |
7.6 | The Seller undertakes to provide the Buyer with a report or reports demonstrating compliance with the Performance Guarantees at, or as soon as possible after, the Delivery of each Aircraft. |
8.1 | In the event of any change to any law, governmental regulation or requirement or interpretation thereof by the Aviation Authority made subsequent to the date of the Agreement (the "Change in Law"), and such a Change in Law affects the Aircraft configuration or performance or both, the Performance Guarantees shall be appropriately modified to reflect the effect of such change. |
8.2 | The Performance Guarantees apply to the Aircraft as described in the Performance Guarantees and may be adjusted in the event of: |
10.1 | Should an Aircraft fail to meet the Performance Guarantees specified in this Letter Agreement, the Seller shall use its reasonable endeavours to correct the deficiency to comply with the subject performance guarantee. |
10.2 | Should the Seller fail to develop and make available corrective means (including but not limited to kits, procedures, adjustment of design weights) of the above said deficiency, then the Seller shall for the affected Aircraft pay to the Buyer by way of liquidated damages subject to the Seller's maximum liability set forth hereunder on each anniversary date of the Delivery Date of the affected Aircraft for as long as the deficiency remains an amount of: |
10.2.1 | [***] based on the deficiency (expressed in percent) defined as the average of the deviations from the guaranteed values of the Specific Range and of the Mission Block Fuel guarantees (part of a percent to be prorated). |
10.2.2 | [***] based on the deficiency (expressed in pounds) of the Mission Payload guarantees. |
10.2.3 | [***] based on the deficiency (expressed in pounds) of the Manufacturer's Weight Empty guarantee. |
10.3 | In the event the Seller develops and makes available corrective means mentioned above the Seller shall pay to the Buyer the monthly prorated portion of the yearly liquidated damages due by the Seller on account of the year during which the corrective means are made available. |
10.4 | The Seller's maximum liability in respect of deficiency in performance of an Aircraft shall be limited to the payment of liquidated damages for a period [***] for that Aircraft, whichever occurs first. Payment of liquidated damages shall be deemed to settle all claims and remedies the Buyer would have against the Seller in respect of performance deficiencies. |
3.1.1 | The departure airport conditions (assumed representative of BOG runway 13R) are as defined below: |
3.1.2 | An allowance of 430 lb of fuel is assumed for 13 min APU, engine start and 14 min taxi-out. |
3.1.3 | An allowance of 530 lb of fuel is assumed for take-off and initial climb to 1,500 ft pressure altitude above departure airport with acceleration to climb speed. |
3.1.4 | Climb from 1,500 ft pressure altitude above departure airport to cruise altitude using maximum climb thrust, cruise at optimum westbound flight levels at a fixed Mach number not less than 0.78 and descent to 1,500 ft pressure altitude above destination airport are conducted in ISA+5°C conditions. Climb and descent speeds below 10,000 ft shall be 250 knots CAS. |
3.1.5 | An allowance of 310 lb of fuel is assumed for 6 min approach and landing at destination airport. |
3.1.6 | An allowance of 200 lb of fuel is assumed for 9 min taxi-in (taken from the reserves). |
3.1.7 | Stage Distance is defined as the distance covered during climb, cruise and descent as described above. |
3.1.8 | At the end of approach and landing, an amount of 8,500 lb of fuel will remain in the tanks. This represents the estimated fuel required for: |
3.2.1 | The departure airport conditions (assumed representative of DFW runway 18L) are as defined below: |
3.2.2 | An allowance of 430 lb of fuel is assumed for 13 min APU, engine start and 14 min taxi-out. |
3.2.3 | An allowance of 390 lb of fuel is assumed for take-off and initial climb to 1,500 ft pressure altitude above departure airport with acceleration to climb speed. |
3.2.4 | Climb from 1,500 ft pressure altitude above departure airport to cruise altitude using maximum climb thrust, cruise at optimum eastbound flight levels at a fixed Mach number not less than 0.78 and descent to 1,500 ft pressure altitude |
3.2.5 | An allowance of 310 lb of fuel is assumed for 6 min approach and landing at destination airport. |
3.2.6 | An allowance of 200 lb of fuel is assumed for 9 min taxi-in (taken from the reserves). |
3.2.7 | Stage Distance is defined as the distance covered during climb, cruise and descent as described above. |
3.2.8 | At the end of approach and landing, an amount of 8,590 lb of fuel will remain in the tanks. This represents the estimated fuel required for: |
3.3.1 | The departure airport conditions (assumed representative of DFW runway 18L) are as defined below: |
3.3.2 | An allowance of 430 lb of fuel is assumed for 13 min APU, engine start and 14 min taxi-out. |
3.3.3 | An allowance of 420 lb of fuel is assumed for take-off and initial climb to 1,500 ft pressure altitude above departure airport with acceleration to climb speed. |
3.3.4 | Climb from 1,500 ft pressure altitude above departure airport to cruise altitude using maximum climb thrust, cruise at optimum eastbound flight levels at a fixed Mach number not less than 0.78 and descent to 1,500 ft pressure altitude above destination airport are conducted in ISA+5°C conditions. Climb and descent speeds below 10,000 ft shall be 250 knots CAS. |
3.3.5 | An allowance of 310 lb of fuel is assumed for 6 min approach and landing at destination airport. |
3.3.6 | An allowance of 200 lb of fuel is assumed for 9 min taxi-in (taken from the reserves). |
3.3.7 | Stage Distance is defined as the distance covered during climb, cruise and descent as described above. |
3.3.8 | At the end of approach and landing, an amount of 8,490 lb of fuel will remain in the tanks. This represents the estimated fuel required for: |
6.1 | The performance certification requirements for the Aircraft, except where otherwise stated, are as stated in Section 02 of the Standard Specification. |
6.2 | For the determination of FAR take-off and landing performance a hard level dry runway surface with no runway strength limitation, no line-up allowance, no obstacles, zero wind, atmosphere according to ISA, except as otherwise stated, and the use of speedbrakes, flaps, associated speeds, landing gear, centre of gravity position and engines in the conditions liable to provide the best results are assumed. |
6.3 | When establishing take-off performance no air is bled from the engines for cabin air conditioning or anti-icing. |
6.4 | Climb, cruise, descent and holding performance elements of the Performance Guarantees include allowances for normal electrical load and for normal engine air bleed and power extraction associated with maximum cabin differential pressure as defined in the Standard Specification. Cabin air conditioning management during performance demonstration as described in Clause 7.3 below will be such as to optimize the Aircraft performance while meeting the minimum air conditioning requirements defined above. Unless otherwise stated no air is bled from the engines for anti-icing. |
6.5 | Where applicable the Performance Guarantees assume the use of an approved fuel with a density of 6.7 lb/USG and a Lower Heating Value of 18,590 BTU/lb. |
7.1 | Compliance with the Performance Guarantees shall be demonstrated using operating procedures and limitations in accordance with those defined by the Aviation Authority and by the Seller unless otherwise stated. |
7.2 | Compliance with the take-off, landing, one engine inoperative net ceiling and noise elements of the Performance Guarantees shall be demonstrated with reference to the approved Flight Manual. |
7.3 | Compliance with those parts of the Performance Guarantees defined in Clauses 2 and 3 above not covered by the requirements of the Aviation Authority shall be demonstrated by calculation based on data obtained during flight tests conducted on one (or more, at the Seller's discretion) A320neo aircraft of the same airframe/engine configuration as the Aircraft purchased by the Buyer and incorporated in the in-flight performance program and databases appropriate to the Aircraft. |
7.4 | Data derived from flight tests shall be adjusted as required using conventional methods of correction, interpolation or extrapolation in accordance with established aeronautical practices to show compliance with the Performance Guarantees. |
7.5 | Compliance with the Manufacturer's Weight Empty guarantee shall be demonstrated with reference to a weight compliance report. |
7.6 | The Seller undertakes to provide the Buyer with a report or reports demonstrating compliance with the Performance Guarantees at, or as soon as possible after, the Delivery of each Aircraft. |
8.1 | In the event of any change to any law, governmental regulation or requirement or interpretation thereof by the Aviation Authority made subsequent to the date of the Agreement (the "Change in Law"), and such a Change in Law affects the Aircraft configuration or performance or both, the Performance Guarantees shall be appropriately modified to reflect the effect of such change. |
8.2 | The Performance Guarantees apply to the Aircraft as described in the Performance Guarantees and may be adjusted in the event of: |
10.1 | Should an Aircraft fail to meet the Performance Guarantees specified in this Letter Agreement, the Seller shall use its reasonable endeavours to correct the deficiency to comply with the subject performance guarantee. |
10.2 | Should the Seller fail to develop and make available corrective means (including but not limited to kits, procedures, adjustment of design weights) of the above said deficiency, then the Seller shall for the affected Aircraft pay to the Buyer by way of liquidated damages subject to the Seller's maximum liability set forth hereunder on each anniversary date of the Delivery Date of the affected Aircraft for as long as the deficiency remains an amount of: |
10.2.1 | [***] based on the deficiency (expressed in percent) defined as the average of the deviations from the guaranteed values of the Specific Range and of the Mission Block Fuel guarantees (part of a percent to be prorated). |
10.2.2 | [***] based on the deficiency (expressed in pounds) of the Mission Payload guarantees. |
10.2.3 | [***] based on the deficiency (expressed in pounds) of the Manufacturer's Weight Empty guarantee. |
10.3 | In the event the Seller develops and makes available corrective means mentioned above the Seller shall pay to the Buyer the monthly prorated portion of the yearly liquidated damages due by the Seller on account of the year during which the corrective means are made available. |
10.4 | The Seller's maximum liability in respect of deficiency in performance of an Aircraft shall be limited to the payment of liquidated damages for a period [***] for that Aircraft, whichever occurs first. Payment of liquidated damages shall be deemed to settle all claims and remedies the Buyer would have against the Seller in respect of performance deficiencies. |
3.1.1 | The departure airport conditions (assumed representative of BOG runway 13R) are as defined below: |
3.1.2 | An allowance of 410 lb of fuel is assumed for 13 min APU, engine start and 14 min taxi-out. |
3.1.3 | An allowance of 510 lb of fuel is assumed for take-off and initial climb to 1,500 ft pressure altitude above departure airport with acceleration to climb speed. |
3.1.4 | Climb from 1,500 ft pressure altitude above departure airport to cruise altitude using maximum climb thrust, cruise at optimum westbound flight levels at a fixed Mach number not less than 0.78 and descent to 1,500 ft pressure altitude above destination airport are conducted in ISA+5°C conditions. Climb and descent speeds below 10,000 ft shall be 250 knots CAS. |
3.1.5 | An allowance of 290 lb of fuel is assumed for 6 min approach and landing at destination airport. |
3.1.6 | An allowance of 190 lb of fuel is assumed for 9 min taxi-in (taken from the reserves). |
3.1.7 | Stage Distance is defined as the distance covered during climb, cruise and descent as described above. |
3.1.8 | At the end of approach and landing, an amount of 8,500 lb of fuel will remain in the tanks. This represents the estimated fuel required for: |
3.2.1 | The departure airport conditions (assumed representative of DFW runway 18L) are as defined below: |
3.2.2 | An allowance of 410 lb of fuel is assumed for 13 min APU, engine start and 14 min taxi-out. |
3.2.3 | An allowance of 380 lb of fuel is assumed for take-off and initial climb to 1,500 ft pressure altitude above departure airport with acceleration to climb speed. |
3.2.4 | Climb from 1,500 ft pressure altitude above departure airport to cruise altitude using maximum climb thrust, cruise at optimum eastbound flight levels at a fixed Mach number not less than 0.78 and descent to 1,500 ft pressure altitude |
3.2.5 | An allowance of 290 lb of fuel is assumed for 6 min approach and landing at destination airport. |
3.2.6 | An allowance of 190 lb of fuel is assumed for 9 min taxi-in (taken from the reserves). |
3.2.7 | Stage Distance is defined as the distance covered during climb, cruise and descent as described above. |
3.2.8 | At the end of approach and landing, an amount of 8,590 lb of fuel will remain in the tanks. This represents the estimated fuel required for: |
3.3.1 | The departure airport conditions (assumed representative of DFW runway 18L) are as defined below: |
3.3.2 | An allowance of 410 lb of fuel is assumed for 13 min APU, engine start and 14 min taxi-out. |
3.3.3 | An allowance of 400 lb of fuel is assumed for take-off and initial climb to 1,500 ft pressure altitude above departure airport with acceleration to climb speed. |
3.3.4 | Climb from 1,500 ft pressure altitude above departure airport to cruise altitude using maximum climb thrust, cruise at optimum eastbound flight levels at a fixed Mach number not less than 0.78 and descent to 1,500 ft pressure altitude above destination airport are conducted in ISA+5°C conditions. Climb and descent speeds below 10,000 ft shall be 250 knots CAS. |
3.3.5 | An allowance of 290 lb of fuel is assumed for 6 min approach and landing at destination airport. |
3.3.6 | An allowance of 190 lb of fuel is assumed for 9 min taxi-in (taken from the reserves). |
3.3.7 | Stage Distance is defined as the distance covered during climb, cruise and descent as described above. |
3.3.8 | At the end of approach and landing, an amount of 8,480 lb of fuel will remain in the tanks. This represents the estimated fuel required for: |
6.1 | The performance certification requirements for the Aircraft, except where otherwise stated, are as stated in Section 02 of the Standard Specification. |
6.2 | For the determination of FAR take-off and landing performance a hard level dry runway surface with no runway strength limitation, no line-up allowance, no obstacles, zero wind, atmosphere according to ISA, except as otherwise stated, and the use of speedbrakes, flaps, associated speeds, landing gear, centre of gravity position and engines in the conditions liable to provide the best results are assumed. |
6.3 | When establishing take-off performance no air is bled from the engines for cabin air conditioning or anti-icing. |
6.4 | Climb, cruise, descent and holding performance elements of the Performance Guarantees include allowances for normal electrical load and for normal engine air bleed and power extraction associated with maximum cabin differential pressure as defined in the Standard Specification. Cabin air conditioning management during performance demonstration as described in Clause 7.3 below will be such as to optimize the Aircraft performance while meeting the minimum air conditioning requirements defined above. Unless otherwise stated no air is bled from the engines for anti-icing. |
6.5 | Where applicable the Performance Guarantees assume the use of an approved fuel with a density of 6.7 lb/USG and a Lower Heating Value of 18,590 BTU/lb. |
7.1 | Compliance with the Performance Guarantees shall be demonstrated using operating procedures and limitations in accordance with those defined by the Aviation Authority and by the Seller unless otherwise stated. |
7.2 | Compliance with the take-off, landing, one engine inoperative net ceiling and noise elements of the Performance Guarantees shall be demonstrated with reference to the approved Flight Manual. |
7.3 | Compliance with those parts of the Performance Guarantees defined in Clauses 2 and 3 above not covered by the requirements of the Aviation Authority shall be demonstrated by calculation based on data obtained during flight tests conducted on one (or more, at the Seller's discretion) A320neo aircraft of the same airframe/engine configuration as the Aircraft purchased by the Buyer and incorporated in the in-flight performance program and databases appropriate to the Aircraft. |
7.4 | Data derived from flight tests shall be adjusted as required using conventional methods of correction, interpolation or extrapolation in accordance with established aeronautical practices to show compliance with the Performance Guarantees. |
7.5 | Compliance with the Manufacturer's Weight Empty guarantee shall be demonstrated with reference to a weight compliance report. |
7.6 | The Seller undertakes to provide the Buyer with a report or reports demonstrating compliance with the Performance Guarantees at, or as soon as possible after, the Delivery of each Aircraft. |
8.1 | In the event of any change to any law, governmental regulation or requirement or interpretation thereof by the Aviation Authority made subsequent to the date of the Agreement (the "Change in Law"), and such a Change in Law affects the Aircraft configuration or performance or both, the Performance Guarantees shall be appropriately modified to reflect the effect of such change. |
8.2 | The Performance Guarantees apply to the Aircraft as described in the Performance Guarantees and may be adjusted in the event of: |
10.1 | Should an Aircraft fail to meet the Performance Guarantees specified in this Letter Agreement, the Seller shall use its reasonable endeavours to correct the deficiency to comply with the subject performance guarantee. |
10.2 | Should the Seller fail to develop and make available corrective means (including but not limited to kits, procedures, adjustment of design weights) of the above said deficiency, then the Seller shall for the affected Aircraft pay to the Buyer by way of liquidated damages subject to the Seller's maximum liability set forth hereunder on each anniversary date of the Delivery Date of the affected Aircraft for as long as the deficiency remains an amount of: |
10.2.1 | [***] based on the deficiency (expressed in percent) defined as the average of the deviations from the guaranteed values of the Specific Range and of the Mission Block Fuel guarantees (part of a percent to be prorated). |
10.2.2 | [***] based on the deficiency (expressed in pounds) of the Mission Payload guarantees. |
10.2.3 | [***] based on the deficiency (expressed in pounds) of the Manufacturer's Weight Empty guarantee. |
10.3 | In the event the Seller develops and makes available corrective means mentioned above the Seller shall pay to the Buyer the monthly prorated portion of the yearly liquidated damages due by the Seller on account of the year during which the corrective means are made available. |
10.4 | The Seller's maximum liability in respect of deficiency in performance of an Aircraft shall be limited to the payment of liquidated damages for a period [***] for that Aircraft, whichever occurs first. Payment of liquidated damages shall be deemed to settle all claims and remedies the Buyer would have against the Seller in respect of performance deficiencies. |
3.1.1 | The departure airport conditions (assumed representative of DFW runway 18L) are as defined in Clause 3.3.1 below. |
3.1.2 | An allowance of 430 lb of fuel is assumed for 13 min APU, engine start and 14 min taxi-out. |
3.1.3 | An allowance of 500 lb of fuel is assumed for take-off and initial climb to 1,500 ft pressure altitude above departure airport with acceleration to climb speed. |
3.1.4 | Climb from 1,500 ft pressure altitude above departure airport to cruise altitude using maximum climb thrust, cruise at optimum eastbound flight levels at a fixed Mach number not less than 0.78 and descent to 1,500 ft pressure altitude above destination airport are conducted in ISA+5°C conditions. Climb and descent speeds below 10,000 ft shall be 250 knots CAS. |
3.1.5 | An allowance of 380 lb of fuel is assumed for 6 min approach and landing at destination airport. |
3.1.6 | An allowance of 210 lb of fuel is assumed for 9 min taxi-in (taken from the reserves). |
3.1.7 | Stage Distance is defined as the distance covered during climb, cruise and descent as described above. |
3.1.8 | At the end of approach and landing, an amount of 10,040 lb of fuel will remain in the tanks. This represents the estimated fuel required for: |
3.2.1 | The departure airport conditions (assumed representative of DFW runway 18L) are as defined below: |
3.2.2 | An allowance of 430 lb of fuel is assumed for 13 min APU, engine start and 14 min taxi-out. |
3.2.3 | An allowance of 470 lb of fuel is assumed for take-off and initial climb to 1,500 ft pressure altitude above departure airport with acceleration to climb speed. |
3.2.4 | Climb from 1,500 ft pressure altitude above departure airport to cruise altitude using maximum climb thrust, cruise at optimum eastbound flight levels at a fixed Mach number not less than 0.78 and descent to 1,500 ft pressure altitude above destination airport are conducted in ISA+5°C conditions. Climb and descent speeds below 10,000 ft shall be 250 knots CAS. |
3.2.5 | An allowance of 380 lb of fuel is assumed for 6 min approach and landing at destination airport. |
3.2.6 | An allowance of 210 lb of fuel is assumed for 9 min taxi-in (taken from the reserves). |
3.2.7 | Stage Distance is defined as the distance covered during climb, cruise and descent as described above. |
3.2.8 | At the end of approach and landing, an amount of 10,100 lb of fuel will remain in the tanks. This represents the estimated fuel required for: |
3.3.1 | The departure airport conditions (assumed representative of DFW runway 18L) are as defined below: |
3.3.2 | An allowance of 430 lb of fuel is assumed for 13 min APU, engine start and 14 min taxi-out. |
3.3.3 | An allowance of 500 lb of fuel is assumed for take-off and initial climb to 1,500 ft pressure altitude above departure airport with acceleration to climb speed. |
3.3.4 | Climb from 1,500 ft pressure altitude above departure airport to cruise altitude using maximum climb thrust, cruise at optimum eastbound flight levels at a fixed Mach number not less than 0.78 and descent to 1,500 ft pressure altitude above destination airport are conducted in ISA+5°C conditions. Climb and descent speeds below 10,000 ft shall be 250 knots CAS. |
3.3.5 | An allowance of 380 lb of fuel is assumed for 6 min approach and landing at destination airport. |
3.3.6 | An allowance of 210 lb of fuel is assumed for 9 min taxi-in (taken from the reserves). |
3.3.7 | Stage Distance is defined as the distance covered during climb, cruise and descent as described above. |
3.3.8 | At the end of approach and landing, an amount of 9,970 lb of fuel will remain in the tanks. This represents the estimated fuel required for: |
6.1 | The performance certification requirements for the Aircraft, except where otherwise stated, are as stated in Section 02 of the Standard Specification. |
6.2 | For the determination of FAR take-off and landing performance a hard level dry runway surface with no runway strength limitation, no line-up allowance, no obstacles, zero wind, atmosphere according to ISA, except as otherwise stated, and the use of speedbrakes, flaps, associated speeds, landing gear, centre of gravity position and engines in the conditions liable to provide the best results are assumed. |
6.3 | When establishing take-off performance no air is bled from the engines for cabin air conditioning or anti-icing. |
6.4 | Climb, cruise, descent and holding performance elements of the Performance Guarantees include allowances for normal electrical load and for normal engine air bleed and power extraction associated with maximum cabin differential pressure as defined in the Standard Specification. Cabin air conditioning management during performance demonstration as described in Clause 7.3 below will be such as to optimize the Aircraft performance while meeting the minimum air conditioning requirements defined above. Unless otherwise stated no air is bled from the engines for anti-icing. |
6.5 | Where applicable the Performance Guarantees assume the use of an approved fuel with a density of 6.7 lb/USG and a Lower Heating Value of 18,590 BTU/lb. |
7.1 | Compliance with the Performance Guarantees shall be demonstrated using operating procedures and limitations in accordance with those defined by the Aviation Authority and by the Seller unless otherwise stated. |
7.2 | Compliance with the take-off, landing, one engine inoperative net ceiling and noise elements of the Performance Guarantees shall be demonstrated with reference to the approved Flight Manual. |
7.3 | Compliance with those parts of the Performance Guarantees defined in Clauses 2 and 3 above not covered by the requirements of the Aviation Authority shall be demonstrated by calculation based on data obtained during flight tests conducted on one (or more, at the Seller's discretion) A321neo aircraft of the same airframe/engine configuration as the Aircraft purchased by the Buyer and incorporated in the in-flight performance program and databases appropriate to the Aircraft. |
7.4 | Data derived from flight tests shall be adjusted as required using conventional methods of correction, interpolation or extrapolation in accordance with established aeronautical practices to show compliance with the Performance Guarantees. |
7.5 | Compliance with the Manufacturer's Weight Empty guarantee shall be demonstrated with reference to a weight compliance report. |
7.6 | The Seller undertakes to provide the Buyer with a report or reports demonstrating compliance with the Performance Guarantees at, or as soon as possible after, the Delivery of each Aircraft. |
8.1 | In the event of any change to any law, governmental regulation or requirement or interpretation thereof by the Aviation Authority made subsequent to the date of the Agreement (the "Change in Law"), and such a Change in Law affects the Aircraft configuration or performance or both, the Performance Guarantees shall be appropriately modified to reflect the effect of such change. |
8.2 | The Performance Guarantees apply to the Aircraft as described in the Performance Guarantees and may be adjusted in the event of: |
10.1 | Should an Aircraft fail to meet the Performance Guarantees specified in this Letter Agreement, the Seller shall use its reasonable endeavours to correct the deficiency to comply with the subject performance guarantee. |
10.2 | Should the Seller fail to develop and make available corrective means (including but not limited to kits, procedures, adjustment of design weights) of the above said deficiency, then the Seller shall for the affected Aircraft pay to the Buyer by way of liquidated damages subject to the Seller's maximum liability set forth hereunder on each anniversary date of the Delivery Date of the affected Aircraft for as long as the deficiency remains an amount of: |
10.2.1 | [***] on the deficiency (expressed in percent) defined as the average of the deviations from the guaranteed values of the Specific Range and of the Mission Block Fuel guarantees (part of a percent to be prorated). |
10.2.2 | [***] based on the deficiency (expressed in pounds) of the Mission Payload guarantees. |
10.2.3 | [***] based on the deficiency (expressed in pounds) of the Manufacturer's Weight Empty guarantee. |
10.3 | In the event the Seller develops and makes available corrective means mentioned above the Seller shall pay to the Buyer the monthly prorated portion of the yearly liquidated damages due by the Seller on account of the year during which the corrective means are made available. |
10.4 | The Seller's maximum liability in respect of deficiency in performance of an Aircraft shall be limited to the payment of liquidated damages for a period [***] for that Aircraft, whichever occurs first. Payment of liquidated damages shall be deemed to settle all claims and remedies the Buyer would have against the Seller in respect of performance deficiencies. |
3.1.1 | The departure airport conditions (assumed representative of DFW runway 18L) are as defined in Clause 3.3.1 below. |
3.1.2 | An allowance of 420 lb of fuel is assumed for 13 min APU, engine start and 14 min taxi-out. |
3.1.3 | An allowance of 500 lb of fuel is assumed for take-off and initial climb to 1,500 ft pressure altitude above departure airport with acceleration to climb speed. |
3.1.4 | Climb from 1,500 ft pressure altitude above departure airport to cruise altitude using maximum climb thrust, cruise at optimum eastbound flight levels at a fixed Mach number not less than 0.78 and descent to 1,500 ft pressure altitude above destination airport are conducted in ISA+5°C conditions. Climb and descent speeds below 10,000 ft shall be 250 knots CAS. |
3.1.5 | An allowance of 370 lb of fuel is assumed for 6 min approach and landing at destination airport. |
3.1.6 | An allowance of 200 lb of fuel is assumed for 9 min taxi-in (taken from the reserves). |
3.1.7 | Stage Distance is defined as the distance covered during climb, cruise and descent as described above. |
3.1.8 | At the end of approach and landing, an amount of 10,040 lb of fuel will remain in the tanks. This represents the estimated fuel required for: |
3.2.1 | The departure airport conditions (assumed representative of DFW runway 18L) are as defined below: |
3.2.2 | An allowance of 420 lb of fuel is assumed for 13 min APU, engine start and 14 min taxi-out. |
3.2.3 | An allowance of 460 lb of fuel is assumed for take-off and initial climb to 1,500 ft pressure altitude above departure airport with acceleration to climb speed. |
3.2.4 | Climb from 1,500 ft pressure altitude above departure airport to cruise altitude using maximum climb thrust, cruise at optimum eastbound flight levels at a fixed Mach number not less than 0.78 and descent to 1,500 ft pressure altitude above destination airport are conducted in ISA+5°C conditions. Climb and descent speeds below 10,000 ft shall be 250 knots CAS. |
3.2.5 | An allowance of 360 lb of fuel is assumed for 6 min approach and landing at destination airport. |
3.2.6 | An allowance of 200 lb of fuel is assumed for 9 min taxi-in (taken from the reserves). |
3.2.7 | Stage Distance is defined as the distance covered during climb, cruise and descent as described above. |
3.2.8 | At the end of approach and landing, an amount of 10,070 lb of fuel will remain in the tanks. This represents the estimated fuel required for: |
3.3.1 | The departure airport conditions (assumed representative of DFW runway 18L) are as defined below: |
3.3.2 | An allowance of 420 lb of fuel is assumed for 13 min APU, engine start and 14 min taxi-out. |
3.3.3 | An allowance of 490 lb of fuel is assumed for take-off and initial climb to 1,500 ft pressure altitude above departure airport with acceleration to climb speed. |
3.3.4 | Climb from 1,500 ft pressure altitude above departure airport to cruise altitude using maximum climb thrust, cruise at optimum eastbound flight levels at a fixed Mach number not less than 0.78 and descent to 1,500 ft pressure altitude above destination airport are conducted in ISA+5°C conditions. Climb and descent speeds below 10,000 ft shall be 250 knots CAS. |
3.3.5 | An allowance of 360 lb of fuel is assumed for 6 min approach and landing at destination airport. |
3.3.6 | An allowance of 200 lb of fuel is assumed for 9 min taxi-in (taken from the reserves). |
3.3.7 | Stage Distance is defined as the distance covered during climb, cruise and descent as described above. |
3.3.8 | At the end of approach and landing, an amount of 9,940 lb of fuel will remain in the tanks. This represents the estimated fuel required for: |
6.1 | The performance certification requirements for the Aircraft, except where otherwise stated, are as stated in Section 02 of the Standard Specification. |
6.2 | For the determination of FAR take-off and landing performance a hard level dry runway surface with no runway strength limitation, no line-up allowance, no obstacles, zero wind, atmosphere according to ISA, except as otherwise stated, and the use of speedbrakes, flaps, associated speeds, landing gear, centre of gravity position and engines in the conditions liable to provide the best results are assumed. |
6.3 | When establishing take-off performance no air is bled from the engines for cabin air conditioning or anti-icing. |
6.4 | Climb, cruise, descent and holding performance elements of the Performance Guarantees include allowances for normal electrical load and for normal engine air bleed and power extraction associated with maximum cabin differential pressure as defined in the Standard Specification. Cabin air conditioning management during performance demonstration as described in Clause 7.3 below will be such as to optimize the Aircraft performance while meeting the minimum air conditioning requirements defined above. Unless otherwise stated no air is bled from the engines for anti-icing. |
6.5 | Where applicable the Performance Guarantees assume the use of an approved fuel with a density of 6.7 lb/USG and a Lower Heating Value of 18,590 BTU/lb. |
7.1 | Compliance with the Performance Guarantees shall be demonstrated using operating procedures and limitations in accordance with those defined by the Aviation Authority and by the Seller unless otherwise stated. |
7.2 | Compliance with the take-off, landing, one engine inoperative net ceiling and noise elements of the Performance Guarantees shall be demonstrated with reference to the approved Flight Manual. |
7.3 | Compliance with those parts of the Performance Guarantees defined in Clauses 2 and 3 above not covered by the requirements of the Aviation Authority shall be demonstrated by calculation based on data obtained during flight tests conducted on one (or more, at the Seller's discretion) A321neo aircraft of the same airframe/engine configuration as the Aircraft purchased by the Buyer and incorporated in the in-flight performance program and databases appropriate to the Aircraft. |
7.4 | Data derived from flight tests shall be adjusted as required using conventional methods of correction, interpolation or extrapolation in accordance with established aeronautical practices to show compliance with the Performance Guarantees. |
7.5 | Compliance with the Manufacturer's Weight Empty guarantee shall be demonstrated with reference to a weight compliance report. |
7.6 | The Seller undertakes to provide the Buyer with a report or reports demonstrating compliance with the Performance Guarantees at, or as soon as possible after, the Delivery of each Aircraft. |
8.1 | In the event of any change to any law, governmental regulation or requirement or interpretation thereof by the Aviation Authority made subsequent to the date of the Agreement (the "Change in Law"), and such a Change in Law affects the Aircraft configuration or performance or both, the Performance Guarantees shall be appropriately modified to reflect the effect of such change. |
8.2 | The Performance Guarantees apply to the Aircraft as described in the Performance Guarantees and may be adjusted in the event of: |
10.1 | Should an Aircraft fail to meet the Performance Guarantees specified in this Letter Agreement, the Seller shall use its reasonable endeavours to correct the deficiency to comply with the subject performance guarantee. |
10.2 | Should the Seller fail to develop and make available corrective means (including but not limited to kits, procedures, adjustment of design weights) of the above said deficiency, then the Seller shall for the affected Aircraft pay to the Buyer by way of liquidated damages subject to the Seller's maximum liability set forth hereunder on each anniversary date of the Delivery Date of the affected Aircraft for as long as the deficiency remains an amount of: |
10.2.1 | [***] based on the deficiency (expressed in percent) defined as the average of the deviations from the guaranteed values of the Specific Range and of the Mission Block Fuel guarantees (part of a percent to be prorated). |
10.2.2 | [***] based on the deficiency (expressed in pounds) of the Mission Payload guarantees. |
10.2.3 | [***] based on the deficiency (expressed in pounds) of the Manufacturer's Weight Empty guarantee. |
10.3 | In the event the Seller develops and makes available corrective means mentioned above the Seller shall pay to the Buyer the monthly prorated portion of the yearly liquidated damages due by the Seller on account of the year during which the corrective means are made available. |
10.4 | The Seller's maximum liability in respect of deficiency in performance of an Aircraft shall be limited to the payment of liquidated damages for a period [***] for that Aircraft, whichever occurs first. Payment of liquidated damages shall be deemed to settle all claims and remedies the Buyer would have against the Seller in respect of performance deficiencies. |
1. | [***] |
2. | [***] |
3. | [***] |
4. | [***] |
5. | ASSIGNMENT |
1. | [***] |
2 | ASSIGNMENT |
3. | MISCELLANEOUS |
5. | ASSIGNMENT |
6. | MISCELLANEOUS |
1 | [***] |
2 | [***] |
3 | ASSIGNMENT |
1 | DEFINITIONS |
2 | [***] |
3 | [***] |
4 | [***] |
5 | [***] |
6 | [***] |
7 | [***] |
8 | [***] |
9 | ASSIGNMENT |
10 | MISCELLANEOUS |
1 | [***] |
2 | ASSIGNMENT |
(i) | the Buyer is a corporation organized and existing in good standing under the laws of the State of Delaware and has the corporate power and authority to enter into and perform its obligations under this [***] Agreement; |
(ii) | neither the execution and delivery by the Buyer of this [***] Agreement, nor the consummation of any of the transactions by the Buyer contemplated thereby, nor the performance by the Buyer of the obligations thereunder, constitutes a breach of any agreement to which the Buyer is a party or by which its assets are bound; |
(iii) | this [***] Agreement has been duly authorized, executed and delivered by the Buyer and constitutes the legal, valid and binding obligation of the Buyer enforceable against the Buyer in accordance with its terms. |
(i) | the Seller is organized and existing in good standing under the laws of the Republic of France and has the corporate power and authority to enter into and perform its obligations under the [***] Agreement; |
(ii) | neither the execution and delivery by the Seller of this [***] Agreement, nor the consummation of any of the transactions by the Seller contemplated thereby, nor the performance by the Seller of the obligations thereunder, constitutes a breach of any agreement to which the Seller is a party or by which its assets are bound; |
(iii) | this [***] Agreement has been duly authorized, executed and delivered by the Seller and constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms. |
IAE INTERNATIONAL AERO ENGINES AG | a joint stock company organized and existing under the laws of Switzerland, with a place of business at 400 Main Street, M/S 121-10, East Hartford, Connecticut 06108, USA, (hereinafter called "IAE") and | ||||
SPIRIT AIRLINES, INC. | a corporation organized and existing under the laws of Delaware, whose principal place of business is at 2800 Executive Way, Miramar, Florida 33025 (hereinafter called "Spirit"). |
A. | As of the date hereof, (i) Spirit has acquired or has firmly ordered an aggregate of forty (40) new Airbus A320 family aircraft, all powered by, or to be powered by, V2500-A5 engines, (ii) Spirit has acquired or firmly ordered an aggregate of eleven (11) new V2500-A5 spare engines from IAE all of which are or will be operated by Spirit and (iii) Spirit has the option to purchase four (4) additional new V2500-A5 spare engines from IAE |
B. | IAE and Spirit have entered into a V2500® General Terms of Sale dated March 1, 2005, as amended from time to time, including all side letters and amendments thereto, for the provision of V2500-A5 engines, modules, spare parts, tools, equipment, and product support services for the support and operation of certain V2500-A5 engines (the "2005 GTA"); |
C. | Spirit and IAE subsequently signed the V2500 Propulsion System and FHA Proposal dated October 27, 2006, as amended from time to time, including all side letters and amendments thereto, which outlines the financial support and support services for Spirit's then-incremental order for A320 family aircraft powered by V2500-A5 engines and order for V2500-A5 spare engines (the "2006 Proposal"); |
D. | IAE and Spirit have entered into a V-ServicesSM Fleet Hour Agreement dated October 1, 2013 for the provision of certain off-wing maintenance for the V2500-A5 engines operated by Spirit (the "Fleet Hour Agreement"); |
E. | IAE and Spirit hereby agree to amend and restate the 2005 GTA in its entirety to incorporate the provisions contained in the 2006 Proposal; and |
F. | IAE and Spirit now wish to agree upon terms whereby IAE will supply to Spirit V2500 engines, modules, spare parts, special tools, ground equipment, and product support services for the support and operation of the V2500 Engines. |
1. | Definitions |
1.1 | "Aircraft" shall mean the forty (40) new Airbus A320 family aircraft powered by new Engines firmly ordered (including nineteen (19) A320 family aircraft already delivered as of the date of the Contract) and being acquired by Spirit from Airbus for delivery as set forth in Exhibit B-1 to this Contract. |
1.2 | "Airbus" shall mean Airbus SAS, with its principal place of business at 1, Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France, together with its successors and assigns. |
1.3 | "Certification Authority" shall mean the United States Federal Aviation Administration. |
1.4 | "Change Order" shall have the meaning set forth in Section 2.3.1 hereto. |
1.5 | "Engine(s)" shall mean the IAE V2500 aero engine described in the applicable Specification(s). |
1.6 | "Initial Provisioning" shall mean the establishment by Spirit of an initial stock of Spare Parts, Support Equipment, and Vendor Parts. |
1.7 | "Initial Provisioning Data" shall mean information supplied by IAE to Spirit for Initial Provisioning purposes. |
1.8 | "Initial Provisioning Orders" shall mean orders for Spare Parts and Support Equipment for the purpose of Initial Provisioning. |
1.9 | "Lead Time" shall mean the period specified in the Spare Parts Catalog that represents the minimum time required between acceptance by IAE of an order by Spirit for Spare Parts and commencement of delivery of such Spare Parts. |
1.10 | "Service Bulletins" shall mean those service bulletins containing advice and instructions issued by IAE to Spirit from time to time in respect of Engines. |
1.11 | "Spare Engines" shall mean the Firm Spare Engines as defined in Section 2.2.1 and any additional new Spare Engines to be purchased in accordance with Section 2.2.2. |
1.12 | "Spare Parts" shall mean spare parts for Engines as identified in the Spare Parts Catalog, excluding the items listed in the Specification as being items of supply by Spirit. |
1.13 | "Spare Parts Catalog" shall mean the catalog published by IAE from time to time providing a description, Lead Time and price for Spare Parts available for purchase from IAE. |
1.14 | "Specification(s)" shall mean the IAE Engine Specification(s) set forth in Exhibit A to this Contract, as the same may be amended, supplemented and/or updated from time to time. |
1.15 | "Supplies" shall mean V2500 engines, Spare Parts, Vendor Parts, and Support Equipment. |
1.16 | "Support Equipment" shall mean tools, and all equipment (including handling, transportation and ground equipment) to be supplied pursuant to this Contract for use with the Aircraft and not for installation on the Aircraft. Support Equipment does not constitute Spare Parts. |
1.17 | "Vendor Parts" shall mean parts not manufactured by IAE, including accessories, described as "Vendor Parts" in Initial Provisioning Data. Vendor Parts do not constitute Spare Parts. |
2. | Installed and Spare Engine Purchase Commitments |
2.1 | Agreement to Purchase Aircraft from Airbus |
2.2 | Agreement to Purchase Spare Engines from IAE |
2.2.1 | Spirit hereby places a firm order with IAE for the purchase of eleven (11) new spare Engines (including eight (8) new spare Engines that have already been delivered as of the date of the Contract) (the "Firm Spare Engines") for delivery according to the schedule set forth in Exhibit B-2 to this Contract, as the same may be amended, supplemented and/or updated from time to time. |
2.2.2 | Spirit, at its option, may also purchase and place up to four (4) additional new Spare Engines (the "Option Spare Engines") on firm order with IAE, provided that Spirit gives written notice to IAE at least [***] prior to the delivery date for each such Option Spare Engine as set forth in Exhibit B-2, as the same may be amended, supplemented and/or updated from time to time. IAE and Spirit shall promptly amend this Contract to revise Exhibit B-2 to reflect the firm order of Option Spare Engines from IAE. |
2.2.3 | Except as otherwise set forth in the following paragraph, Spirit agrees to purchase an Engine storage bag and transportation stand from IAE for delivery with each Spare Engine. The prices for such equipment are set forth in Exhibit B-2. |
2.3 | Type Approval and Changes in Specification |
2.3.1 | The Spare Engines will be manufactured to the standards set forth in the Specification. After the date of this Contract, the Spare Engines may be varied from the standards set forth in the Specification and other IAE manufacturing specifications from time to time by written change orders (each a "Change Order"), which shall set forth in detail: |
(a) | The changes to be made in the Spare Engines; and |
(b) | The effect (if any) of such changes on the Specification (including but not limited to performance and weight), on interchangeability of the Spare Engines in the airframe, on prices and on dates of delivery of the Spare Engines. |
2.3.2 | IAE may make any changes in the Spare Engines that do not adversely affect the Specification (including but not limited to performance and weight), interchangeability of the Spare Engines in the airframe, prices or dates of delivery of the Spare Engines. In the case of such permitted changes, a Change Order shall not be required or if issued shall not be binding until signed by IAE and Spirit. |
2.3.3 | At the time of delivery of the Spare Engines there is to be in existence an FAA-issued "Type Approval Certificate" for the Spare Engines in accordance with the provisions of the Specification. |
2.3.4 | The Specification has been drawn with a view to the requirements of the Certification Authority and the official interpretations of such requirements in existence at the date of this Contract (such requirements and interpretations being hereinafter referred to as "Current Rules"). Subject to Section 2.3.2 above, IAE and Spirit agree that they will execute an appropriate Change Order in respect of any change required to the Spare Engines to enable such Spare Engines to conform to the requirements of the Certification Authority and the official interpretations of such requirements in force at the date of delivery of such Spare Engines. |
2.3.5 | The price of any Change Order is to be paid by IAE in the case of changes required to conform to the Current Rules and by Spirit in any other case. |
2.4 | Inspection and Acceptance |
2.4.1 | IAE shall ensure that Spare Engines conform to the Specification through the maintenance of procedures, systems and records approved by the Certification Authority. An FAA-issued "Authorized Release Certificate" (FAA Form 8130-3, Airworthiness Approval Tag) or "Certificate of Conformity" (as the case may be) will be issued and signed by personnel authorized for such purposes. |
2.4.2 | Upon delivery pursuant to Section 2.5.1 below and the issue of an "Authorized Release Certificate" (FAA Form 8130-3, Airworthiness Approval Tag) or a Certificate of Conformity pursuant to Section 2.4.1 above and IAE's representation that the Engine storage bag and transportation stand, if purchased, conforms to the applicable purchase order, Spirit shall be deemed to have accepted the Spare Engines (and Engine storage bag and transportation stand, if purchased from IAE), and that the Spare Engines conform to the Specification. Spirit's acceptance will, however, in no way prejudice its valid warranties and support rights under this Contract or the Fleet Hour Agreement. IAE shall, upon written request from Spirit and subject to the permission of the appropriate governmental authorities, arrange for Spirit to have reasonable access to the appropriate premises in order to examine the Spare Engines prior to the issue of conformance documentation and to witness Engine acceptance tests. |
2.4.3 | If Spirit refuses, is unable to accept, or otherwise hinders delivery of any Spare Engine that satisfies the requirements set forth herein, Spirit shall nevertheless pay or cause IAE to be paid therefore as if, for the purposes of payment only, the Spare Engines had been delivered. |
2.4.4 | In any of the cases specified in Section 2.4.3 above, Spirit shall also pay to IAE such reasonable sum as IAE shall require in respect of storage, maintenance and insurance of those Spare Engines. |
2.5 | Delivery, Shipping, Title and Risk of Loss or Damage |
2.5.1 | Provided Spirit has made payment in accordance with Section 2.7 below, IAE will deliver the Spare Engines (and Engine storage bag and transportation stand, if purchased from IAE), at its option, either Ex-Works (INCOTERMS 2000) Connecticut, United States of America or Ex-Works (INCOTERMS 2000) Dahlewitz, Germany, in accordance with the delivery schedule set out in Exhibit B-2 to this Contract. |
2.5.2 | Upon such delivery, title to and risk of loss of or damage to the Spare Engines (and Engine storage bag and transportation stand, if purchased from IAE) shall pass to Spirit. |
2.5.3 | Spirit will notify IAE at least thirty (30) days before the scheduled time for delivery of the Spare Engines of its instructions as to the marking and shipping of the Spare Engines. |
2.6 | Price |
2.7 | Payment |
2.7.1 | Spirit will make payment for Spare Engines (and Engine storage bag and transportation stand, if purchased from IAE) in United States Dollars as follows: |
(a) | [***] before the scheduled delivery of each of the Spare Engines, Spirit shall pay to IAE a non-refundable payment of [***] of the Estimated Purchase Price of such Spare Engine. |
(b) | [***] before the scheduled delivery of each of the Spare Engines, Spirit shall pay to IAE a non-refundable payment of [***] of the Estimated Purchase Price of such Spare Engine. |
(c) | Immediately prior to the delivery of each of the Spare Engines, Spirit shall pay to IAE the balance of the escalated purchase price of such Spare Engine, plus the purchase price of the Engine storage bag and transportation stand, if purchased from IAE. |
2.7.2 | IAE shall have the right to require Spirit to make additional payments in respect of price changes arising from the provisions of Section 2.3 above on a similar basis to that specified in Section 2.7.1 above. |
2.7.3 | Spirit shall pay the full amount of payments falling due under this Section 2.7, without any withholding or deduction whatsoever. |
2.7.4 | All payments under this Section 2.7 shall be made by wire transfer and shall be deposited not later than the due date of payment with: |
2.7.5 | For the purpose of this Section 2.7 "payment" shall only be deemed to have been made to the extent cleared or good value funds are received in the numbered IAE bank account specified in Section 2.7.4 above or as otherwise notified to Spirit in writing by IAE. |
2.7.6 | If Spirit fails to make any payment pursuant to this Section 2 on or before the date when such payment is due, then, without prejudice to any of IAE's other rights, IAE will (a) be entitled to charge interest on the overdue amount, at the rate equal to the greater of [***] per annum or the New York Citibank prime rate plus [***] per annum, from the date such payment was due to the date such payment is made and (b) have the right (but not the obligation) to suspend work on the manufacture of Spare Engines pending the remedy of such failure and to reschedule the date of delivery of such Spare Engines following the cure of such failure. Notwithstanding the foregoing, Spirit shall not be liable for interest in respect of any overdue amount which is being contested in good faith. |
2.7.7 | For the purpose of this Section 2.7, the "Estimated Purchase Price" of any of the Spare Engines shall be calculated in accordance with the following formula: |
3. | Spare Parts Provisions |
3.1 | Intent and Term |
3.1.1 | For as long as Spirit owns and operates one or more Aircraft in regular commercial service and is not in breach of any material obligation to IAE under this Contract, IAE shall use commercially reasonable efforts to make available adequate supplies of Spare Parts for sale to Spirit under this Contract. In consideration thereof, except as otherwise provided under Section 3.1.2 below, Spirit shall buy from IAE, and IAE shall sell to Spirit, all of Spirit's requirements of the following: |
(a) | Spare Parts and Support Equipment necessary to support Spirit's operation of the Aircraft; and |
(b) | Vendor Parts for which direct supply arrangements between the manufacturers of such Vendor Parts and Spirit cannot be reasonably established. Spirit shall notify IAE in writing not less than the greater of (i) the lead time of the vendor as specified in the respective vendor manual or (ii) three (3) months before scheduled delivery requested by Spirit that Spirit intends to purchase such Vendor Parts from IAE. |
3.1.2 | Purchase by Spirit from Others |
3.2 | ATA Standards |
3.3 | Stocking of Spare Parts |
3.4 | Lead Times |
3.4.1 | IAE shall endeavor to deliver replenishment Spare Parts within the Lead Time specified in the IAE Spare Parts Catalog, except for certain major Spare Parts that are designated in the Spare Parts Catalog as being available at prices and lead times to be quoted upon request. Support Equipment and Vendor Parts are available at prices and lead times to be quoted upon request. |
3.4.2 | If any order for replenishment Spare Parts shall call for a quantity materially in excess of Spirit's normal requirements, IAE shall notify Spirit and may request a special delivery schedule. If Spirit confirms that the full quantity ordered is required, delivery of the order shall be effected at delivery dates mutually acceptable to IAE and Spirit and the Lead Times provided by this Section shall not apply. |
3.4.3 | In an emergency, IAE shall use its reasonable efforts to deliver all Spare Parts within the time limits specified by Spirit. IAE will provide notice of the action to be taken on such orders within the following time periods from IAE's receipt of such notice and based on the type of order: |
(a) | AOG (Aircraft on Ground) orders - within 4 hours; |
(b) | Critical (imminent AOG or work stoppage) - within 24 hours; |
(c) | Expedited (less than published or quoted lead time) - within 7 days. |
3.5 | Ordering Procedure |
3.5.1 | Orders for Spare Parts and Support Equipment may be placed by Spirit from time to time on an as-needed basis. Spirit shall give IAE as much notice as practicable of any change in its operation, including, but not limited to, changes in maintenance or overhaul arrangements affecting its requirements of Spare Parts, Support Equipment and including Vendor Parts. |
3.5.2 | IAE shall promptly acknowledge receipt of each order for Spare Parts in accordance with ATA Specification 2000 procedure. Unless qualified, such acknowledgment, subject to variation in accordance with Section 3.4.2 above, shall constitute an acceptance of the order under the terms of this Contract. |
3.5.3 | Standard package quantities shall be delivered and packed in accordance with the Spare Parts Catalog. |
3.6.1 | IAE shall be entitled to make modifications or changes to the Spare Parts ordered by Spirit hereunder provided that the modification has received the approval of the Certification Authority and modified Spare Parts shall be substituted for Spare Parts ordered. IAE shall promptly inform Spirit by means of Service Bulletins when such modified Spare Parts (or Spare Parts introduced by a repair scheme) become available for supply hereunder. Notification of such availability shall be given to Spirit before delivery. |
3.6.2 | Modified Spare Parts shall be substituted for Spare Parts ordered unless the modifications stated in Service Bulletins in the recommended or optional category are considered by Spirit to be unacceptable and Spirit so states in writing to IAE within ninety (90) days of the transmittal date of the applicable Service Bulletin, in which case Spirit shall be entitled to place a single order for Spirit's anticipated total requirement of pre-modified Spare Parts, at a price and delivery schedule to be agreed. |
3.6.3 | Unless Spirit notifies IAE in writing under the provisions of Section 3.6.2 above, IAE may supply at the expense of Spirit a modification of any Spare Part ordered (including any additional Spare Part needed to ensure interchangeability), provided that the modification has received the approval of the Certification Authority. The delivery of such Spare Parts shall begin on dates indicated by the applicable Service Bulletin. The delivery schedule shall be agreed at the time when orders for modifications are accepted by IAE. |
3.7 | Inspection |
3.7.1 | Conformance to the Specification of Spare Parts purchased hereunder will be assured by IAE through the maintenance of procedures, systems and records approved by the Certification Authority. Conformance documentation will be issued by IAE to Spirit and signed by IAE personnel authorized for such purpose. |
3.7.2 | Conformance of Support Equipment and Vendor Parts purchased pursuant to this Section 3 will be assured by IAE conformance documentation and/or Vendor conformance documentation, as applicable. |
3.7.3 | Upon the issuance of conformance documentation in accordance with Sections 3.7.1 or 3.7.2 above and delivery in accordance with Section 3.8.1 below, Spirit shall be deemed to have accepted the applicable Spare Parts, Support Equipment, and Vendor Parts, and that they conform to the applicable specification without prejudice to any of Spirit's warranty and support rights under this Contract or any other right of Spirit under applicable law. |
3.8 | Delivery and Packing |
3.8.1 | IAE shall deliver Spare Parts, Support Equipment and Vendor Parts if such parts are purchased from IAE pursuant to this Section 3, Ex-Works (INCOTERMS 2000) the point of manufacture. Shipping documents and invoices shall be in accordance with ATA Specification 2000. |
3.8.2 | Upon such delivery as described in Section 3.8.1, title to and risk of loss of or damage to the Spare Parts, Support Equipment, and Vendor Parts shall pass to Spirit. |
3.8.3 | In accordance with ATA Specification 2000 requirements, Spirit shall advise IAE at time of order of its instructions as to the marking and shipping of the Spare Parts, Support Equipment and Vendor Parts. |
3.8.4 | The packaging of Spare Parts, Support Equipment, and Vendor Parts shall be in accordance with ATA Specification 300 Category 2 standard, unless deviations are otherwise agreed pursuant to Section 3.2 and shall be free of charge to Spirit. Category 1 standard packaging, if required by Spirit, shall be paid for by Spirit. |
3.9 | Prices |
3.9.1 | Prices of all Spare Parts, Support Equipment, and Vendor Parts shall be quoted in U.S. Dollars, in the Spare Parts Price Catalog, or Initial Provisioning Data, or in individual quotations. Such prices shall represent net unit prices, Ex-Works (INCOTERMS 2000), IAE point of manufacture according to Section 3.8.1 above. |
3.9.2 | Prices applicable to each order placed by Spirit hereunder shall be the prices in effect at the time of such order according to the terms of the Spare Parts Price Catalog. |
3.9.3 | IAE may from time to time adjust its prices for Spare Parts and Support Equipment upon not less than ninety (90) days prior written notice to Spirit. Any individual price errors in the calculation of prices may be corrected in good faith without advance notice to Spirit. |
3.9.4 | On request by Spirit, prices of Spare Parts, Support Equipment, or other materials not included in the Spare Parts Price Catalog shall be quoted within a reasonable time by IAE. |
3.10 | Payment |
3.10.1 | Payment for all purchases of Spare Parts, Support Equipment, and Vendor Parts under this Section 3 shall be made by Spirit to IAE [***]. Payment for any other invoices arising under this Contract shall be made by Spirit to IAE [***]. |
3.10.2 | Spirit undertakes that IAE shall receive payment in U.S. Dollars of the full amount of payments falling due under this Section 3.10, without any withholding or deduction whatsoever. |
3.10.3 | All payments under this Section 3.10 shall be made by wire transfer to, and shall be deposited not later than the due date of payment with: |
3.10.4 | For the purpose of this Section 3.10, payment shall only be deemed to have been made to the extent immediately available funds are received in the account specified in sub-Section 3.10.3 above or as otherwise notified by IAE in accordance with the terms of this Contract. |
3.10.5 | Notwithstanding Section 3.10.1 above, payments for all purchases of Spare Parts, Support Equipment and Vendor Parts shall be due from Spirit upon delivery, or at IAE's option prior to delivery of such items upon the occurrence of any of the following events: (a) a receiver or trustee is appointed for any of Spirit's property, or (b) Spirit is adjudicated or voluntarily becomes a bankrupt under any bankruptcy or winding up laws or other similar legislation, or (c) Spirit becomes insolvent or makes an assignment for the benefit of creditors, or (d) Spirit fails to make payment to IAE in accordance with any of Spirit's material obligations to IAE under this Contract or any other agreement with IAE, or (e) is in material default under any section of this Contract after receipt of written notice of such default and the expiration of any applicable cure period in respect thereof. |
3.10.6 | If Spirit fails to make any payment for any Spare Parts, Support Equipment, or Vendor Parts on or before the date when such payment is due, then, without prejudice to any other rights set forth herein or under applicable law, IAE will be entitled to charge interest on the overdue amount, at the rate of the greater of [***] or the New York Citibank prime rate plus [***] per annum, from the date such payment was due to the date such payment is made. Notwithstanding the foregoing, Spirit shall not be liable for interest in respect of any overdue amount which is being contested in good faith. |
3.11 | Conflict |
4. | Warranties, Guarantees and Liabilities |
4.1 | IAE warrants to Spirit that, at the time of delivery, the Supplies sold hereunder will be free of defects in material and manufacture, and will conform substantially to applicable specifications and the rules and regulations of the Certificating Authority. IAE's liability and |
4.2 | In addition, IAE grants and Spirit accepts the following (all as set forth in Exhibit D, the "Warranties"): |
4.3 | IAE also grants and Spirit accepts the following (all as set forth in Exhibit E, the "Guarantees"): |
4.4 | The parties agree that the Warranties shall apply to any equipment that falls within the type of equipment covered by those Warranties, which are manufactured, supplied or inspected by IAE howsoever and whenever (whether before, on or after the date first above written) acquired by Spirit from whatsoever source including but not limited to any V2500 aero engines and any associated equipment therefor, and any parts for such engines and associated equipment that form part of any aircraft acquired from the manufacturer. |
4.5 | [***] It is not the intent, however, to duplicate benefits or remedies provided to Spirit by IAE or another source (e.g., another equipment manufacturer or lessor) as a result of the same event or cause. Therefore, notwithstanding the terms of the Warranties and Guarantees, Spirit agrees that it shall not be eligible to receive benefits or remedies from IAE if it stands to receive or has received duplicate benefits or remedies from IAE or another source as a result of the same event or cause. Furthermore, in no event shall IAE be required to provide duplicate benefits to Spirit and any other party (such as a leasing company) as a result of the same event or cause. |
4.6 | IAE and Spirit agree that the following provisions shall apply to each of the Guarantees, unless otherwise expressly set forth therein. |
4.6.1 | Definitions and General Conditions |
4.6.2 | Specific Conditions |
(a) | The rates and remedies in the Guarantees are predicated upon Spirit operating its Aircraft powered by Engines in accordance with the following operating conditions: |
(i) | An annual average flight cycle of: [***] hours for V2524-A5 powered Aircraft, [***] hours for V2527-A5 powered Aircraft, and [***] hours |
(ii) | An annual average utilization of [***] hours per V2524-A5 powered Aircraft, [***] hours per V2527-A5 powered Aircraft, and [***] hours per V2533-A5 powered Aircraft; |
(iii) | An average engine thrust derate of: [***] for V2524-A5 powered Aircraft, [***] for V2527-A5 powered Aircraft, and [***] for V2533-A5 powered Aircraft, all relative to the name plate thrust rating; |
(iv) | An average ambient temperature for take-off no greater than: [***] for V2524-A5 powered Aircraft, [***] for V2527-A5 powered Aircraft, and [***] for V2533-A5 powered Aircraft; |
(v) | Spirit's main base will be located at Fort Lauderdale, Florida, USA; |
(vi) | Spirit acquiring all of the Aircraft and Firm Spare Engines as set forth in Exhibit B-1 and Exhibit B-2, as amended, supplemented and/or updated from time to time; |
(vii) | Spirit maintaining a minimum ratio of [***] Spare Engines to installed Engines for its Aircraft fleet; |
(viii) | Spirit owning, operating, and maintaining the Aircraft and Engines in regular and frequent airline operation for the duration of the Guarantee period(s), in accordance with Airbus', IAE's, and other applicable OEM's technical manuals and the MMP (including Engine rebuild requirements); |
(ix) | [***]; and |
(x) | Spirit acquiring from IAE or other sources sufficient components, Spare Parts, and spare Engines at the levels mutually agreed by IAE and Spirit to maintain proper support of the Engines and Aircraft. |
(b) | Should any of the above operating conditions not be met or if Spirit takes Option Aircraft or Option Spare Engines, IAE, acting in good faith and in consultation with Spirit, may make reasonable and appropriate adjustments to the Guarantees, with appropriate retroactive application, to address any deviations from such operating conditions. |
4.7 | SPIRIT ACCEPTS THAT THE WARRANTIES AND GUARANTEES GRANTED TO SPIRIT UNDER SECTIONS 4.1 THROUGH 4.4 ABOVE, TOGETHER WITH THE EXPRESS REMEDIES PROVIDED TO SPIRIT IN RESPECT OF THE SUPPLIES IN ACCORDANCE WITH THIS CONTRACT, ARE EXCLUSIVE AND ARE GIVEN BY IAE IN LIEU OF (A) ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN STATUTE, CONTRACT, TORT OR STRICT LIABILITY AGAINST OEM OR |
4.8 | [***] |
4.9 | [***] |
4.10 | [***] |
4.11 | IAE and Spirit agree that credits issued to Spirit's account with IAE pursuant to any of the Warranties or Guarantees may be utilized for the purposes identified in the applicable Warranty or Guarantee for up to [***] after the date of issuance. Within [***] after such date, Spirit may request in writing that the period for such use be extended by IAE for up to an additional [***] period, which request for extension IAE shall not unreasonably deny. After the expiration of the applicable time period, such credits shall expire. |
5. | Product Support Services |
5.1 | IAE will make available to Spirit the Product Support Services described in Exhibit C to this Contract. Except when identified in such Exhibit C as being at additional cost or as requiring separate contractual arrangements, such Product Support Services shall be supplied at no additional charge to Spirit. IAE may delegate the performance of product support services to an affiliated company or any of IAE's shareholders. |
5.2 | Spirit will provide to any IAE customer support representative(s) working at its facility, free of charge: |
5.2.1 | reasonable, secure office accommodation including furniture and office equipment and |
5.2.2 | access to telephone, facsimile and secretarial services and |
5.2.3 | access to such first-aid and emergency assistance as is customarily provided to Spirit's own employees and |
5.2.4 | reasonable airfare, accommodations, and subsistence during any period in which the customer support representative(s) is required by Spirit to travel away from such customer support representative(s)' normal location at Spirit. |
6. | Miscellaneous |
6.1.1 | If IAE is hindered or prevented from performing any obligation hereunder including but not limited to delivering any of the Supplies within the time for delivery specified in this Contract (as such time may be extended pursuant to the provisions of this Contract) by reason of: |
(a) | any cause beyond the reasonable control of IAE, or |
(b) | fires, industrial disputes or introduction of essential modifications required by the Certification Authority, or |
(c) | compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it proves to be invalid, except to the extent that the delay is caused by IAE's failure to act in conformity with applicable deadlines set forth in such governmental regulation or order; |
6.1.2 | If, by reason of any of the Excusable Delays embraced by Section 6.1.1 above, IAE is hindered or prevented from delivering any goods (that are the same as and include the Supplies) to purchasers (including Spirit) then IAE shall have the right to allocate in good faith such goods, as they become available, at its own discretion among all such purchasers and IAE shall not be under any liability whatsoever to Spirit for delay in delivery to Spirit resulting from such allocation by IAE and the time for delivery shall be extended by a period equal to the delay resulting from such allocation by IAE. [***] |
6.1.3 | [***] |
6.1.4 | The right of Spirit to claim damages shall be conditional upon Spirit (i) notifying IAE of the its claim in writing within [***] from the Claim Start Date, and (ii) submitting a written claim therefor within [***] from the Claim Start Date. |
6.1.5 | Should IAE delay performance of any obligation for a reason other than an Excusable Delay hereunder including but not limited to delivery of any item of the Supplies beyond [***] from the time for delivery specified in this Contract (as such time may be extended pursuant to the provisions of this Contract) then, in addition to the right of Spirit under Section 6.1.3, Spirit shall be entitled to terminate the order with respect to the affected item on giving IAE notice in writing. Upon receipt of such notice IAE shall be free from any obligation in respect of such item except that IAE shall refund to Spirit any deposits made in respect of the purchase price of such item of the Supplies. |
6.2 | Patents |
6.2.1 | IAE shall, subject to the conditions set out in this Section and as the sole liability of IAE in respect of any claims for infringement of industrial property rights, indemnify and hold Spirit harmless from and against any damages, costs and expenses including legal costs resulting from claim that the use of any of the Supplies by Spirit within any country to which at the date of such claim the benefits of Article 27 of the Convention on International Civil Aviation of 7th December 1944 (The Chicago Convention) apply, infringes any patent, design, or model duly granted or registered provided, however, that IAE shall not be liable to Spirit for any consequential damage or any loss of use of the Supplies or of the Aircraft in which the Supplies may be incorporated arising as a result directly or indirectly of any such claim. |
6.2.2 | Spirit will, as soon as reasonably practicable give notice in writing to IAE of any such claim whereupon IAE shall have the right at its own expense to assume the defense of or to dispose of or to settle such claim in its sole reasonable discretion and Spirit will give IAE all reasonable assistance and will not by any act or omission do anything that may directly or indirectly prejudice IAE in this connection, provided that IAE shall not agree to any settlement pursuant to which any fault is attributed to Spirit, without the prior written consent of Spirit. |
6.2.3 | IAE shall have the right to substitute for any allegedly infringing Supplies substantially equivalent non-infringing supplies. |
6.2.4 | Should Spirit be prevented from using any of the Supplies due to a claim of infringement of property rights by valid judgment or by settlement between Spirit, IAE and the claimant IAE will, at its expense as soon as possible but in no event more than ninety (90) days from the date of entry of such judgment or settlement either: (a) obtain for Spirit the right to use the respective Supply or Supplies free of charge or (b) replace the respective Supply or Supplies with a substantially equivalent non-infringing substitute, if available. |
6.2.5 | The indemnity contained in Section 6.2.1 above shall not apply to claims for infringement in respect of (i) Supplies manufactured to the specific design instructions of Spirit; (ii) Supplies not of IAE design (but IAE shall in the event of any claim for infringement pass on to Spirit so far as it has the right to do so the benefits of any indemnity given to IAE by the designer, manufacturer or supplier of such Supplies); (iii) the manner or method in which any of the Supplies is installed in the Aircraft; or (iv) any combination of any of the Supplies with any item or items other than Supplies. |
6.3 | (RESERVED) |
6.4 | Non-Disclosure and Non-Use |
6.4.1 | The terms and conditions of this Contract and any technical information provided in connection with it are confidential and proprietary to IAE and Spirit. Each Party agrees to: (a) limit disclosures of such confidential information only to persons who have a need to know within their organizations; (b) keep such information confidential; and (c) not disclose to any third party other than (i) as required by applicable law or legal process; (ii) in connection with the disclosure requirements of any applicable government authority or exchange; (iii) to its legal, financial, tax or other advisors who are bound by an obligation of confidentiality or to the |
6.5 | Taxes |
6.5.1 | Subject to Section 6.5.2 below, IAE shall pay all imposts, duties, fees, taxes and other like charges levied by any tax authority or any agency thereof in connection with the Supplies prior to their delivery. |
6.5.2 | All amounts stated to be payable by Spirit pursuant to this Contract exclude any value added tax, sales tax or similar such tax. In the event that the supply of goods or services under this Contract is chargeable to any value added tax, sales tax or similar such tax will be borne by Spirit. To ensure so far as possible that Spirit is not charged with European Community value added tax ("VAT"), Spirit will within 30 days of signature hereof, inform IAE of its VAT Code (if any) for inclusion on IAE's invoices. |
6.5.3 | Spirit shall pay all other imposts, duties, fees, taxes and other like charges by whomsoever levied. |
6.5.4 | Notwithstanding the foregoing, Spirit shall have no liability to IAE for any tax or taxes levied on IAE in connection with its gross income, or any franchise, turn-over or other similar tax or any tax levied on IAE relating to its business activities generally and not specifically arising out of or in connection with the transactions contemplated hereby. |
6.5.5 | In addition to the foregoing, IAE agrees to cooperate with Spirit in order to minimize the impact of any tax liability arising from the transactions hereunder. |
6.6 | Amendment |
6.8 | Exhibits |
6.9 | Headings |
6.10 | Governing Law and Forum |
6.11 | Compliance with All Applicable Laws and Regulations |
6.11.1 | Export/Import Spirit agrees that it will not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any IAE goods, software, technical data (including products derived from or based on such technical data), or services received directly or indirectly from IAE to any Prohibited Party without obtaining prior authorization from the relevant government authorities as required pursuant to Export Laws. Failure to do so will result in IAE invoking its rights to terminate this Contract per the provisions of Sections 6.15 and 6.16 below. |
6.11.2 | "Prohibited Parties" means, collectively, those countries, and persons to whom the sale, export, re-export, transfer, diversion or other disposition of any IAE goods, software, technical data or services is prohibited by the applicable export laws and related regulations of the United States, German, British, Japanese, or European Union Governments. |
6.11.3 | Other Laws and Regulations Each Party agrees that it will not, by act or omission, violate any applicable law or regulation of the United States or any political subdivision thereof where the violation thereof would result in the other Party being deemed to be in violation of such law or regulation or would otherwise result in a criminal or an un-indemnified civil penalty on the part of such other Party. |
6.12 | Notices |
6.13 | Exclusion of Other Provisions and Previous Understandings |
6.13.1 | This Contract contains the only provisions governing the sale and purchase of the Supplies and shall apply to the exclusion of any prior provisions on or attached to or otherwise forming part of any order form of Spirit, or any acknowledgment or acceptance by IAE, or of any other document that may be issued by either party relating to the sale and purchase of the Supplies. |
6.13.2 | The parties agree that neither of them have placed any reliance whatsoever on any representations, agreements, statements or understandings made prior to the signature of this Contract, whether orally or in writing, relating to the Supplies, other than those expressly incorporated in this Contract, which has been negotiated on the basis that its provisions represent their entire agreement relating to the Supplies and shall supersede all such representations, agreements, statements and understandings. |
6.14 | Conditions Precedent |
6.14.1 | A continuing event of default (taking into account any applicable grace period) by Spirit in (a) any payment due under the Contract (including any exhibits and letter agreements thereto), or [***]; or |
6.14.2 | Any event that is a Termination Event or would be a Termination Event, but for lapse of time, shall have occurred. |
6.15 | Termination Events |
6.15.1 | Any of the following shall constitute a "Termination Event" under this Contract: |
(a) | Spirit commences any case, proceeding or other action with respect to Spirit or its property in any jurisdiction relating to bankruptcy, insolvency, reorganization, dissolution, liquidation, winding-up, or relief from, or with respect to, or readjustment of, debts or obligations; or |
(b) | Spirit seeks the appointment of a receiver, trustee, custodian or other similar official for Spirit for all or substantially all of its assets, or Spirit makes a general assignment for the benefit of its creditors; or |
(c) | Spirit otherwise becomes the object of any case, proceeding or action of the type referred to in the preceding Sections 6.15.1(a) or 6.15.1(b) that remains unstayed, undismissed or undischarged for a period of sixty (60) days; or |
(d) | An action is commenced against Spirit seeking issuance of a warrant of attachment, execution, distraint or similar process against all or substantially all of its assets that remains unstayed, undismissed or undischarged for a period of sixty (60) days; or |
(e) | A continuing event of default (taking into account any applicable grace period) by Spirit on any payment of principal or interest on any indebtedness hereunder or in the payment of any guarantee obligation hereunder [***]. |
(f) | Failure to take the Aircraft and Spare Engines in accordance with the delivery schedule set forth in Exhibit B, as amended, supplemented or modified from time to time. |
6.15.2 | In the event of the occurrence of a Termination Event, Spirit shall be deemed to be in material breach of this Contract, and IAE shall at its option have the right to resort to any remedy under applicable law, including, without limitation, the right by written notice, effective immediately, to terminate this Contract; provided that, no such notice need be delivered, and this Contract shall automatically terminate upon the occurrence of a Termination Event specified in Section 6.15.1(a), 6.15.1(b), or 6.15.1(c) |
6.15.3 | Spirit shall have the option, at its sole discretion, to terminate this Contract in whole or in part, upon the occurrence of any of the following events: |
(a) | IAE commences any case, proceeding or other action with respect to IAE or its property in any jurisdiction relating to bankruptcy, insolvency, reorganization, dissolution, liquidation, winding-up, or relief from, or with respect to, or readjustment of, debt or obligations; |
(b) | IAE seeks the appointment of a receiver, trustee, custodian, or other similar official for IAE for all or substantially all of its assets, or IAE makes a general assignment for the benefit of its creditors; |
(c) | IAE otherwise becomes the object of any case, proceeding or action of the type referred to in the preceding clauses (a) or (b) which remains unstayed, undismissed or undischarged for a period of sixty (60) days; |
(d) | An action is commenced against IAE seeking issuance of a warrant of attachment, execution, distraint or similar process against all or substantially all of its assets which remains unstayed, undismissed, or undischarged for a period of sixty (60) days; |
(e) | A continuing event of default (taking into account any applicable grace period) by IAE on any payment of principal or interest on any indebtedness hereunder or in the payment of any guarantee obligation hereunder [***]. |
Agreed to and accepted on behalf of: IAE International Aero Engines AG | Agreed to and accepted on behalf of: Spirit Airlines, Inc. | |||||||||||||
By: | /s/ Rick Deurloo | By: | /s/ Charles A. Rue | |||||||||||
Name: | Rick Deurloo | Name: | Charles A. Rue | |||||||||||
Title: | SVP Sales | Title: | VP Supply Chain | |||||||||||
In the presence of: | In the presence of: | |||||||||||||
By: | /s/ Daniel Kirk | By: | /s/ Edward Christie | |||||||||||
Name: | Daniel Kirk | Name: | Edward Christie | |||||||||||
Title: | Sales Director | Title: | SVP & CFO |
Aircraft No. | Aircraft Type | Engine Model | Scheduled Delivery Date | MSN | ESN 1 | ESN 2 | ||||||||||||||
1 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
2 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
3 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
4 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
5 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
6 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
7 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
8 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
9 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
10 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
11 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
12 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
13 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
14 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
15 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
16 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
17 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
18 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
19 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
20 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
21 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
22 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
23 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
24 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
25 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
26 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
27 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
28 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
29 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
30 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
31 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
32 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
33 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
34 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
35 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
36 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
37 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
38 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
39 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
40 | [***] | [***] | [***] | [***] | [***] | [***] |
Spare Engines | No. | Base Price (Jan-06$) | Engine Model | Scheduled Delivery Date | ESN | ||||||||||||
Firm Spare Engines | 1 | [***] | [***] | [***] | [***] | ||||||||||||
2 | [***] | [***] | [***] | [***] | |||||||||||||
3 | [***] | [***] | [***] | [***] | |||||||||||||
4 | [***] | [***] | [***] | [***] | |||||||||||||
5 | [***] | [***] | [***] | [***] | |||||||||||||
6 | [***] | [***] | [***] | [***] | |||||||||||||
7 | [***] | [***] | [***] | [***] | |||||||||||||
8 | [***] | [***] | [***] | [***] | |||||||||||||
9 | [***] | [***] | [***] | [***] | |||||||||||||
10 | [***] | [***] | [***] | [***] | |||||||||||||
11 | [***] | [***] | [***] | [***] | |||||||||||||
Option Spare Engines | 1 | [***] | [***] | [***] | [***] | ||||||||||||
2 | [***] | [***] | [***] | [***] | |||||||||||||
3 | [***] | [***] | [***] | [***] | |||||||||||||
4 | [***] | [***] | [***] | [***] |
Equipment | Base Price (Jan-06 US$) | ||||
Engine Storage Bag | [***] | ||||
Engine Transportation Stand | [***] |
1. | Any unit base price or other sum expressed to be subject to escalation from the Base Month (as defined below) to month of delivery or other date of determination in accordance with the IAE Escalation Formula will be subject to escalation in accordance with the following formula: |
• | Readiness Program and planning prior to EIS |
• | Technical recommendations and information. |
• | Engine Maintenance Management Plans |
• | Refurbishment, Modification and Conversion program planning assistance. |
• | Coordination of customer repair, maintenance and logistics requirements with the appropriate Product Support functional groups. |
• | Assist with critical engine warranty/service policy claims. |
• | 24 Hour Support |
• | Maintenance Action Recommendations |
• | Daily Reporting on Engine Technical Situations |
• | On-The-Job Training |
• | Service Policy Preparation Assistance |
• | Prompt Communication with IAE |
• | Technical Training at Purpose Built Facilities |
• | On-site Technical Training |
• | Technical Training Consulting Service |
• | Training Aids and Materials |
• | Engine construction features internal and external hardware. |
• | Engine systems operation, major components accessibility for removal/replacement. |
• | Operational procedures |
• | Performance characteristics |
• | Maintenance concepts, repair and replacement requirements and special tooling. |
• | Engine Description |
• | Systems Operation |
• | Applied Performance |
• | Ground Operations |
• | Troubleshooting Procedures |
• | Practical Phase Line Maintenance Tasks |
• | Engine Description Overview |
• | Engine Systems Overview |
• | Heavy Maintenance Tasks |
• | Course duration and "hands-on" coverage are contingent on the availability of an engine and required tooling. |
• | A pooling and exchange of service experience for the benefit of the entire airline industry. |
• | A common statistical base. |
• | The selective querying of computer data files for answers to Spirit's inquiries. |
• | Engine Warranty Services |
• | Maintenance Support |
• | Lease Engine Program |
• | Engine Reliability and Economic Forecasts |
• | Logistic Support Studies |
• | Prompt administration of claims concerning Engine Warranty, Service Policy, other support programs and Guarantee Plans. |
• | Investigation of part condition and part failure. |
• | Material provisioning administration for Controlled Service Use programs and other material support. |
• | - General Maintenance Facility Planning Publications |
• | - Customized Facility Plans |
• | - Maintenance Facility and Test Cell Planning Consultation Services |
• | Technical Services |
• | Powerplant Maintenance |
• | Customer Performance |
• | Diagnostic Systems |
• | Human Factors |
• | Flight Operations |
• | Repair Services |
• | Tooling and Support Equipment Services |
• | Technical Publications |
• | Technical Problem Identification/Corrective Action |
• | Implementation |
• | Technical Communication |
• | Engine Conversion Program Definition and Management |
• | Engine Upgrade and Commonality Studies |
• | Engine Incident Investigation Assistance |
• | Definition of Maintenance Tasks and Resource Requirements |
• | Planning Guides |
• | Engine Performance Analysis Computer Programs for Test Cell Use |
• | Test Cell Correlation Analysis and Correction Factors |
• | Engine Stability Procedures and Problem Analysis |
• | Guidance to help Spirit define their engine monitoring system requirements. |
• | Development of hardware specifications and computer programs (by separate contractual arrangement) to satisfy engine diagnostic requirements. |
• | Coordination of all IAE airborne diagnostic support activity. |
• | Introduction of new equipment |
• | Problem resolution and assistance with in-service equipment |
• | Contractual commitment and development program support |
• | Publication of engine operations literature and performance aids |
• | Coordinated Repair Development Activity |
• | Customer Assistance on Repair Procedures and Techniques |
• | Qualification of Repair Sources |
• | Repair Workshops |
• | Repair Development List |
• | Support Equipment Manufacturing/Procurement Documentation |
• | Engine Accessory Test Equipment and Engine Transportation Equipment Specifications |
• | Support Equipment Logistics Planning Assistance |
4.8.2 | Engine Accessory Test Equipment and Engine Transportation Equipment Requirements: |
4.9 | TECHNICAL PUBLICATIONS |
• | Identification of major engine and nacelle components by part number, serial number and ATA - location. |
• | Engine Test Acceptance Certificate. |
• | List of all incorporated serialized parts by part number, serial number and ATA - Location. This list also includes an Industry Item List to identify specific parts by part number, serial number and ATA - Location which the airline customer may choose to monitor during the engine operational life. The parts listed represent approximately 80% of engine total value. |
• | List of all incorporated life limited parts by part number, serial number and ATA - location. |
• | List of all Service Bulletins that were incorporated during initial build of each new engine. |
• | - Individual Customer Account Representatives |
• | - Provisioning |
• | - Planning |
• | - Order Administration |
• | - Spare Parts Inventory |
• | - Effective Expedite Service |
• | - Worldwide Distribution |
• | Aircraft-On-Ground (AOG) - within four hours (in these instances every effort is made to ship immediately). |
• | Critical (Imminent Aircraft-On-Ground (AOG) or Work Stoppage) -- Within 24 hours. |
• | Stock Outage -- Within seven working days (these items are shipped as per Spirit's request). |
• | Forecasts of life limited parts requirements are requested and received semi-annually from major customers. Based on the size of Spirit's order, Spirit shall be considered a major customer. |
• | Engine technical conferences are held frequently within IAE to assess the impact of technical problems on parts. |
• | For a selected group of parts a provisioning conference system is offered which considers actual part inventory change, including usage and receipts, as reported monthly by participating customers. |
Subject: | Side Letter No. 1 to the Amended and Restated V2500-A5 General Terms of Sale between IAE International Aero Engines AG and Spirit Airlines, Inc., October 1, 2013 |
A. | IAE and Spirit previously entered into the 2005 GTA, and subsequently entered into the 2006 Proposal, both of which have been superseded by the Contract; and |
B. | This Side Letter No. 1 amends the Contract so as to provide certain financial and technical assistance to Spirit in support of Spirit's selection of the V2500 engine to power its Aircraft, and in support of the integration of the Aircraft into its fleet. |
1. | Fleet Introductory Assistance Credits |
1.1 | In consideration of Spirit's agreement to purchase Aircraft No. 20 through Aircraft No. 40 inclusive, in accordance with the Contract, and to assist Spirit with the introduction of the Aircraft into its fleet, IAE shall issue credit notes to Spirit's account with IAE in the following amounts (each a "Standard FIA Credit"): |
Aircraft Type | Credit (Jan-06 US$) | Issued at Delivery & Acceptance of: | ||||||
A319 (V2524-A5) | [***] | Each A319 Aircraft | ||||||
A320 (V2527-A5) | [***] | Each A320 Aircraft | ||||||
A321 (V2533-A5) | [***] | Each A321 Aircraft |
1.2 | [***] |
1.3 | [***] |
1.4 | [***] |
2. | Spare Engine Credits |
2.1 | In consideration of Spirit agreeing to purchase the Spare Engines in accordance with the Contract, and to assist Spirit with such purchase, IAE shall credit Spirit's account in accordance with the following values for the corresponding Spare Engines (each a "Spare Engine Credit"): |
Engine Type | Credit (Jan-06 US$) | Issued on Delivery & Acceptance of: | ||||||
V2524-A5 | [***] | Each Firm Spare Engine | ||||||
V2527-A5 | [***] | Each Firm Spare Engine | ||||||
V2533-A5 | [***] | Each Firm Spare Engine | ||||||
V2524-A5 | [***] | Each Option Spare Engine |
2.2 | [***] |
2.3 | Each Spare Engine Credit [***] shall be issued upon delivery to Spirit of the corresponding Firm or Option Spare Engine. Spirit agrees to provide IAE with written notice confirming acceptance of the corresponding Firm or Option Spare Engine promptly after acceptance. |
2.4 | Each Spare Engine Credit [***] shall be used by Spirit for payment against the corresponding spare Engine invoice. |
3. | Credit and Engine Pricing Escalation |
3.1 | The FIA Credits and Spare Engine Credits, referenced in Sections 1and 2above, are subject to escalation in accordance with the IAE Escalation Formula set forth in Exhibit B-3 to the Contract, and shall be escalated from a base month of January 2006 (the "Base Month") to the earlier of the scheduled delivery date as set forth in Exhibit B-1 (and B-2 if applicable) of the Contract or the actual delivery date of the applicable Aircraft or Spare Engine (the "Base Escalated Credit"). |
3.2 | [***] |
3.3 | [***] |
3.4 | [***] |
3.5 | Upon delivery of each Aircraft, IAE will, as of the respective dates of delivery of each of the Aircraft delivered to Spirit, calculate the difference (if any) between: |
(a) | The Deemed Shipset Price (as defined below) escalated in accordance with Section 3.1 above; minus |
(b) | The Deemed Shipset Price escalated in accordance with Section 3.1 above and capped in accordance with Section 3.2 above. |
Aircraft Type | Deemed Shipset Price (Jan-06 US$) | ||||
A319 (V2524-A5) | [***] | ||||
A320 (V2527-A5) | [***] | ||||
A321 (V2533-A5) | [***] |
4. | [***] |
5. | [***] |
5.1 | Clause 6.3 of the Contract, [***], is deleted in its entirety and replaced with the following: |
6.3.1 | [***] |
6.3.2 | [***] |
6.3.3 | IAE shall have the right to set off credits from time to time made available by IAE under the Contract either directly to Spirit or via Airbus or its subsidiaries and affiliates, in respect of the failure by Spirit, after any applicable grace period, to cure any payment default under (i) the Contract or (ii) [***], or (iii) the Fleet Hour Agreement." |
6. | [***] |
7. | Customer Support |
7.1 | Customer Support Manager |
7.2 | Customer Support Representative |
(a) | Reasonable office accommodation including access to telephone, fax, and internet; and |
(b) | Access to such first-aid and emergency assistance as in customarily supplied to Spirit's own employees. |
8. | Customer Training |
8.1 | IAE shall provide, subject to availability, Spirit [***] formal training programs covering courses [***] for a maximum of [***] for qualified Spirit personnel (of which [***] have been used as of the date of this Side Letter No. 1), for a period of [***] from entry-into-service of the first Aircraft, for so long as Spirit operates one or more Aircraft in commercial service. |
8.2 | [***] |
9. | [***] |
10. | Assignment |
10.1 | Clause 6.7 of the Contract, Assignment, is deleted in its entirety and replaced with the following: |
"6.7.1 | Except as otherwise agreed herein, Spirit may not assign in whole or part any of its rights or obligations under the Contract without the written consent of IAE (such consent not to be unreasonably withheld). |
6.7.2 | [***] |
6.7.3 | [***] |
6.7.4 | [***] |
6.7.5 | [***] |
6.7.6 | IAE may, without recourse, assign its rights and/or delegate its obligations under this Agreement to any subsidiary or affiliate of IAE or United |
11. | Miscellaneous |
11.1 | Entire Agreement; Conflicts |
11.2 | Amendment |
11.3 | Proprietary Information |
11.4 | Governing Law |
11.5 | Counterparts |
Agreed to and accepted on behalf of: IAE International Aero Engines AG | Agreed to and accepted on behalf of: Spirit Airlines, Inc. | |||||||||||||
By: | /s/ Rick Deurloo | By: | /s/ Charles A. Rue | |||||||||||
Name: | Rick Deurloo | Name: | Charles A. Rue | |||||||||||
Title: | SVP Sales | Title: | VP Supply Chain | |||||||||||
Date: | 10/2/13 | Date: | 10/1/13 |
Exhibit A Aircraft and Spare Engine Delivery Schedules 23 |
Exhibit B FHA Escalation Formula 26 |
Exhibit C Accessories 27 |
Exhibit D V2500 Turbofan Engine Model Specifications 28 |
Exhibit E Powerplant Description 29 |
Exhibit F Addresses 31 |
Exhibit G Engine Monitoring Services 32 |
Exhibit H Excess Work Rates 35 |
Exhibit I FHA Rate Adjustment Tables 36 |
IAE INTERNATIONAL AERO ENGINES AG | A joint stock company organized and existing under the laws of Switzerland, with a place of business at 400 Main Street, M/S 121-10, East Hartford, CT 06108 (hereinafter called "IAE"). | ||||
AND | |||||
SPIRIT AIRLINES, INC. | A corporation organized and existing under the laws of Delaware, with a place of business at 2800 Executive Way, Miramar, Florida 33025 (hereinafter called "Spirit"). | ||||
Each a "Party" and together the "Parties". |
A. | Spirit has firmly ordered (i) thirty (30) new A320 family aircraft from Airbus all to be powered by IAE V2500-A5 engines and (ii) four (4) new V2500-A5 spare engines from IAE all of which will be operated by Spirit (the "New Engine Fleet"); |
B. | IAE and Spirit have entered into a V2500® General Terms of Sale dated October 1, 2013, as amended from time to time, including all exhibits, schedules, appendices, side letters and amendments thereto (collectively, the "New Engine Fleet GTA") for the provision of V2500-A5 engines, modules, spare parts, tools, equipment, and product support services for the support and operation of the New Engine Fleet; |
C. | IAE and Spirit previously entered into the Amended and Restated V2500® General Terms of Sale dated October 1, 2013 for sale and support of certain V2500-powered Airbus A320 family aircraft and V2500 spare engines already in operation with Spirit (the "Existing Fleet GTA"); |
D. | IAE and Spirit have also previously entered into an Amended and Restated V-ServicesSM Fleet Hour Agreement dated October 1, 2013 for the provision of certain off-wing maintenance for certain V2500-A5 engines already in operation with Spirit (the "Existing Fleet FHA") |
E. | IAE and Spirit now wish to agree upon terms whereby IAE shall arrange for, manage and subcontract certain maintenance of the Eligible Engines as defined herein. |
1. | Definitions |
1.1 | "Accessory" or "Accessories" includes those items listed in Exhibit C to this Agreement. |
1.2 | "Airbus" shall mean Airbus SAS. |
1.3 | "Aircraft" shall mean all or each of the thirty (30) A320 family aircraft powered by V2500-A5 engines to be delivered in accordance with the schedule set forth in Exhibit A hereto, as amended, supplemented or otherwise modified from time to time in accordance with the provisions hereof and of the New Fleet GTA. |
1.4 | "Aircraft Maintenance Manual" or "AMM" means the aircraft maintenance manual published by Airbus for the Aircraft. |
1.5 | "Airworthiness Directive" shall mean any applicable airworthiness directive issued by the Aviation Authority based on certification rules current as of the date of this Agreement. |
1.6 | "Aviation Authority" shall mean the FAA. |
1.7 | "Beyond Economic Repair" shall mean wear, tear or damage to an item of Eligible Equipment beyond economic repair. |
1.8 | "BFE Item" shall mean those items listed as such in Exhibit E of this Agreement. |
1.9 | "Business Day(s)" shall mean a day other than a Saturday, Sunday or holiday scheduled by law for commercial banking institutions in the City of New York, New York, United States. |
1.10 | "Day" means a calendar day. |
1.11 | "EBU Item" shall mean those items listed as such in Exhibit E to this Agreement originally installed on the Eligible Engines or acquired new and dedicated solely for the support of Eligible Engines. |
1.12 | "Eligible Engine(s)" shall mean the new Engines originally installed on the Aircraft and the Spare Engines. Exhibit A to this Agreement identifies the Eligible Engines by serial number and will be updated from time to time to: (i) add Eligible Engines and serial numbers as Spirit takes delivery of the Aircraft and the Spare Engines and (ii) to remove Eligible Engines in accordance with Section 11 hereto. |
1.13 | "Eligible Engine Flight Cycles" shall mean [***]. |
1.14 | "Eligible Engine Flight Hours" shall mean [***]. |
1.15 | "Eligible Equipment" shall mean Eligible Engines. |
1.16 | "Eligible Removal" shall mean [***]. |
1.17 | "Engine(s)" shall mean the basic IAE V2500-A5 turbofan engine, described in the V2500 Turbofan Engine Model Specification(s) set forth in Exhibit D of the Agreement, and which excludes Accessories, EBU Items, QEC Items and Nacelle Items. |
1.18 | "Engine Manual" shall mean the IAE document which sets forth the requirements for Engine off-wing repair. |
1.19 | "Excess Work" shall mean work undertaken by the Maintenance Center during a Shop Visit pursuant to this Agreement, which is further described in Section 8 of this Agreement. |
1.20 | "FAA" shall mean the United States Federal Aviation Administration. |
1.21 | "Failure" shall mean [***]. |
1.22 | "FHA" shall mean this Fleet Hour Agreement. |
1.23 | "FHA Administration Manual" means the logistical plan and instructions described in Section 7 of this Agreement. |
1.24 | "FHA Manager" shall mean the manager provided by IAE for the support of the operation of this Agreement in accordance with the provisions of Section 7.3 of this Agreement. |
1.25 | "FHA Rate(s)" shall mean the rate(s) collectively as set forth in Section 10 below. |
1.26 | "Foreign Object Damage" shall mean [***]. |
1.27 | "Line Maintenance" shall mean any work required to be carried out on an Engine in accordance with the appropriate Aircraft Maintenance Manuals and which can be accomplished either on-wing or off-wing without requiring the induction of such Engine into a Maintenance Center. |
1.28 | "Life Limited Parts" or "LLPs" shall mean the Parts identified in Chapter 5 of the V2500-A5 Engine Manual as having specific life limits. |
1.29 | "Maintenance Center" shall mean the IAE shareholder maintenance center designated by IAE in consultation with Spirit, from time to time to perform services under this Agreement and which is approved by the Aviation Authority as a certified repair station. |
1.30 | "Maintenance Management Plan", "MMP" or "eMMP" shall mean the then-current V2500 engine maintenance planning document described in Section 7 of this Agreement. |
1.31 | "Miscellaneous Shop Visit" shall mean [***]. |
1.32 | "Nacelle Items" shall mean those items listed in Exhibit E as "DPP" (demountable power plant) items or "PP" (positionalized power plant) items originally installed on the Eligible Engines or acquired new and dedicated solely for the support of Eligible Engines. |
1.33 | "Part(s)" shall mean [***]. |
1.34 | "Period of Cover" shall mean the period in which IAE agrees to provide the services pursuant to this Agreement, as set out in Section 3 of this Agreement. |
1.35 | "QEC Item" shall mean those items listed as such in Exhibit E to this Agreement originally installed on the Eligible Engines or acquired new and dedicated solely for the support of Eligible Engines. |
1.36 | "Restoration Shop Visit" or "RSV" shall mean [***]. |
1.37 | "Service Bulletin(s)" shall mean those V2500 service bulletins issued by IAE with categories 1 to 6 that are designated as "target" service bulletins in the MMP. |
1.38 | "Shop Visit" shall mean a Restoration Shop Visit or a Miscellaneous Shop Visit. |
1.39 | "Spare Engine(s)" shall mean all or each of the four (4) new V2500-A5 firmly ordered spare Engines either purchased or to be purchased by Spirit from IAE to be delivered in accordance with the schedule set forth in Exhibit A of this Agreement. |
1.40 | "Testable Engine" shall mean [***]. |
1.41 | "Transportation Coverage" shall mean the services provided to Spirit under Section 6 of this Agreement. |
1.42 | "Workscope" shall mean an IAE written repair request to the Maintenance Center(s) compliant with the MMP, approved by Spirit, such approval not to be unreasonably withheld, that authorizes the Maintenance Center(s) to undertake work on Eligible Equipment. |
2. | FHA Services |
2.1 | Engine Shop Visit Coverage in accordance with the terms of Section 4 |
2.2 | Lease Engine Coverage in accordance with the terms of Section 5. |
2.3 | Transportation Coverage in accordance with the terms of Section 6. |
2.4 | General FHA Services in accordance with the terms of Section 7. |
2.5 | Excess Work as required in accordance with the terms of Section 8. |
3. | Period of Cover |
4. | Shop Visit Coverage |
4.1 | [***] |
4.2 | IAE will use commercially reasonable efforts to provide the following documentation to Spirit following the release of an Eligible Engine from a Maintenance Center following a Restoration Shop Visit: |
4.2.1 | [***]; |
4.2.2 | [***]; and |
4.2.3 | provide an invoice for any Excess Work arising from such Eligible Engine's Restoration Shop Visit as soon as practicable but no later than [***], if applicable. |
4.3 | IAE's obligations for an Engine Shop Visit caused by Foreign Object Damage shall be limited to the provision of repair work and Parts provided through the Maintenance Center to a maximum of [***] per event [***]. |
4.4 | [***] |
4.5 | [***] |
5. | Lease Engine Support |
5.1 | IAE or its designee will maintain a worldwide fleet of spare Engines available for lease by Spirit on an as needed basis. Should Spirit require a spare Engine (a "Lease Engine") from IAE or its designee, IAE or its designee will make such Leased Engine available to Spirit under IAE or its designee's then-current standard short term engine lease agreement for V2500 Engines (IATA Master Short Term Lease Agreement, form 5016 00 ("IATA Agreement"), provided that Spirit acquires and continues to operate and maintain the recommended number of Spare Engines for its Aircraft fleet. |
5.2 | [***] |
5.3 | [***] |
5.4 | [***] |
5.5 | Unless otherwise determined by the FHA Manager, acting reasonably, Spirit is to return each Lease Engine within [***] the need for such Lease Engine is alleviated. |
6. | Transportation |
6.1 | Spirit shall deliver Eligible Engines to IAE in a Testable Engine configuration for each Shop Visit and the Accessories related to such Eligible Engines shall be in a serviceable condition. |
6.2 | [***] |
6.3 | [***] |
6.4 | [***] |
6.5 | [***] |
6.6 | [***] |
6.7 | Transportation coverage as set forth in this Section 6, is subject to a cap of [***] per Eligible Shop Visit, escalated in accordance with Section 10.1.6. |
7. | General Fleet Hour Agreement Services |
7.1 | IAE shall supply Spirit with a V2500-A5 electronic Maintenance Management Plan that shall establish the maintenance requirements including LLP management, incorporation of applicable Service Bulletins and Aviation Authority Airworthiness Directive requirements and Eligible Engine removal planning ("MMP"). The MMP shall be consistent with the relevant provisions of this Agreement and shall be revised and updated at least once a year, taking into account Spirit's then-current operation in consultation with Spirit and fleet-wide operational experience, among other considerations. Additionally, an FHA Administration Manual may be mutually agreed between the parties, which shall establish a logistical plan and instructions for Spirit to facilitate performance by Spirit and IAE under this Agreement. |
7.2 | Engine monitoring data program services set forth in Exhibit G; |
7.3 | an FHA Manager based at IAE's offices who shall be the point of contact for Spirit, twenty four (24) hours per day seven (7) days per week, in respect of the services described in this Agreement. The following responsibilities of IAE shall normally be undertaken by the FHA Manager: |
8. | Excess Work |
8.1 | Any costs incurred by IAE or the Maintenance Center not covered under this Agreement shall be Excess Work and shall be paid for by Spirit in accordance with Section 10.2 of this Agreement. Excess Work shall include any labor, material and other charges for Eligible Engines that arise from the following: |
8.2 | In the event IAE, following consultation with Spirit, determines that an Eligible Engine requires a Shop Visit that will be considered entirely to be Excess Work, then the IAE FHA Manager shall so notify Spirit and IAE shall perform such work. |
8.3 | [***] |
8.4 | [***] |
8.5 | [***] |
8.6 | [***] |
8.7 | [***] |
8.8 | [***] |
9. | Obligations of Spirit |
9.1 | Data and Procedures |
9.1.1 | maintain, collect and provide to IAE performance trend monitoring data on each Eligible Engine in accordance with Exhibit G, maintain timely records in form and detail sufficient for the accurate and expeditious administration of the terms of this Agreement including the assessment of operating conditions relative to those set out in Section 10.4 of this Agreement; |
9.1.2 | make available, and provide access to IAE's provider of electronic condition monitoring data analysis, all data collected in accordance with 9.1.1 above in an electronic format agreed to by IAE, as required for the operation and administration of this Agreement; |
9.1.3 | implement and follow the IAE reasonable recommendations resulting from analysis of the performance trend monitoring data; |
9.1.4 | within ten (10) Business Days after the end of each month during the Period of Cover, report to IAE, in an electronic format agreed to by IAE, the hours and cycles flown, take off derate, and day temperature for each flight by each Eligible Engine during the preceding month; |
9.1.5 | ensure that all data reasonably required by IAE (including borescope reports) to facilitate the correction of any problem causing an Eligible Engine Removal is promptly made available to IAE; |
9.1.6 | provide for each Eligible Engine, no later than two (2) Business Days following Eligible Removal, a removal report containing the following information with respect to the Eligible Engine: |
(a) | a record of Eligible Engine total time and cycles; |
(b) | position on the aircraft, aircraft number, and date of Eligible Engine removal; |
(c) | reason for removal, flight and ground indications prior to and related to removal; |
(d) | module rework history with time since new, time since overhaul and time since repair provided such module was serviced outside of this Agreement; |
(e) | any borescope reports detailing any open discrepancies; |
(f) | total LLP time, LLP part numbers, serial numbers, cycle limits, time since new, cycles since new, remaining cycles, and take-off bump cycles, if applicable; |
(g) | latest build standard record; |
(h) | records with respect to any Accessories, including part numbers, serial numbers, time and cycles since new, overhaul, Repair, or bench test, and a description of prior work performed for each item unless Spirit directs IAE where to send such Accessories; |
(i) | if applicable, a non-incident certification in customary form that the Eligible Engine and all parts installed thereon: |
(i) | have been operated and maintained in accordance with applicable IAE and Airbus instructions and manuals; |
(ii) | have not been operated by any government or military service except as civil aircraft on the civil register; and |
(iii) | have not been installed on any engine or module that was subject to any incident, accident, major failure, fire, extreme stress, over temperature outside normal operation, or over-speed; and |
(j) | any other data reasonably requested by IAE. |
9.1.7 | provide the Engine serial numbers within thirty (30) Business Days of acceptance by Spirit of each applicable Aircraft covered under this Agreement as described in Exhibit A of this Agreement, as amended, supplemented or otherwise modified from time to time; and |
9.1.8 | ensure Eligible Engines are available for FHA services in a Testable Engine configuration (when inducted at the Maintenance Center). |
9.2 | Engine Preparation for Transportation |
9.2.1 | make Eligible Engines available for shipment at Spirit's Main Base no later than ten (10) days prior to their scheduled induction date; |
9.2.2 | maintain in a serviceable condition one (1) IAE approved transportation stand per spare Eligible Engine plus an additional serviceable IAE approved transportation stand; |
9.2.3 | at the time of an Eligible Engine Removal, remove the Eligible Engine from the Aircraft, mount it on an IAE approved transportation stand and prepare such Eligible Engine for shipment, all in accordance with the procedures specified in the applicable IAE manuals; and |
9.2.4 | ensure that it does not remove from the Maintenance Center the IAE approved transportation stand on which the Eligible Engine was transported to the Maintenance Center so that such stand is available at the Maintenance Center on the day such Eligible Engine undergoes testing, to enable efficient movement of such Eligible Engine to the test cell and return transportation of such Eligible Engine to Spirit. |
9.3 | Operation, Maintenance and Troubleshooting of Eligible Equipment |
9.4 | Administration |
9.4.1 | Spirit shall cooperate with IAE to fulfill any reasonable administrative or other requirements of the Maintenance Center, including endorsement of Workscopes for Aviation Authority requirements within three (3) Business Days of receipt from IAE. If Spirit fails to respond, within five (5) Business Days, the Workscope will be deemed to be accepted. |
9.4.2 | Spirit shall accomplish quality audits and obtain certifications required by the Aviation Authority and IAE for accomplishment of work on the Eligible Engines at the Maintenance Center(s). |
9.5 | One Time Concessions |
9.6 | Payment |
9.7 | Records and Audit |
9.7.1 | The Parties shall maintain adequate records as required to meet their respective obligations and compliance with the applicable provisions of this FHA. |
9.7.2 | A Party shall not unreasonably condition or deny the other Party access to such adequate and applicable records for the administration of this Agreement. IAE shall allow or cause the Maintenance Center to allow reasonable access to work areas and Eligible Engine records for inspection by Spirit and, at the request of Spirit and subject to the reasonable rules and regulations of the relevant Maintenance Center, any relevant owner, Lessor or their respective designees. Spirit shall be permitted to perform reasonable quality control inspections of each Maintenance Center. |
9.7.3 | If IAE or its nominee requires access to the premises of Spirit under this FHA it shall provide reasonable written notice to Spirit and such visit or inspection will be at a time mutually agreeable to the Parties. |
9.7.4 | Each Party will comply and ensure that its personnel comply with the other Party's conduct policies, rules, regulations and directions governing the conduct of visitors upon their premises. |
9.8 | Acceptance and Operation |
9.9 | Provision of Serviceable Accessories |
10. | FHA Rates and Payment |
10.1 | FHA Rates |
10.1.1 | The FHA Rate for Restoration Shop Visit Coverage for Eligible Engines during the Period of Cover shall be as follows: |
(a) | For V2524-A5 rated Eligible Engines [***] per Eligible Engine Flight Hour; |
(b) | For V2527-A5 rated Eligible Engines [***] per Eligible Engine Flight Hour; and |
(c) | For V2533-A5 rated Eligible Engines [***] per Eligible Engine Flight Hour. |
10.1.2 | [***] |
10.1.3 | The FHA Rate for Miscellaneous Shop Visit Coverage for Eligible Engines for the first [***] of each Eligible Engine's Period of Cover shall be [***] per Eligible Engine Flight Hour. |
10.1.4 | The FHA Rate for Miscellaneous Shop Visit Coverage for Eligible Engines each year commencing with the [***] for each Eligible Engine during the Period of Cover shall be [***] per Eligible Engine Flight Hour. |
10.1.5 | [***] |
10.1.6 | [***] |
10.2 | Excess Work Invoices |
10.2.1 | Charges for Excess Work shall be invoiced to Spirit by IAE as such Excess Work is performed in accordance with rates identified in Exhibit H. |
10.2.2 | In the event IAE determines that an Eligible Engine requires a Shop Visit that will be considered entirely to be Excess Work, and the Workscope for such Shop Visit is equal to or greater than a level of work that would be performed at a Restoration Shop Visit, then: |
(a) | IAE may invoice Spirit its reasonable estimate of the cost of any Excess Work prior to commencement, or during the execution, of such Excess Work. IAE shall invoice Spirit for the balance of the cost of any Excess Work upon receipt of the corresponding invoice from the Maintenance Center (or promptly issue a credit to Spirit's account with IAE for any excess payment received from Spirit); and |
(b) | Spirit shall pay [***] of the estimated Excess Work invoice prior to induction of the Eligible Engine into the Maintenance Center and (ii) the entire remaining invoice balance (if any) within [***] of Spirit's receipt of the final invoice from IAE. |
10.3 | [***] |
10.4 | [***] |
10.5 | General Conditions |
10.5.1 | The FHA Rates are predicated upon Spirit: |
(a) | maintaining within its fleet of Aircraft an annual average flight cycle of: [***] hours for V2524-A5 powered Aircraft, [***] hours for V2527-A5 powered Aircraft, and [***] hours for V2533-A5 powered Aircraft (each calculated from the moment the wheels of an Aircraft, on which any Eligible Engine is installed, leave the ground on take-off to the moment when the wheels of such Aircraft touch the ground on landing); |
(b) | maintaining an annual average utilization of [***] hours per V2524-A5 powered Aircraft, [***] hours per V2527-A5 powered Aircraft, and [***] hours per V2533-A5 powered Aircraft; |
(c) | maintaining an average engine thrust derate of: [***] for V2524-A5 powered Aircraft, [***] for V2527-A5 powered Aircraft, and [***] for V2533-A5 powered Aircraft, all relative to the name plate thrust rating; |
(d) | maintaining an average ambient temperature for take-off no greater than: [***] for V2524-A5 powered Aircraft, [***] for V2527-A5 powered Aircraft, and [***] for V2533-A5 powered Aircraft; |
(e) | having its main base located at Fort Lauderdale, FL, Detroit, MI, Atlantic City, NJ, or Dallas, TX; |
(f) | Spirit operating each Eligible Engine at its originally installed thrust rating (unless otherwise agreed by the Parties); |
(g) | acquiring all of the Aircraft and Spare Engines as set forth in Section 9.8; |
(h) | after taking delivery of the Spare Engines in accordance with Exhibit A, maintaining a minimum ratio of [***] Spare Engines to installed Engines for its Aircraft fleet; |
(i) | operating and maintaining the Aircraft and Eligible Engines in accordance with Airbus', IAE's, and other applicable OEM's technical manuals and the eMMP (including Engine rebuild requirements) for the duration of the Period of Cover; |
(j) | subject to the provisions of Section 11, operating, and maintaining the Aircraft and Eligible Engines in regular commercial airline operation for the duration of the Period of Cover; |
(k) | [***] |
(l) | acquiring from IAE or its approved sources reasonably sufficient components, parts, and spare Engines at the levels mutually agreed by IAE and Spirit to maintain proper support of the Eligible Engines and Aircraft; and |
(m) | [***]. |
10.5.2 | In the event Spirit operates the Eligible Engines contrary to the preceding conditions, then IAE may make reasonable and appropriate adjustments to the FHA Rates for Restoration Shop Visit Coverage, as listed in Section 10.1.1 above, in accordance with the FHA Rate adjustment matrices set forth in Exhibit I (the "FHA Rate Adjustment Matrices"), which detail the effects of variations in derate, stage length, annual average utilization, and temperature on such FHA Rates. The FHA Rate Adjustment Matrices will be applied on an engine-by-engine basis at RSV induction. [***] |
10.5.3 | If Spirit acquires additional aircraft powered by V2500-A5 engines or additional V2500-A5 spare engines, then at Spirit's option, IAE and Spirit shall use good faith efforts to negotiate appropriate pricing and conditions to include such additional engines under this Agreement. |
10.5.4 | In the event that an Eligible Engine leaves this Agreement for reasons beyond the control of Spirit, for example, an Eligible Engine is deemed damaged Beyond Economic Repair and is replaced by Spirit with another Engine, subject to prior written agreement by IAE (not to be unreasonably withheld, conditioned or delayed), the FHA Rates for that Engine and not for all Eligible Engines, will be adjusted. |
10.6 | Payment |
10.6.1 | [***] |
10.6.2 | Subject to Section 10.6.1 above, Spirit shall pay all invoices submitted by IAE under this Section 10 within [***] of receipt by Spirit. |
10.6.3 | Spirit undertakes that IAE shall receive the full undisputed amount of payments falling due under this Section 10, without any withholding or deduction whatsoever. If Spirit has a reasonable dispute with an Excess Work charge from IAE, Spirit will promptly notify IAE of such dispute in writing detailing the grounds for such dispute, but not later than fifteen (15) Business Days after receipt of such Excess Work charge. The Parties agree to use their reasonable, diligent and good faith efforts to reach a final resolution of the disputed Excess Work charge including, if necessary, elevation of the issue to each Party's senior management at the request of the other Party. |
10.6.4 | All payments under this Section 10 shall be made by electronic transfer and shall be deposited not later than the due date of payment with: |
10.6.5 | Should Spirit fail to make any material payments to IAE required as set forth in this Section 10 or should Spirit fail to make any material payments to IAE when due under any other agreement between IAE and Spirit and such amount is not subject to a good faith dispute between the Parties, then, notwithstanding any rights which IAE may have in contract or in law, IAE reserves the right to (a) assess interest on such late payment at the rate of the greater of [***] or the New York Citibank prime rate plus [***] per annum from the date the payment was due to be made until the date such payment is received by IAE, (b) suspend all work on any and all Eligible Engines then currently at the Maintenance Center pursuant to this FHA and/or (c) hold Eligible Engines in IAE's possession or control. |
10.7 | Taxes and Other Like Charges |
10.7.1 | In addition to amounts stated to be payable by Spirit pursuant to this Agreement, Spirit shall pay any and all imposts, taxes, duties, levies, fees, assessments or other like charges (excluding any income, gains, or excess profit, franchise and similar taxes levied on the part of IAE, any Maintenance Center or their respective Affiliates and subcontractors,) which may be imposed by any government or taxing agency thereof arising from performance by IAE or its subcontractors in connection with this Agreement. |
10.7.2 | All amounts stated to be payable by Spirit pursuant to this Agreement exclude any value added tax, sales tax or similar such tax. In the event that the supply of goods or services under this Agreement is chargeable to any value added tax, sales tax or similar tax, such tax will be borne by Spirit, subject to the receipt of any appropriate documentation that may be required to enable or assist Spirit to |
10.7.3 | If either IAE or Spirit becomes aware of any taxes set forth in Sections 10.7.1 and 10.7.2 above, the relevant Party shall promptly notify the other Party, and both parties agree to cooperate, consult in good faith and take such other reasonable steps in order to mitigate to the full extent permitted by law, any such tax. |
10.8 | [***] |
11. | [***] |
12. | Maintenance Center Requirements |
12.1 | Certification and Approval |
12.1.1 | IAE shall ensure that each Maintenance Center must be certificated by FAA or EASA, as applicable. |
12.1.2 | Each Maintenance Center utilized for Eligible Shop Visits under this Agreement shall be approved in writing by Spirit, such approval not to be unreasonably conditioned, delayed or withheld. |
12.1.3 | While performing services under this Agreement, IAE shall maintain and cause the Maintenance Center to maintain facilities for services hereunder on Eligible Engines, modules and Parts in accordance with the Engine Manual and IAE's other applicable requirements. |
12.1.4 | [***] |
12.2 | [***] |
12.3 | Other Requirements |
12.3.1 | The terms and obligations set forth herein shall apply regardless of the Maintenance Center utilized for services performed hereunder. |
12.3.2 | [***] |
13. | Insurance |
13.1 | IAE shall at its own cost and expense procure and maintain (or cause its subcontractors to procure and maintain) in full force and effect during the Period of Cover policies of insurance of the types and in the minimum amounts as stated below: |
13.2 | [***] |
14. | Warranties; Limitation of Liability |
14.1 | IAE warrants the work performed by a Maintenance Center at the final Shop Visit for each Eligible Engine under this Agreement shall be free from defects in materials and workmanship as follows: If Spirit demonstrates to the reasonable satisfaction of IAE that a defect in the work performed on a Part has caused damage to such Part or any other Part, and Spirit provides written notice to IAE of such damage within [***] or within [***] after installation of the corresponding Eligible Engine on an Aircraft, or if not installed on an Aircraft, within [***] after delivery of the Eligible Engine from the applicable Shop Visit, whichever occurs first, IAE shall, as its sole responsibility for such defect, repair such damage at IAE's own cost and expense. Transportation charges for the return of defectively serviced goods to IAE or the Maintenance Center, and their reshipment to Spirit and risk of loss thereof shall be borne by IAE only if such goods are returned in accordance with reasonable written shipping instructions from IAE. |
14.2 | IAE warrants to Spirit that it shall convey good title to the new Parts sold hereunder. IAE's liability and Spirit's remedy under this warranty are limited to the removal of any title defect or, at the election of IAE, to the replacement of the new Parts or components thereof which are defective in title. |
14.3 | THE WARRANTIES SET FORTH HEREIN AND/OR IN THE NEW ENGINE FLEET GTA TOGETHER WITH THE EXPRESS REMEDIES PROVIDED TO SPIRIT IN ACCORDANCE WITH THIS AGREEMENT AND/OR SUCH NEW ENGINE FLEET GTA, ARE EXCLUSIVE AND ARE GIVEN BY IAE IN LIEU OF (A) ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN STATUTE, CONTRACT, TORT OR STRICT LIABILITY AGAINST OEM OR ITS AFFILIATES, WHETHER OR NOT ARISING FROM THE NEGLIGENCE, ACTUAL OR IMPUTED (BUT NOT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), OF IAE OR ITS AFFILIATES, STOCKHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, PERMITTED ASSIGNS AND AGENTS. |
14.4 | [***] |
14.5 | For purpose of this Section 12, "IAE" shall be deemed to include IAE International Aero Engines AG, Pratt and Whitney, a division of United Technologies Corporation, Pratt & Whitney Aero Engines International GmbH, Japanese Aero Engine Corporation, MTU Aero Engines GmbH, and the respective directors, officers, employees and agents of each. |
15. | Delays |
15.1 | Excusable Delays |
16. | Duplicate Benefits |
17. | Intellectual Property |
17.1 | In the event any suit, claim or action is brought against Spirit (or a person expressly indemnified by Spirit) alleging that, without further combination, Spirit's use or resale of (a) goods (b) a part made by or under IAE's control and in accordance with the specification or design provided by IAE or (c) a process embodied in the goods delivered to Spirit by IAE infringes any patents, IAE will, at its own expense, conduct the entire defense including any and all necessary court action, settlements, and appeals. IAE will either settle such claim or pay all damages and costs awarded in a non-appealable judgment, excluding indirect, incidental, special, consequential, and punitive damages. If the use or resale of such goods or part(s) is finally enjoined, IAE will, at its option: (a) procure for Spirit the right to use or resell such goods or parts; (b) replace such goods or parts with equivalent non-infringing parts; (c) modify such goods or parts so they become non-infringing but equivalent; or (d) remove such goods or part(s) and refund the purchase price (less a reasonable allowance for use, damage or obsolescence). |
17.2 | The preceding provision is applicable only if the following conditions are met: (a) the goods, part(s), services, or process involved in the suit, claim, or action must have been provided under this Agreement during Maintenance Services in accordance with this Agreement, as applicable; (b) the alleged infringement must be an infringement of any patents of the nation in which Spirit's principal place of business is located or a jurisdiction within which the relevant Supplies were manufactured or delivered to Spirit; (c) Spirit must provide IAE with timely notice of such suit, claim, or action and the full opportunity to assume the entire defense thereof; and (d) Spirit must provide IAE with all information available to Spirit and other defendants pertaining to the alleged infringement. |
17.3 | For the avoidance of doubt, this provision will not apply to (a) any alleged patent infringement in any nation other than as specified above; (b) any Spirit-furnished specification or design or the performance of a process not recommended in writing by IAE; (c) any goods or parts or components thereof manufactured according to a non-IAE specification or design; (d) the use or sale of goods or parts delivered hereunder in combination with other goods not delivered to Spirit by IAE; or (e) any instance not specified in the preceding paragraphs. In such instances, Spirit will indemnify and hold IAE harmless. |
18. | Amendment |
19. | Assignment |
19.1 | Except as otherwise agreed herein, Spirit may not assign in whole or part any of its rights or obligations under this Agreement without the written consent of IAE (such consent not to be unreasonably withheld). |
19.2 | [***] |
19.3 | [***] |
19.4 | IAE may, without recourse, assign its rights and/or delegate its obligations under this Agreement to any subsidiary or affiliate of IAE or United Technologies Corporation, or in connection with a merger, consolidation, reorganization, or voluntary sale or transfer of its assets; provided that such assignee/delegate is: (i) solvent at the time of such transfer and (ii) authorized by the applicable regulatory authorities, as necessary, to perform or procure the performance of all obligations being delegated/assigned; and (iii) able, in IAE's sole, reasonable discretion, to make all payments required by IAE to be made to Spirit under this Agreement. |
20. | Notices |
21. | Exclusion of Other Provisions and Previous Understandings |
21.1 | This Agreement and the New Engine Fleet GTA constitute the entire agreement of the Parties with respect to the Eligible Engines and the subject matter hereof and shall apply to the exclusion of any other provisions on or attached to or otherwise forming part of any order form of Spirit, or any acknowledgment or acceptance by IAE, or of any other document which may be issued by either Party relating to such services and the Eligible Engines. |
21.2 | The Parties agree that neither of them have placed any reliance whatsoever on any representations, agreements, statements or understandings made prior to the signature of this Agreement, whether orally or in writing, relating to such services, other than those expressly incorporated in this Agreement, which has been negotiated on the basis that its provisions represent their entire agreement relating to such services and shall supersede all such representations, agreements, statements and understandings. |
22. | Termination, Expiration and Events of Default |
22.1 | Bankruptcy Insolvency |
22.2 | Failure to Make Payments or to Meet Obligations |
22.2.1 | If Spirit fails to make any payment of a material amount, due and owing to IAE as set forth in Section 10 of this Agreement or any other agreement between the Parties (including any late interest due thereon) and such amount is not the subject of a good faith dispute or fails to meet any other material obligation under this Agreement or any other agreement between the Parties, then, after notice to Spirit and the expiration of a [***] cure period, and without prejudice to any of IAE's other rights which IAE may have in contract, at law, or in equity, IAE shall have the right to not to induct, to suspend all work on, or not to release from the Maintenance Center(s) any Eligible Engine until full payment is made by Spirit to IAE or such failure is corrected, as the case may be. |
22.2.2 | If Spirit fails to take delivery of all of the Aircraft and Eligible Engines in accordance with the schedule set forth in Exhibit A to this Agreement, as amended, supplemented or otherwise modified from time to time, or fails to operate the Aircraft and Eligible Engines in regular commercial service as contemplated by Section 10.5 for the duration of the Period of Cover (subject to the fleet flexibility granted in Section 11), in addition to any other rights which IAE may have in contract, at law, or in equity, IAE shall be entitled to make reasonable adjustments to the FHA Rates as appropriate based on the method of calculation used to derive the FHA Rates. |
22.2.3 | Spirit shall have the right to terminate this Agreement in the event that IAE fails to: (i) pay or provide any credit payable hereunder when due and such failure is not cured within [***] or (ii) perform a material obligation in accordance with the terms hereof and such failure continues unremedied for a period in excess of [***] or such failure reoccurs in at least [***] consecutive shop visits after IAE was first given written notice of such failure by Spirit, provided however that in no event shall IAE have fewer than [***] to cure such failure. |
22.3 | Expiration |
22.4 | Effect of Termination or Expiration |
22.4.1 | Upon any termination or expiration of this Agreement, all liabilities and obligations (including payment obligations) that have accrued prior to such termination or expiration (including payment due for Excess Work) shall survive. |
22.4.2 | Spirit shall pay to IAE the cost of any and all services which have been or are in the process of being carried out under the terms of this Agreement which have not been covered by payments made by Spirit under this Agreement plus a surcharge of the lesser of (i) [***] and (ii) the maximum amount allowed by law. Should Spirit terminate this Agreement under Section 20.1 or Section 20.2.3 above, IAE shall return any |
23. | Negation of Waiver |
24. | Severability and Partial Invalidity |
25. | Governing Law |
26. | Publicity |
27. | Confidentiality |
28. | Compliance with All Applicable Laws and Regulations |
28.1 | Export/Import. Spirit agrees that it will not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any IAE goods, software, technical data (including products derived from or based on such technical data), or services received directly or indirectly from IAE to any Prohibited Party without obtaining prior authorization from the relevant government authorities as required pursuant to Export Laws. |
28.2 | Other Laws and Regulations. Each Party agrees that it will not, by act or omission, violate any applicable law or regulation of the United States or any political subdivision thereof where the violation thereof would result in the other Party being deemed to be in violation of such law or regulation or would otherwise result in a criminal or an un-indemnified civil penalty on the part of such other Party |
29. | No Construction Against Drafter |
30. | Damages |
Agreed to and accepted on behalf of: IAE International Aero Engines AG | Agreed to and accepted on behalf of: Spirit Airlines, Inc. | |||||||||||||
By: | /s/ Rick Deurloo | By: | /s/ Charles A. Rue | |||||||||||
Name: | Rick Deurloo | Name: | Charles A. Rue | |||||||||||
Title: | SVP Sales | Title: | VP Supply Chain |
Aircraft No. | Aircraft Model | Engine Model | Scheduled Delivery Date | ||||||||
1 | [***] | [***] | [***] | ||||||||
2 | [***] | [***] | [***] | ||||||||
3 | [***] | [***] | [***] | ||||||||
4 | [***] | [***] | [***] | ||||||||
5 | [***] | [***] | [***] | ||||||||
6 | [***] | [***] | [***] | ||||||||
7 | [***] | [***] | [***] | ||||||||
8 | [***] | [***] | [***] | ||||||||
9 | [***] | [***] | [***] | ||||||||
10 | [***] | [***] | [***] | ||||||||
11 | [***] | [***] | [***] | ||||||||
12 | [***] | [***] | [***] | ||||||||
13 | [***] | [***] | [***] | ||||||||
14 | [***] | [***] | [***] | ||||||||
15 | [***] | [***] | [***] | ||||||||
16 | [***] | [***] | [***] | ||||||||
17 | [***] | [***] | [***] | ||||||||
18 | [***] | [***] | [***] | ||||||||
19 | [***] | [***] | [***] | ||||||||
20 | [***] | [***] | [***] | ||||||||
21 | [***] | [***] | [***] | ||||||||
22 | [***] | [***] | [***] | ||||||||
23 | [***] | [***] | [***] | ||||||||
24 | [***] | [***] | [***] | ||||||||
25 | [***] | [***] | [***] | ||||||||
26 | [***] | [***] | [***] | ||||||||
27 | [***] | [***] | [***] | ||||||||
28 | [***] | [***] | [***] | ||||||||
29 | [***] | [***] | [***] | ||||||||
30 | [***] | [***] | [***] |
Spare Engine No. | Quantity | Engine Model | Scheduled Delivery Date | ||||||||
1 | 1 | [***] | [***] | ||||||||
2 | 1 | [***] | [***] | ||||||||
3 | 1 | [***] | [***] | ||||||||
4 | 1 | [***] | [***] |
1. | FHA Rates will be subject to annual escalation in accordance with the formula set forth below: |
ATA code | Description | Units Per Engine | OEM | ||||||||
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[***] | [***] | [***] | [***] |
1. | SPIRIT ADDRESSES |
(a) | Address for Notices: |
(b) | Address for Invoices: |
2. | IAE ADDRESSES |
(a) | Address for Notices: |
(b) | Address for Invoices: |
(c) | Address for all Other FHA Matters: |
1. | IAE will provide the following Engine health monitoring services ("Services") through the ADEM system: |
(i) | Provide processing of in-flight engine data received from Operator into IAE's EHM database as provided per the data input and transmission requirements set forth in Section 3 herein. All processed data will be provided to the Operator via IAE's web portal. Daily updates require web portal access described in Section 1(b) herein. |
(ii) | Provide automated mechanical exceedance reporting for those Aircraft that are equipped with required on-board hardware and software. |
(iii) | Provide technical analysis of EHM Eligible Engines' performance data and report anomalies indicated by such data to designated Operator personnel as required. |
(iv) | Provide access to monthly EHM Eligible Engine operating trend analysis report covering post EHM Commencement Date operations to assist Operator in the planning and scheduling of EHM Eligible Engines for shop visits. |
(v) | Provide automated alert notification of parameters that have exceeded level and rate change limits. |
(vi) | Provide access to alert details reports that identify Aircraft and Eligible Engines by serial number and provide the date, time, magnitude and details of occurrences when such Eligible Engine exceeds specific performance parameters and provide the ability to store comments associated with a given alert. |
(vii) | Provide exhaust gas temperature (subject to data availability) Watch-Lists, updated monthly utilizing data received from Operator to assist Operator in scheduling Eligible Engine removals for maintenance purposes. The Watch-Lists provide an engine ranking and predicted removal date for a given Eligible Engine based on the measured parameter and deterioration rate to assist with proactive on-wing management and maintenance planning. |
(viii) | Provide access to the following engine performance parameter trend plots that are updated real-time as new in-flight engine data is received from Operator: |
(ix) | Upon special request, raw in-flight engine data can be supplied to the Operator. |
(x) | Input data files and d individually processed records will be stored for a minimum period of five (5) years. |
(i) | Provide twenty-four (24) hour per day access to reports and processed information, provided to under Section 1 herein, through a secure web portal created and maintained by IAE. Such web portal access shall be created and provided to Operator approximately thirty (30) days from the execution of this Agreement. Operator must meet IAE defined requirements for access as detailed in Section 2 herein. IAE will use all reasonable efforts to ensure a service availability target of 96% when measured on an annual basis and that down time of the system is no longer than one (1) business day for any one incident. |
(ii) | IAE shall provide Services under the terms of this Agreement contingent upon the timely receipt of data required by IAE from Operator. It is understood between the parties that the ability of IAE to provide timely and accurate reports and processed information through these web-based services is dependent upon the quality and timeliness of the data received from Operator. |
(iii) | If Email, or pager or cell phone alert notifications are required by the Operator, the Operator shall be responsible for acquiring and maintaining the required pager and cell phone hardware and software and pay any associated communications fees. It is the Operator's responsibility to establish an alert notification contact list and advise IAE of any changes. |
(a) | To facilitate internet portal access, Operator is required to maintain the following: (i) internet access; (ii) Internet Explorer version 5.5 or higher; (iii) 128 bit Secure Socket Layer ("SSL") encryption capability; and (iv) a minimum internet speed of 56K bits per second to access the internet portal. |
(b) | All information being transmitted through the Internet portal will be protected using SSL encryption. In addition, each user of the Internet portal will be authenticated at logon with a unique user identification and password. Once authenticated to the Internet portal, Operator will only be allowed to access the information that Operator and IAE mutually agree a specific user may review. IAE shall review security requirements for web portal access from time to time to ensure an appropriate level of data protection. Updated security requirements shall be communicated to Operator on a timely basis. |
(a) | Operator shall provide all data requested by IAE in order to perform the Services, including but not limited to the date and time the data was recorded, aircraft and engine number, engine position, altitude and mach (or air speed), total air temperature, engine pressure ratio, rotor speeds, fuel flow, oil temperature, oil pressure, mechanical exceedances and pertinent maintenance actions (EHM Eligible Engine changes, sensor changes, other items that may impact engine performance). Operator shall electronically transmit engine condition monitoring data to IAE's designated ground station via air-to-ground service providers (e.g., ARINC and SITA) or via such other routing as the parties mutually agree. |
(b) | Using the facilities available within IAE's V2500 engine monitoring program services, the Operator shall provide feedback of on-wing maintenance actions taken as a result of an alert notification as provided in accordance with Section 1(a)(v) herein. |
Item | Basis | Rates/Fees | ||||||
[***] | [***] | [***](3) | ||||||
[***](4) | [***] | [***] | ||||||
[***] | [***] | [***] | ||||||
[***] | [***] | [***] | ||||||
[***] | [***] | [***] | ||||||
[***] | [***](2) | [***] (3) | ||||||
[***] | [***] | [***](3) |
1. | [***] |
2. | Where units per Engine quantities listed in Exhibit C are greater than [***], a single [***] fee per ATA line item shall still apply. This charge will also cover the packing, one-way transportation and coordination of Accessories removed and sent for vendor repair. |
3. | The above rates and fees are expressed in United States Dollars and are subject to escalation from the base month of January 2013 in accordance with the formula set forth in Exhibit B. |
4. | [***] |
Subject: | Side Letter No. 1 to the V2500-A5 Fleet Hour Agreement between IAE International Aero Engines AG and Spirit Airlines, Inc., dated October 1, 2013 |
1. | New Fleet - Aircraft Delivery Schedule |
2. | New Fleet - Spare Engine Delivery Schedule |
Agreed to and accepted on behalf of: IAE International Aero Engines AG | Agreed to and accepted on behalf of: Spirit Airlines, Inc. | |||||||||||||
By: | /s/ Rick Deurloo | By: | /s/ Edward Christie | |||||||||||
Name: | Rick Deurloo | Name: | Edward Christie | |||||||||||
Title: | SVP Sales | Title: | SVP & CFO | |||||||||||
Date: | 10/2/13 | Date: | 10/2/13 |
Aircraft No. | Aircraft Model | Engine Model | Scheduled Delivery Date | ||||||||
1 | [***] | [***] | [***] | ||||||||
2 | [***] | [***] | [***] | ||||||||
3 | [***] | [***] | [***] | ||||||||
4 | [***] | [***] | [***] | ||||||||
5 | [***] | [***] | [***] | ||||||||
6 | [***] | [***] | [***] | ||||||||
7 | [***] | [***] | [***] | ||||||||
8 | [***] | [***] | [***] | ||||||||
9 | [***] | [***] | [***] | ||||||||
10 | [***] | [***] | [***] | ||||||||
11 | [***] | [***] | [***] | ||||||||
12 | [***] | [***] | [***] | ||||||||
13 | [***] | [***] | [***] | ||||||||
14 | [***] | [***] | [***] | ||||||||
15 | [***] | [***] | [***] | ||||||||
16 | [***] | [***] | [***] | ||||||||
17 | [***] | [***] | [***] | ||||||||
18 | [***] | [***] | [***] | ||||||||
19 | [***] | [***] | [***] | ||||||||
20 | [***] | [***] | [***] | ||||||||
21 | [***] | [***] | [***] | ||||||||
22 | [***] | [***] | [***] | ||||||||
23 | [***] | [***] | [***] | ||||||||
24 | [***] | [***] | [***] | ||||||||
25 | [***] | [***] | [***] | ||||||||
26 | [***] | [***] | [***] | ||||||||
27 | [***] | [***] | [***] | ||||||||
28 | [***] | [***] | [***] | ||||||||
29 | [***] | [***] | [***] | ||||||||
30 | [***] | [***] | [***] | ||||||||
31 | [***] | [***] | [***] | ||||||||
32 | [***] | [***] | [***] | ||||||||
33 | [***] | [***] | [***] | ||||||||
34 | [***] | [***] | [***] | ||||||||
35 | [***] | [***] | [***] | ||||||||
36 | [***] | [***] | [***] | ||||||||
37 | [***] | [***] | [***] | ||||||||
38 | [***] | [***] | [***] | ||||||||
39 | [***] | [***] | [***] | ||||||||
40 | [***] | [***] | [***] |
41 | [***] | [***] | [***] | ||||||||
42 | [***] | [***] | [***] | ||||||||
43 | [***] | [***] | [***] | ||||||||
44 | [***] | [***] | [***] | ||||||||
45 | [***] | [***] | [***] |
Firm Spare Engine Delivery Schedule | |||||||||||
Spare Engine No. | Quantity | Engine Model | Scheduled Delivery Date | ||||||||
1 | 1 | [***] | [***] | ||||||||
2 | 1 | [***] | [***] | ||||||||
3 | 1 | [***] | [***] | ||||||||
4 | 1 | [***] | [***] |
Option Spare Engine Delivery Schedule | |||||||||||
Spare Engine No. | Quantity | Engine Model | Scheduled Delivery Date | ||||||||
1 | 1 | [***] | [***] | ||||||||
1 | 1 | [***] | [***] |
IAE INTERNATIONAL AERO ENGINES AG | a joint stock company organized and existing under the laws of Switzerland, with a place of business at 400 Main Street, M/S 121-10, East Hartford, Connecticut 06108, USA, (hereinafter called "IAE") and | ||||
SPIRIT AIRLINES, INC. | a corporation organized and existing under the laws of Delaware, whose principal place of business is at 2800 Executive Way, Miramar, Florida 33025 (hereinafter called "Spirit"). |
A. | Spirit has firmly ordered (i) thirty (30) new A320 family aircraft from Airbus all to be powered by IAE V2500-A5 engines and (ii) four (4) new V2500-A5 spare engines from IAE all of which will, subject to Spirit's rights hereunder, be operated by Spirit (the "New Engine Fleet"); |
B. | IAE and Spirit have entered into a V-ServicesSM Fleet Hour Agreement dated October 1, 2013 for the provision of certain off-wing maintenance for the New Engine Fleet (the "New Engine Fleet FHA"); |
C. | IAE and Spirit previously entered into the Amended and Restated V2500® General Terms of Sale dated October 1, 2013 for sale and support of certain V2500-powered Airbus A320 family aircraft and V2500 spare engines already in operation with Spirit (the "Existing Fleet GTA"); |
D. | IAE and Spirit have also previously entered into an Amended and Restated V-ServicesSM Fleet Hour Agreement dated October 1, 2013 for the provision of certain off-wing maintenance for certain V2500-A5 engines already in operation with Spirit (the "Existing Fleet FHA"); and |
E. | IAE and Spirit now wish to agree upon terms whereby IAE will supply to Spirit V2500 engines, modules, spare parts, special tools, ground equipment, and product support services for the support and operation of the New Engine Fleet. |
1. | Definitions |
1.1 | "Aircraft" shall mean the thirty (30) new Airbus A320 family aircraft powered by new Engines firmly ordered and being acquired by Spirit from Airbus for delivery as set forth in Exhibit B-1 to this New Fleet Contract, as the same may be amended from time to time in accordance herewith. |
1.2 | "Airbus" shall mean Airbus SAS, with its principal place of business at 1, Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France, together with its successors and assigns. |
1.3 | "Certification Authority" shall mean the United States Federal Aviation Administration. |
1.4 | "Change Order" shall have the meaning set forth in Section 2.3.1 hereto. |
1.5 | "Engine(s)" shall mean the IAE V2500 aero engine described in the applicable Specification(s). |
1.6 | "Initial Provisioning" shall mean the establishment by Spirit of an initial stock of Spare Parts, Support Equipment, and Vendor Parts. |
1.7 | "Initial Provisioning Data" shall mean information supplied by IAE to Spirit for Initial Provisioning purposes. |
1.8 | "Initial Provisioning Orders" shall mean orders for Spare Parts and Support Equipment for the purpose of Initial Provisioning. |
1.9 | "Lead Time" shall mean the period specified in the Spare Parts Catalog that represents the minimum time required between acceptance by IAE of an order by Spirit for Spare Parts and commencement of delivery of such Spare Parts. |
1.10 | "Service Bulletins" shall mean those service bulletins containing advice and instructions issued by IAE to Spirit from time to time in respect of Engines. |
1.11 | "Spare Engines" shall mean the Firm Spare Engines as defined in Section 2.2.1. |
1.12 | "Spare Parts" shall mean spare parts for Engines as identified in the Spare Parts Catalog, excluding the items listed in the Specification as being items of supply by Spirit. |
1.13 | "Spare Parts Catalog" shall mean the catalog published by IAE from time to time providing a description, Lead Time and price for Spare Parts available for purchase from IAE. |
1.14 | "Specification(s)" shall mean the IAE Engine Specification(s) set forth in Exhibit A to this New Fleet Contract, as the same may be amended, supplemented and/or updated from time to time. |
1.15 | "Supplies" shall mean V2500 engines (including installed Engines and Spare Engines), Spare Parts, Vendor Parts, and Support Equipment. |
1.16 | "Support Equipment" shall mean tools, and all equipment (including handling, transportation and ground equipment) to be supplied pursuant to this New Fleet Contract for use with the Aircraft and/or Spare Engines and not for installation on the Aircraft. Support Equipment does not constitute Spare Parts. |
1.17 | "Vendor Parts" shall mean parts not manufactured by IAE, including accessories, described as "Vendor Parts" in Initial Provisioning Data. Vendor Parts do not constitute Spare Parts. |
2. | Installed and Spare Engine Purchase Commitments |
2.1 | Agreement to Purchase Aircraft from Airbus |
2.2 | Agreement to Purchase Spare Engines from IAE |
2.2.1 | Subject to the terms and conditions of this Agreement, Spirit hereby places a firm order with IAE for the purchase of four (4) new spare Engines (the "Spare Engines") for delivery according to the schedule set forth in Exhibit B-2 to this New Fleet Contract, as the same may be amended, supplemented and/or updated from time to time. |
2.2.2 | Except as otherwise set forth in the following paragraph, Spirit shall purchase an Engine storage bag and transportation stand from IAE for delivery with each Spare Engine. The prices for such equipment shall be the then-current price as set forth in the IAE spare parts catalog. |
2.3 | Type Approval and Changes in Specification |
2.3.1 | Each of the Spare Engines will be manufactured to the standards set forth in the applicable Specification. After the date of this New Fleet Contract, the Spare Engines may be varied from the standards set forth in the Specification and other IAE manufacturing specifications from time to time by written change orders (each a "Change Order"), which shall set forth in detail: |
(a) | The changes to be made in the Spare Engines; and |
(b) | The effect (if any) of such changes on the Specification (including but not limited to performance and weight), on interchangeability of the Spare Engines in the airframe, on prices and on dates of delivery of the Spare Engines. |
2.3.2 | IAE may make any changes in the Spare Engines that do not adversely affect the Specification (including but not limited to performance and weight), interchangeability of the Spare Engines in the airframe, prices or dates of delivery of the Spare Engines. In the case of such permitted changes, a Change Order shall not be required or if issued shall not be binding until signed by IAE and Spirit. |
2.3.3 | At the time of delivery of the Spare Engines there is to be in existence an FAA-issued "Type Approval Certificate" for the Spare Engines in accordance with the provisions of the Specification. |
2.3.4 | The Specification has been drawn with a view to the requirements of the Certification Authority and the official interpretations of such requirements in existence at the date of this New Fleet Contract (such requirements and interpretations being hereinafter referred to as "Current Rules"). Subject to Section 2.3.2 above, IAE and Spirit agree that they will execute an appropriate Change Order in respect of any change required to the Spare Engines to enable such Spare Engines to conform to the requirements of the Certification Authority and the official interpretations of such requirements in force at the date of delivery of such Spare Engines. |
2.3.5 | The price of any Change Order is to be paid by IAE in the case of changes required to conform to the Current Rules and by Spirit in any other case. |
2.4 | Inspection and Acceptance |
2.4.1 | IAE shall ensure that each Spare Engine delivered to Airlines is new and conforms to the applicable Specification through the maintenance of procedures, systems and records approved by the airworthiness authority. An FAA-issued "Authorized Release Certificate" (FAA Form 8130-3, Airworthiness Approval Tag) or "Certificate of Conformity" (as the case may be) will be issued and signed by personnel authorized for such purposes. |
2.4.2 | Subject to its rights under Section 2.4.4 below, upon delivery of a Spare Engine pursuant to Section 2.5.1 below for and the issuance of an Authorized Release Certificate or a Certificate of Conformity (as the case may be), Spirit shall be deemed to have accepted the relevant Spare Engine (and Engine storage bag and transportation stand, if purchased from IAE), and that the relevant Spare Engine conforms to the applicable Specification. IAE shall, upon written request from Spirit and subject to the permission of the appropriate governmental authorities, arrange for Spirit's personnel to have reasonable access to the appropriate premises in order to examine the Spare Engines prior to the issue of conformance documentation and to witness Engine acceptance tests. |
2.4.3 | Spirit's acceptance or deemed acceptance will, however, in no way prejudice its warranties and support rights under this New Fleet Contract or the New Fleet FHA. |
2.4.4 | Notwithstanding the foregoing, upon delivery of a Spare Engine, Spirit shall have the right to inspect (including a borescope inspection) such Engine. In the event that Spirit finds a non-conformance with the requirements set forth herein, Spirit shall report such non-conformance in writing to IAE upon or within [***] of delivery provided that IAE will use reasonable efforts to resolve such non-conformance in a reasonable timeframe to be agreed by the Parties. If Spirit does not report a non-conformance within [***] of delivery, the relevant Spare Engine will be deemed to have been accepted. If IAE is unable to resolve such non-conformance within the agreed reasonable timeframe, then Spirit may reject such Spare Engine. |
2.4.5 | If Spirit refuses, is unable to accept, or otherwise hinders delivery of any Spare Engine that satisfies the requirements and conditions set forth herein, Spirit shall nevertheless pay or cause IAE to be paid therefore as if, for the purposes of payment only, the Spare Engines had been delivered. |
2.4.6 | In any of the cases specified in Section 2.4.5 above, Spirit shall also pay to IAE such reasonable sum as IAE shall require in respect of storage, maintenance and insurance of those Spare Engines. |
2.5 | Delivery, Shipping, Title and Risk of Loss or Damage |
2.5.1 | Provided Spirit has made payment in accordance with Section 2.7 below, IAE will deliver each Spare Engine (and Engine storage bag and transportation stand, if purchased from IAE) in accordance with the delivery schedule set out in Exhibit B-2 to this New Fleet Contract. IAE will provide one-way transportation, including risk of loss, for each Spare Engine from IAE's facilities to Spirit's main base and deliver the same to Spirit at such location. |
2.5.2 | Upon such delivery, title to and risk of loss of or damage to the relevant Spare Engine (and Engine storage bag and transportation stand, if purchased from IAE) shall pass to Spirit. |
2.5.3 | Spirit will notify IAE at least thirty (30) days before the scheduled time for delivery of each of the Spare Engines of its instructions as to the marking and shipping of each of the Spare Engines. |
2.6 | Price |
2.7 | Payment |
2.7.1 | Spirit will make payment for each Spare Engine (and Engine storage bag and transportation stand, if purchased from IAE) in United States Dollars as follows: |
(a) | [***] before the scheduled delivery of each of the Spare Engines, Spirit shall pay to IAE a non-refundable (unless the relevant Spare Engine shall not be delivered to Spirit as a result of any breach by IAE of this Agreement) pre-delivery payment of [***] of the Estimated Purchase Price of such Spare Engine; and |
(b) | At the time of delivery of each of the Spare Engines, Spirit shall pay to IAE the balance of the net purchase price of such Spare Engine (net of all applicable credits), plus the purchase price of the Engine storage bag and transportation stand, if purchased from IAE. |
2.7.2 | IAE shall have the right to require Spirit to make additional payments in respect of price changes arising from the provisions of Section 2.3 above on a similar basis to that specified in Section 2.7.1 above. |
2.7.3 | Spirit shall pay the full amount of payments falling due under this Section 2.7, without any withholding or deduction whatsoever. |
2.7.4 | All payments under this Section 2.7 shall be made by wire transfer and shall be deposited not later than the due date of payment with: |
2.7.5 | For the purpose of this Section 2.7 "payment" shall only be deemed to have been made to the extent cleared or good value funds are received in the numbered IAE bank account specified in Section 2.7.4 above or as otherwise notified to Spirit in writing by IAE. |
2.7.6 | If Spirit fails to make any payment pursuant to this Section 2 on or before the date when such payment is due, then, without prejudice to any of IAE's other rights, IAE |
2.7.7 | For the purpose of this Section 2.7, the "Estimated Purchase Price" of any of the Spare Engines shall be calculated in accordance with the following formula: |
3. | Spare Parts Provisions |
3.1 | Intent and Term |
3.1.1 | For as long as Spirit owns and operates one or more Aircraft in regular commercial service and is not in breach of any material obligation to IAE under this New Fleet Contract, IAE shall use commercially reasonable efforts to make available adequate supplies of Spare Parts for sale to Spirit under this New Fleet Contract. In consideration thereof, except as otherwise provided under Section 3.1.2 below, Spirit shall buy from IAE, and IAE shall sell to Spirit, all of Spirit's requirements of the following: |
(a) | Spare Parts and Support Equipment necessary to support Spirit's operation of the Aircraft and/or use of the Spare Engines; and |
(b) | Vendor Parts for which direct supply arrangements between the manufacturers of such Vendor Parts and Spirit cannot be reasonably established. Spirit shall notify IAE in writing not less than the greater of (i) the lead time of the vendor as specified in the respective vendor manual or (ii) three (3) months before scheduled delivery requested by Spirit that Spirit intends to purchase such Vendor Parts from IAE. |
3.1.2 | Purchase by Spirit from Others |
3.2 | ATA Standards |
3.3 | Stocking of Spare Parts |
3.4 | Lead Times |
3.4.1 | IAE shall endeavor to deliver replenishment Spare Parts within the Lead Time specified in the IAE Spare Parts Catalog, except for certain major Spare Parts that are designated in the Spare Parts Catalog as being available at prices and lead times to be quoted upon request. Support Equipment and Vendor Parts are available at prices and Lead Times to be quoted upon request and IAE shall endeavor to deliver any such Support Agreement or Vendor Parts within such Lead Times as quoted. |
3.4.2 | If any order for replenishment Spare Parts shall call for a quantity materially in excess of Spirit's normal requirements, IAE shall notify Spirit and may request a special delivery schedule. If Spirit confirms that the full quantity ordered is required, delivery of the order shall be effected at delivery dates mutually acceptable to IAE and Spirit and the Lead Times provided by this Section shall not apply. |
3.4.3 | In an emergency, IAE shall use its reasonable efforts to deliver all Spare Parts within the time limits specified by Spirit. IAE will provide notice of the action to be taken on such orders within the following time periods from IAE's receipt of such notice and based on the type of order: |
(a) | AOG (Aircraft on Ground) orders - within 4 hours; |
(b) | Critical (imminent AOG or work stoppage) - within 24 hours; |
(c) | Expedited (less than published or quoted lead time) - within 7 days. |
3.5 | Ordering Procedure |
3.5.1 | Orders for Spare Parts and Support Equipment may be placed by Spirit from time to time on an as-needed basis. Spirit shall give IAE as much notice as practicable of any change in its operation, including, but not limited to, changes in maintenance or overhaul arrangements affecting its requirements of Spare Parts, Support Equipment and including Vendor Parts. |
3.5.2 | IAE shall promptly acknowledge receipt of each order for Spare Parts in accordance with ATA Specification 2000 procedure. Unless qualified, such acknowledgment, subject to variation in accordance with Section 3.4.2 above, shall constitute an acceptance of the order under the terms of this New Fleet Contract. |
3.5.3 | Standard package quantities shall be delivered and packed in accordance with the Spare Parts Catalog. |
3.6 | Modifications to Spare Parts |
3.6.1 | IAE shall be entitled to make modifications or changes to the Spare Parts ordered by Spirit hereunder provided that the modification has received the approval of the Certification Authority and modified Spare Parts shall be substituted for Spare Parts ordered. IAE shall promptly inform Spirit by means of Service Bulletins when such modified Spare Parts (or Spare Parts introduced by a repair scheme) become available for supply hereunder. Notification of such availability shall be given to Spirit before delivery. |
3.6.2 | Modified Spare Parts shall be substituted for Spare Parts ordered unless the modifications stated in Service Bulletins in the recommended or optional category are considered by Spirit to be unacceptable and Spirit so states in writing to IAE within ninety (90) days of the transmittal date of the applicable Service Bulletin, in which case Spirit shall be entitled to place a single order for Spirit's anticipated total requirement of pre-modified Spare Parts, at a price and delivery schedule to be agreed. |
3.6.3 | Unless Spirit notifies IAE in writing under the provisions of Section 3.6.2 above, IAE may supply at the expense of Spirit a modification of any Spare Part ordered (including any additional Spare Part needed to ensure interchangeability), provided that the modification has received the approval of the Certification Authority. The delivery of such Spare Parts shall begin on dates indicated by the applicable Service Bulletin. The delivery schedule shall be agreed at the time when orders for modifications are accepted by IAE. |
3.7 | Inspection |
3.7.1 | Conformance to the Specification of Spare Parts purchased hereunder will be assured by IAE through the maintenance of procedures, systems and records approved by the Certification Authority. Conformance documentation will be issued by IAE to Spirit and signed by IAE personnel authorized for such purpose. |
3.7.2 | Conformance of Support Equipment and Vendor Parts purchased pursuant to this Section 3 will be assured by IAE conformance documentation and/or Vendor conformance documentation, as applicable. |
3.7.3 | Upon the issuance of conformance documentation in accordance with Sections 3.7.1 or 3.7.2 above and delivery in accordance with Section 3.9.1 below Spirit shall be deemed to have accepted the applicable Spare Parts, Support Equipment, or Vendor Parts, and that such Spare Parts, Support Equipment or Vendor Parts conform to the applicable specification without prejudice to any of Spirit's warranty and support rights under this New Fleet Contract or any other right of Spirit under applicable law. |
3.8 | Delivery and Packing |
3.8.1 | IAE shall deliver Spare Parts, Support Equipment and Vendor Parts if such parts are purchased from IAE pursuant to this Section 3, Ex-Works (INCOTERMS 2000) the point of manufacture. Shipping documents and invoices shall be in accordance with ATA Specification 2000. |
3.8.2 | Upon such delivery as described in Section 3.8.1, title to and risk of loss of or damage to the Spare Parts, Support Equipment, and Vendor Parts shall pass to Spirit. |
3.8.3 | In accordance with ATA Specification 2000 requirements, Spirit shall advise IAE at time of order of its instructions as to the marking and shipping of the Spare Parts, Support Equipment and Vendor Parts. |
3.8.4 | The packaging of Spare Parts, Support Equipment, and Vendor Parts shall be in accordance with ATA Specification 300 Category 2 standard, unless deviations are otherwise agreed pursuant to Section 3.2 and shall be free of charge to Spirit. Category 1 standard packaging, if required by Spirit, shall be paid for by Spirit. |
3.9 | Prices |
3.9.1 | Prices of all Spare Parts, Support Equipment, and Vendor Parts shall be quoted in U.S. Dollars, in the Spare Parts Price Catalog, or Initial Provisioning Data, or in individual quotations. Such prices shall represent net unit prices, Ex-Works (INCOTERMS 2000), IAE point of manufacture according to Section 3.8.1 above. |
3.9.2 | Prices applicable to each order placed by Spirit hereunder shall be the prices in effect at the time of such order according to the terms of the Spare Parts Price Catalog. IAE will honor the Spare Parts Catalog price or the quoted price (within the applicable quote validity period) at the time of each purchase order. If Spirit makes an error in its purchase order, the price at the time of the corrected purchase order will be applicable. |
3.9.3 | IAE may from time to time adjust its prices for Spare Parts and Support Equipment upon not less than ninety (90) days prior written notice to Spirit. Any individual price errors in the calculation of prices may be corrected in good faith without advance notice to Spirit. |
3.9.4 | On request by Spirit, prices of Spare Parts, Support Equipment, or other materials not included in the Spare Parts Price Catalog shall be quoted within a reasonable time by IAE. |
3.10 | Payment |
3.10.1 | Payment for all purchases of Spare Parts, Support Equipment, and Vendor Parts under this Section 3 shall be made by Spirit to IAE [***]. Payment for any other invoices arising under this New Fleet Contract shall be made by Spirit to IAE [***]. |
3.10.2 | Spirit undertakes that IAE shall receive payment in U.S. Dollars of the full amount of payments falling due under this Section 3.10, without any withholding or deduction whatsoever. |
3.10.3 | All payments under this Section 3.10 shall be made by wire transfer to, and shall be deposited not later than the due date of payment with: |
3.10.4 | For the purpose of this Section 3.10, payment shall only be deemed to have been made to the extent immediately available funds are received in the account specified in sub-Section 3.10.3 above or as otherwise notified by IAE in accordance with the terms of this New Fleet Contract. |
3.10.5 | Notwithstanding Section 3.10.1 above, payments for all purchases of Spare Parts, Support Equipment and Vendor Parts may, at IAE's option become payable prior to delivery of such items upon the occurrence and during the continuance of any of the following events: (a) a receiver or trustee is appointed for all or a substantial part of Spirit's property, or (b) Spirit is adjudicated or voluntarily becomes a bankrupt under any bankruptcy or winding up laws or other similar legislation, or (c) Spirit becomes insolvent or makes an assignment for the benefit of creditors, or (d) Spirit is in default of any payments obligation under this New Fleet Contract, the New Fleet FHA, the Existing Fleet GTA, the Existing Fleet FHA, or [***], or (e) is in material default under any section of this New Fleet Contract after receipt of written notice of such payment or material default and the expiration of any applicable cure period in respect thereof. Notwithstanding the foregoing, Spirit shall not be deemed to be in default of any payment obligation if the validity or amount of the same is being contested by Spirit in good faith. |
3.10.6 | If Spirit fails to make any payment for any Spare Parts, Support Equipment, or Vendor Parts on or before the date when such payment is due, then, without prejudice to any other rights set forth herein or under applicable law, IAE will be entitled to charge interest on the overdue amount, at the rate of the lesser of [***] or the New York Citibank prime rate plus [***] per annum, from the date such payment was due to the date such payment is made. Notwithstanding the foregoing, Spirit shall not be liable for interest in respect of any overdue amount which is being contested in good faith. |
3.11 | Conflict |
4. | Warranties, Guarantees and Liabilities |
4.1 | IAE warrants to Spirit that, at the time of delivery, the Supplies sold hereunder will be free of defects in material and manufacture, and will conform substantially to applicable specifications and the rules and regulations of the Certification Authority. IAE's liability and Spirit's remedies under this warranty are limited to the repair or replacement, at IAE's election, of Supplies or parts thereof returned to the place of manufacture in accordance with IAE's written shipping instructions and which are shown to IAE's reasonable satisfaction to have been defective; provided, that written notice of the defect shall have been given by Spirit to IAE within [***] after the first operation or use of the relevant Supplies (or if the Supplies are installed in Spirit Aircraft, [***]) after the date of delivery of such Supplies by IAE to Spirit. Transportation charges for the return of Supplies to IAE pursuant to this Section 4.1 and their reshipment to Spirit and the risk of loss thereof will be borne by IAE only if the Supplies are returned in accordance with reasonable written shipping instructions from IAE and judged by IAE, acting reasonably, to have been defective at the time of delivery to Spirit. |
4.2 | IAE warrants to Spirit that it shall convey good and marketable title to all Spare Engines, Parts and other goods sold to Spirit hereunder, free and clear of all liens, claims, encumbrances and other rights of third parties. |
4.3 | In addition, IAE grants and Spirit accepts the following (all as set forth in Exhibit D, the "Warranties"): |
4.4 | IAE also grants and Spirit accepts the following (all as set forth in Exhibit E, the "Guarantees"): |
4.5 | The parties agree that the Warranties shall apply to any equipment that falls within the type of equipment covered by those Warranties, which are manufactured, supplied, or inspected by IAE howsoever and whenever (whether before, on or after the date first above written) acquired by Spirit from whatsoever source including but not limited to any V2500 aero engines and any associated equipment therefor, and any parts for such engines and associated equipment that form part of any aircraft acquired from the manufacturer. |
4.5 | [***] It is not the intent, however, to duplicate benefits or remedies provided to Spirit by IAE or another source (e.g., another equipment manufacturer or lessor) as a result of the same event or cause. Therefore, notwithstanding the terms of the Warranties and Guarantees, Spirit agrees that it shall not be eligible to receive benefits or remedies from IAE if it stands to receive or has received duplicate benefits or remedies from IAE or another source as a result of the same event or cause. Furthermore, in no event shall IAE be required to provide duplicate benefits to Spirit and any other party (such as a leasing company) as a result of the same event or cause. |
4.6 | IAE and Spirit agree that the following provisions shall apply to each of the Guarantees, unless otherwise expressly set forth therein. |
(a) | The rates and remedies in the Guarantees are predicated upon Spirit operating its Aircraft powered by Engines in accordance with the following operating conditions: |
(i) | An annual average flight cycle of: [***] hours for V2524-A5 powered Aircraft, [***] hours for V2527-A5 powered Aircraft, and [***] hours for V2533-A5 powered Aircraft (each calculated from the moment the wheels of an Aircraft, on which an Engine is installed, leave the ground on take-off to the moment when the wheels of such Aircraft touch the ground on landing); |
(ii) | An annual average utilization of [***] hours per V2524-A5 powered Aircraft, [***] hours per V2527-A5 powered Aircraft, and [***] hours per V2533-A5 powered Aircraft; |
(iii) | An average engine thrust derate of: [***] for V2524-A5 powered Aircraft, [***] for V2527-A5 powered Aircraft, and [***] for V2533-A5 powered Aircraft, all relative to the name plate thrust rating; |
(iv) | An average ambient temperature for take-off no greater than: [***] for V2524-A5 powered Aircraft, [***] for V2527-A5 powered Aircraft, and [***] for V2533-A5 powered Aircraft; |
(v) | Spirit's main bases are located at Fort Lauderdale, Florida, Detroit, MI, Atlantic City, NJ, Dallas, TX, USA; |
(vi) | Spirit acquiring all of the Aircraft and Firm Spare Engines as set forth in Exhibit B-1 and Exhibit B-2, as amended, supplemented and/or updated from time to time; |
(vii) | After taking delivery of all the Firm Spare Engines as set forth in Exhibit B-2, Spirit maintaining a minimum ratio of [***] Spare Engines to installed Engines for its Aircraft fleet; |
(viii) | Spirit owning, operating, and maintaining the Aircraft and Engines in regular and frequent airline operation for the duration of the Guarantee period(s), in accordance with Airbus', IAE's, and other applicable OEM's technical manuals, the MMP (including Engine rebuild requirements) and the New Fleet FHA, as applicable; |
(ix) | [***] |
(x) | Spirit acquiring from IAE or IAE's approved sources sufficient accessories, components, Spare Parts, and spare Engines at the levels recommended by IAE, to maintain proper support of the New Engine Fleet; and |
(xi) | Spirit operating each Engine at its originally installed or delivered thrust rating, except as otherwise mutually agreed by the Parties. |
(b) | Should any of the above operating conditions not be met or if Spirit takes delivery of additional aircraft powered by V2500 engines that the Parties agree to include such engines under this New Fleet Contract, IAE, acting in good faith and in consultation with Spirit, may make reasonable and appropriate adjustments to the Guarantees, with appropriate retroactive application, to address any deviations from such operating conditions. |
(c) | Subject to Section 4.6.2(b) above, IAE agrees that, so long as Spirit does not vary the specific conditions for Engines listed in Sections 4.6.2(a)(i), 4.6.2(a)(ii), , 4.6.2(a)(iii) and 4.6.2(a)(iv) by more than [***] from their stated levels, Guarantee Rates for each Guarantee shall not be modified for such variation unless expressly stated to the contrary in such Guarantee. |
(d) | Where Guarantee Rates are delineated by the applicable Engine model, such Guarantee Rates reflect the assumption that all Aircraft are delivered with the corresponding V2500-A5 Engine model. IAE agrees that the actual Guarantee Rate for Engines under such Guarantees shall fall between the highest and lowest rates, irrespective of the actual Aircraft model mix, |
4.7 | THE WARRANTIES AND GUARANTEES GRANTED TO SPIRIT UNDER THIS NEW FLEET CONTRACT AND/OR THE NEW ENGINE FLEET FHA, ARE EXCLUSIVE AND ARE GIVEN BY IAE IN LIEU OF (A) ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN STATUTE, CONTRACT, TORT OR STRICT LIABILITY AGAINST IAE OR ITS AFFILIATES, WHETHER OR NOT ARISING FROM THE NEGLIGENCE, ACTUAL OR IMPUTED (BUT NOT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), OF IAE OR ITS AFFILIATES, STOCKHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, PERMITTED ASSIGNS AND AGENTS. |
4.8 | [***] |
4.9 | [***] |
4.10 | [***] |
4.11 | IAE and Spirit agree that credits issued to Spirit's account with IAE pursuant to any of the Warranties or Guarantees may be utilized for the purchase of goods and/or services from IAE. Notwithstanding the foregoing, Spirit may request IAE to pay credits issued under the Guarantees in cash, subject to: |
5. | Product Support Services |
5.1 | IAE will make available to Spirit the Product Support Services described in Exhibit C to this New Fleet Contract. Except when identified in such Exhibit C as being at additional cost or as requiring separate contractual arrangements, such Product Support Services shall be supplied at no additional charge to Spirit. IAE may delegate the performance of product support services to an affiliated company or any of IAE's shareholders. |
5.2 | Spirit will provide to any IAE customer support representative(s) working at its facility, free of charge: |
5.2.1 | reasonable, secure office accommodation including furniture and office equipment and |
5.2.2 | access to telephone, facsimile and secretarial services and |
5.2.3 | access to such first-aid and emergency assistance as is customarily provided to Spirit's own employees and |
5.2.4 | reasonable airfare, accommodations, and subsistence during any period in which the customer support representative(s) is required by Spirit to travel away from such customer support representative(s)' normal location at Spirit. |
6. | Miscellaneous |
6.1 | Delay in Delivery |
6.1.1 | If IAE is hindered or prevented from performing any obligation hereunder including but not limited to delivering any of the Supplies within the time for delivery specified in this New Fleet Contract (as such time may be extended pursuant to the provisions of this New Fleet Contract) by reason of: |
(a) | any cause beyond the reasonable control of IAE; |
(b) | fires, industrial disputes or introduction of essential modifications required by the Certification Authority; |
(c) | compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it proves to be invalid, except to the extent that the delay is caused by IAE's failure to act in conformity with applicable deadlines set forth in such governmental regulation or order; |
6.1.2 | If, by reason of any of the Excusable Delays embraced by Section 6.1.1 above, IAE is hindered or prevented from delivering any goods (that are the same as and include the Supplies) to purchasers (including Spirit) then IAE shall have the right to allocate in good faith such goods, as they become available, at its own discretion among all such purchasers and IAE shall not be under any liability whatsoever to Spirit for delay in delivery to Spirit resulting from such allocation by IAE and the time for |
6.1.3 | [***] |
6.1.4 | The right of Spirit to claim damages shall be conditional upon Spirit (i) notifying IAE of its claim in writing within [***] from the Claim Start Date, and (ii) submitting a written claim therefor within [***] from the Claim Start Date. |
6.1.5 | Should IAE delay performance of any obligation for a reason other than an Excusable Delay hereunder including but not limited to delivery of any item of the Supplies beyond [***] from the time for delivery specified in this New Fleet Contract (as such time may be extended pursuant to the provisions of this New Fleet Contract) then, in addition to the right of Spirit under Section 6.1.3, Spirit shall be entitled to terminate the order with respect to the affected item on giving IAE notice in writing. Upon receipt of such notice IAE shall be free from any obligation in respect of such item except that IAE shall refund to Spirit any deposits made in respect of the purchase price of such item of the Supplies. |
6.1.6 | No escalation shall apply during any period of delay unless such period of delay is caused by any of the causes specified in Clause 6.1.1. |
6.2 | Intellectual Property |
6.2.1 | In the event any suit, claim or action is brought against Spirit (or a person expressly indemnified by Spirit) alleging that, without further combination, Spirit's use or resale of (a) goods (b) a part made by or under IAE's control and in accordance with the specification or design provided by IAE or (c) a process embodied in the goods delivered to Spirit by IAE infringes any patents, IAE will, at its own expense, conduct the entire defense including any and all necessary court action, settlements, and appeals. IAE will either settle such claim or pay all damages and costs awarded in a non-appealable judgment, excluding indirect, incidental, special, consequential, and punitive damages. If the use or resale of such goods or part(s) is finally enjoined, IAE will, at its option: (a) procure for Spirit the right to use or resell such goods or parts; (b) replace such goods or parts with equivalent non-infringing parts; (c) modify such goods or parts so they become non-infringing but equivalent; or (d) remove such goods or part(s) and refund the purchase price (less a reasonable allowance for use, damage or obsolescence). |
6.2.2 | The preceding provision is applicable only if the following conditions are met: (a) the goods, part(s), services, or process involved in the suit, claim, or action must have been provided under this New Fleet Contract or during maintenance services in accordance with this New Fleet Contract or the New Engine Fleet FHA, as applicable; (b) the alleged infringement must be an infringement of any patents of the nation in which Spirit's principal place of business is located or a jurisdiction within which the relevant Supplies were manufactured or delivered to Spirit; (c) Spirit must provide IAE with timely notice of such suit, claim, or action and the full opportunity to assume the entire defense thereof; and (d) Spirit must provide IAE |
6.2.3 | For the avoidance of doubt, this provision will not apply to (a) any alleged patent infringement in any nation other than as specified above; (b) any Spirit-furnished specification or design or the performance of a process not recommended in writing by IAE; (c) any goods or parts or components thereof manufactured according to a non-IAE specification or design; (d) the use or sale of goods or parts delivered hereunder in combination with other goods not delivered to Spirit by IAE; or (e) any instance not specified in the preceding paragraphs. In such instances, Spirit will indemnify and hold IAE harmless. |
6.3 | [***] |
6.4 | Confidentiality |
6.5 | Taxes |
6.5.1 | Subject to Section 6.5.2 below, IAE shall pay all imposts, duties, fees, taxes and other like charges levied by any tax authority or any agency thereof in connection with the Supplies prior to their delivery. |
6.5.2 | All amounts stated to be payable by Spirit pursuant to this New Fleet Contract exclude any value added tax, sales tax or similar such tax. In the event that the supply of goods or services under this New Fleet Contract is chargeable to any value added tax, sales tax or similar tax, such tax will be borne by Spirit. To ensure so far as possible that Spirit is not charged with European Community value added tax ("VAT"), Spirit will within 30 days of signature hereof, inform IAE of its VAT Code (if any) for inclusion on IAE's invoices. |
6.5.3 | Spirit shall pay all other imposts, duties, fees, taxes and other like charges by whomsoever levied. |
6.5.4 | Notwithstanding the foregoing, Spirit shall have no liability to IAE for any tax or taxes levied on IAE in connection with its gross income, or any franchise, turn-over or other similar tax or any tax levied on IAE relating to its business activities generally and not specifically arising out of or in connection with the transactions contemplated hereby and any taxes to the extent the same would not have been imposed but for |
6.5.5 | If either IAE or Spirit becomes aware of any taxes set forth in this Section 6.5, the relevant Party shall promptly notify the other Party, and both parties agree to cooperate, consult in good faith and take such other reasonable steps in order to mitigate to the full extent permitted by law, any such tax.. |
6.6 | Amendment |
6.7 | Assignment |
6.8 | Insurance |
6.8.1 | IAE shall at its own cost and expense procure and maintain (or cause its subcontractors to procure and maintain) in full force and effect during the Period of Cover policies of insurance of the types and in the minimum amounts as stated below: [***] |
6.8.2 | [***] |
6.9 | Exhibits |
6.10 | Headings |
6.11 | Governing Law and Forum |
6.11.1 | This New Fleet Contract shall be subject to and interpreted and construed in accordance with the laws of the City of New York, Borough of Manhattan, State of New York, United States of America, without regard to its conflict of laws provisions other than Sections 5-1401 and 5-1402 of the New York General Obligations Law. The parties agree to exclude the application of the United Nations Convention on Contracts for the International Sale of Goods (1980). |
6.11.2 | The parties irrevocably submit to the exclusive jurisdiction of the state and federal courts sitting in the State of New York, United States of America, in connection with any suit, action or proceeding arising out of or relating to this Agreement and irrevocably waive to the fullest extent permitted by law, any objection to the laying of venue of any such suit, action or proceeding in any such court or any claim that any suit, action or proceeding has been brought in an inconvenient forum. Further, |
6.12 | Compliance with All Applicable Laws and Regulations |
6.12.1 | Export/Import Spirit agrees that it will not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any IAE goods, software, technical data (including products derived from or based on such technical data), or services received directly or indirectly from IAE to any Prohibited Party without obtaining prior authorization from the relevant government authorities as required pursuant to Export Laws. Failure to do so will result in IAE invoking its rights to terminate this New Fleet Contract per the provisions of Sections 6.15 and 6.16 below. |
6.12.2 | "Prohibited Parties" means, collectively, those countries, and persons to whom the sale, export, re-export, transfer, diversion or other disposition of any IAE goods, software, technical data or services is prohibited by the applicable export laws and related regulations of the United States, German, British, Japanese, or European Union Governments. |
6.12.3 | Other Laws and Regulations Each party agrees that it will not, by act or omission, violate any applicable law or regulation of the United States or any political subdivision thereof where the violation thereof would result in the other party being deemed to be in violation of such law or regulation or would otherwise result in a criminal or an un-indemnified civil penalty on the part of such other party. |
6.13 | Notices |
6.14 | Exclusion of Other Provisions and Previous Understandings |
6.14.1 | This New Fleet Contract (including all exhibits, schedules and appendices) together with the FHA and any Side Letter(s) contains the only provisions governing the sale and purchase of the Supplies and shall apply to the exclusion of any prior provisions on or attached to or otherwise forming part of any order form of Spirit, or any acknowledgment or acceptance by IAE, or of any other document that may be issued by either party relating to the sale and purchase of the Supplies. |
6.14.2 | The parties agree that neither of them have placed any reliance whatsoever on any representations, agreements, statements or understandings made prior to the signature of this New Fleet Contract, whether orally or in writing, relating to the Supplies, other than those expressly incorporated in this New Fleet Contract, which has been negotiated on the basis that its provisions represent their entire agreement relating to the Supplies and shall supersede all such representations, agreements, statements and understandings. |
6.15 | Conditions Precedent |
6.15.1 | A continuing event of default (taking into account any applicable grace period) by Spirit in (a) any payment due under this New Fleet Contract (including any exhibits and letter agreements thereto), or [***]; or |
6.15.2 | Any event that is a Termination Event or would be a Termination Event, but for lapse of time, shall have occurred and be continuing. |
6.16 | Termination Events |
6.16.1 | Any of the following shall constitute a "Termination Event" under this New Fleet Contract: |
(a) | Spirit commences any case, proceeding or other action with respect to Spirit or its property in any jurisdiction relating to bankruptcy, insolvency, reorganization, dissolution, liquidation, winding-up, or relief from, or with respect to, or readjustment of, debts or obligations; or |
(b) | Spirit seeks the appointment of a receiver, trustee, custodian or other similar official for Spirit for all or substantially all of its assets, or Spirit makes a general assignment for the benefit of its creditors; or |
(c) | Spirit otherwise becomes the object of any case, proceeding or action of the type referred to in the preceding Sections 6.16.1(a) or 6.16.1(b) that remains unstayed, undismissed or undischarged for a period of sixty (60) days; or |
(d) | An action is commenced against Spirit seeking issuance of a warrant of attachment, execution, distraint or similar process against all or |
(e) | A continuing event of default (taking into account any applicable grace period) by Spirit on any payment of principal or interest on any indebtedness hereunder or in the payment of any guarantee obligation hereunder [***]. |
(f) | Failure to take delivery of all of the Aircraft and Spare Engines in accordance with the delivery schedule set forth in Exhibit B, as amended, supplemented or modified from time to time. |
6.16.2 | Spirit shall have the option, at its sole discretion, to terminate this New Fleet Contract in whole or in part, upon the occurrence of any of the following events: |
(a) | IAE commences any case, proceeding or other action with respect to IAE or its property in any jurisdiction relating to bankruptcy, insolvency, reorganization, dissolution, liquidation, winding-up, or relief from, or with respect to, or readjustment of, debt or obligations; |
(b) | IAE seeks the appointment of a receiver, trustee, custodian, or other similar official for IAE for all or substantially all of its assets, or IAE makes a general assignment for the benefit of its creditors; |
(c) | IAE otherwise becomes the object of any case, proceeding or action of the type referred to in the preceding clauses (a) or (b) which remains unstayed, undismissed or undischarged for a period of sixty (60) days; |
(d) | An action is commenced against IAE seeking issuance of a warrant of attachment, execution, distraint or similar process against all or substantially all of its assets which remains unstayed, undismissed, or undischarged for a period of sixty (60) days; |
(e) | A continuing event of default (taking into account any applicable grace period) by IAE on any payment of principal or interest on any indebtedness hereunder or in the payment of any guarantee obligation hereunder or under any Spirit financing agreement with IAE for the Aircraft, [***]. |
6.17 | Effect of Termination |
6.18 | No Construction Against Drafter |
6.19 | Damages |
Agreed to and accepted on behalf of: IAE International Aero Engines AG | Agreed to and accepted on behalf of: Spirit Airlines, Inc. | |||||||||||||
By: | /s/ Rick Deurloo | By: | /s/ Charles A. Rue | |||||||||||
Name: | Rick Deurloo | Name: | Charles A. Rue | |||||||||||
Title: | SVP Sales | Title: | VP Supply Chain | |||||||||||
In the presence of: | In the presence of: | |||||||||||||
By: | /s/ Daniel Kirk | By: | /s/ Edward Christie | |||||||||||
Name: | Daniel Kirk | Name: | Edward Christie | |||||||||||
Title: | Sales Director | Title: | SVP & CFO |
Aircraft No. | Aircraft Model | Engine Model | Scheduled Delivery Date | ||||||||
1 | [***] | [***] | [***] | ||||||||
2 | [***] | [***] | [***] | ||||||||
3 | [***] | [***] | [***] | ||||||||
4 | [***] | [***] | [***] | ||||||||
5 | [***] | [***] | [***] | ||||||||
6 | [***] | [***] | [***] | ||||||||
7 | [***] | [***] | [***] | ||||||||
8 | [***] | [***] | [***] | ||||||||
9 | [***] | [***] | [***] | ||||||||
10 | [***] | [***] | [***] | ||||||||
11 | [***] | [***] | [***] | ||||||||
12 | [***] | [***] | [***] | ||||||||
13 | [***] | [***] | [***] | ||||||||
14 | [***] | [***] | [***] | ||||||||
15 | [***] | [***] | [***] | ||||||||
16 | [***] | [***] | [***] | ||||||||
17 | [***] | [***] | [***] | ||||||||
18 | [***] | [***] | [***] | ||||||||
19 | [***] | [***] | [***] | ||||||||
20 | [***] | [***] | [***] | ||||||||
21 | [***] | [***] | [***] | ||||||||
22 | [***] | [***] | [***] | ||||||||
23 | [***] | [***] | [***] | ||||||||
24 | [***] | [***] | [***] | ||||||||
25 | [***] | [***] | [***] | ||||||||
26 | [***] | [***] | [***] | ||||||||
27 | [***] | [***] | [***] | ||||||||
28 | [***] | [***] | [***] | ||||||||
29 | [***] | [***] | [***] | ||||||||
30 | [***] | [***] | [***] |
Spare Engine No. | Quantity | Engine Model | Scheduled Delivery Date | ||||||||
1 | 1 | [***] | [***] | ||||||||
2 | 1 | [***] | [***] | ||||||||
3 | 1 | [***] | [***] | ||||||||
4 | 1 | [***] | [***] |
Engine Model | Unit Base Price (Jan-12 US$) | ||||
V2524-A5 | [***] | ||||
V2527-A5 | [***] | ||||
V2533-A5 | [***] |
1. | Any unit base price or other sum expressed to be subject to escalation from the Base Month (as defined below) to month of delivery or other date of determination in accordance with the IAE Escalation Formula will be subject to escalation in accordance with the following formula: |
• | Readiness Program and planning prior to EIS |
• | Technical recommendations and information. |
• | Engine Maintenance Management Plans |
• | Refurbishment, Modification and Conversion program planning assistance. |
• | Coordination of customer repair, maintenance and logistics requirements with the appropriate Product Support functional groups. |
• | Assist with critical engine warranty/service policy claims. |
• | 24 Hour Support |
• | Maintenance Action Recommendations |
• | Daily Reporting on Engine Technical Situations |
• | On-The-Job Training |
• | Service Policy Preparation Assistance |
• | Prompt Communication with IAE |
• | Technical Training at Purpose Built Facilities |
• | On-site Technical Training |
• | Technical Training Consulting Service |
• | Training Aids and Materials |
• | Engine construction features internal and external hardware. |
• | Engine systems operation, major components accessibility for removal/replacement. |
• | Operational procedures |
• | Performance characteristics |
• | Maintenance concepts, repair and replacement requirements and special tooling. |
• | Engine Description |
• | Systems Operation |
• | Applied Performance |
• | Ground Operations |
• | Troubleshooting Procedures |
• | Practical Phase Line Maintenance Tasks |
• | Engine Description Overview |
• | Engine Systems Overview |
• | Heavy Maintenance Tasks |
• | Course duration and "hands-on" coverage are contingent on the availability of an engine and required tooling. |
• | A pooling and exchange of service experience for the benefit of the entire airline industry. |
• | A common statistical base. |
• | The selective querying of computer data files for answers to Spirit's inquiries. |
• | Engine Warranty Services |
• | Maintenance Support |
• | Lease Engine Program |
• | Engine Reliability and Economic Forecasts |
• | Logistic Support Studies |
• | Prompt administration of claims concerning Engine Warranty, Service Policy, other support programs and Guarantee Plans. |
• | Investigation of part condition and part failure. |
• | Material provisioning administration for Controlled Service Use programs and other material support. |
• | - General Maintenance Facility Planning Publications |
• | - Customized Facility Plans |
• | - Maintenance Facility and Test Cell Planning Consultation Services |
• | Technical Services |
• | Powerplant Maintenance |
• | Customer Performance |
• | Diagnostic Systems |
• | Human Factors |
• | Flight Operations |
• | Repair Services |
• | Tooling and Support Equipment Services |
• | Technical Publications |
• | Technical Problem Identification/Corrective Action |
• | Implementation |
• | Technical Communication |
• | Engine Conversion Program Definition and Management |
• | Engine Upgrade and Commonality Studies |
• | Engine Incident Investigation Assistance |
• | Definition of Maintenance Tasks and Resource Requirements |
• | Planning Guides |
• | Engine Performance Analysis Computer Programs for Test Cell Use |
• | Test Cell Correlation Analysis and Correction Factors |
• | Engine Stability Procedures and Problem Analysis |
• | Guidance to help Spirit define their engine monitoring system requirements. |
• | Development of hardware specifications and computer programs (by separate contractual arrangement) to satisfy engine diagnostic requirements. |
• | Coordination of all IAE airborne diagnostic support activity. |
• | Introduction of new equipment |
• | Problem resolution and assistance with in-service equipment |
• | Contractual commitment and development program support |
• | Publication of engine operations literature and performance aids |
• | Coordinated Repair Development Activity |
• | Customer Assistance on Repair Procedures and Techniques |
• | Qualification of Repair Sources |
• | Repair Workshops |
• | Repair Development List |
• | Support Equipment Manufacturing/Procurement Documentation |
• | Engine Accessory Test Equipment and Engine Transportation Equipment Specifications |
• | Support Equipment Logistics Planning Assistance |
4.8.2 | Engine Accessory Test Equipment and Engine Transportation Equipment Requirements: |
4.9 | TECHNICAL PUBLICATIONS |
• | Identification of major engine and nacelle components by part number, serial number and ATA - location. |
• | Engine Test Acceptance Certificate. |
• | List of all incorporated serialized parts by part number, serial number and ATA - Location. This list also includes an Industry Item List to identify specific parts by part number, serial number and ATA - Location which the airline customer may choose to monitor during the engine operational life. The parts listed represent approximately 80% of engine total value. |
• | List of all incorporated life limited parts by part number, serial number and ATA - location. |
• | List of all Service Bulletins that were incorporated during initial build of each new engine. |
• | - Individual Customer Account Representatives |
• | - Provisioning |
• | - Planning |
• | - Order Administration |
• | - Spare Parts Inventory |
• | - Effective Expedite Service |
• | - Worldwide Distribution |
• | Aircraft-On-Ground (AOG) - within four hours (in these instances every effort is made to ship immediately). |
• | Critical (Imminent Aircraft-On-Ground (AOG) or Work Stoppage) -- Within 24 hours. |
• | Stock Outage -- Within seven working days (these items are shipped as per Spirit's request). |
• | Forecasts of life limited parts requirements are requested and received semi-annually from major customers. Based on the size of Spirit's order, Spirit shall be considered a major customer. |
• | Engine technical conferences are held frequently within IAE to assess the impact of technical problems on parts. |
• | For a selected group of parts a provisioning conference system is offered which considers actual part inventory change, including usage and receipts, as reported monthly by participating customers. |
SUBJECT: | SIDE LETTER NO. 1 TO THE V2500-A5 GENERAL TERMS OF SALE BETWEEN IAE INTERNATIONAL AERO ENGINES AG AND SPIRIT AIRLINES, INC., DATED OCTOBER 1, 2013 |
A. | Spirit has entered into a purchase agreement with Airbus to acquire thirty (30) new A320 aircraft powered by new V2500-A5 engines (the "Aircraft"); |
B. | Spirit has entered into the New Fleet Contract with IAE in support of Spirit's agreement to acquire the Aircraft and to purchase V2500 spare parts and the Spare Engines in support of its operation of the Aircraft; and |
C. | The Parties desire to amend, supplement or replace certain provisions of the New Fleet Contract and agree to the terms hereof pursuant to which IAE shall provide certain financial and technical assistance to Spirit in support of Spirit's selection of the V2500 engine to power its Aircraft, and in support of the integration of the Aircraft into its fleet and pursuant to which certain provisions of the New Fleet Contract are amended, supplemented or replaced in accordance with the provisions hereof. |
1. | Fleet Introductory Assistance Credits |
1.1 | In consideration of Spirit's agreement to purchase the Aircraft and to assist Spirit with the introduction of the Aircraft into its fleet, IAE shall issue credit notes to Spirit's account with IAE in the following amounts (each an "FIA Credit"): |
Aircraft Type | Credit (Jan-12 US$) | Issued at Delivery & Acceptance of: | ||||||
A319 (V2524-A5) | [***] | Each V2524-A5 powered Aircraft | ||||||
A320 (V2527-A5) | [***] | Each V2527-A5 powered Aircraft | ||||||
A321 (V2533-A5) | [***] | Each V2533-A5 powered Aircraft |
1.2 | Each FIA Credit will be issued upon delivery to Spirit of the corresponding Aircraft. Spirit agrees to provide IAE with written notice confirming acceptance of the corresponding Aircraft promptly after acceptance. |
1.3 | Spirit agrees that IAE will assign all of the applicable FIA Credit to Airbus, to be applied toward the payment for the Engines for the corresponding Aircraft. Application of the applicable FIA Credit from IAE by Airbus on behalf of Spirit prior to or simultaneously with delivery of the corresponding Aircraft shall, for the purposes of this Side Letter No. 1, be deemed confirmation of Spirit's acceptance of that Aircraft. In the event any FIA Credit or portion thereof under this Section 1 is assigned to Airbus, Spirit agrees that the applicable FIA Credit shall not vest in Airbus until delivery to Spirit of the respective Aircraft. In the event Spirit does not accept delivery of the corresponding Aircraft, Spirit agrees to promptly reimburse or cause Airbus to reimburse to IAE any amounts paid by IAE to Airbus on behalf of Spirit. |
2. | Spare Engine Pricing Credits |
2.1 | In consideration of Spirit's purchase of the Spare Engines in accordance with the New Fleet Contract, and to assist Spirit with such purchase, IAE shall credit Spirit's account in accordance with the following amount for the corresponding Spare Engine (each a "Spare Engine Credit"): |
Engine Type | Credit (Jan-12 US$) | Issued on Delivery & Acceptance of: | ||||||
V2524-A5 | [***] | Each V2524-A5 Spare Engine | ||||||
V2527-A5 | [***] | Each V2527-A5 Spare Engine | ||||||
V2533-A5 | [***] | Each V2533-A5 Spare Engine |
2.2 | [***] |
2.3 | Each Spare Engine Credit [***] shall be issued upon delivery to Spirit of the corresponding Spare Engine. Spirit agrees to provide IAE with written notice confirming acceptance of the corresponding Spare Engine promptly after acceptance. |
2.4 | Each Spare Engine Credit shall be used by Spirit for payment against the corresponding spare Engine invoice. [***]. |
2.5 | [***] |
2.6 | Upon written notice from Spirit, IAE will issue all or part of a Spare Engine Credit directly to Spirit as a cash payment provided that IAE has received full payment for the relevant Spare Engine. |
3. | Spare Parts and Tooling Credits |
3.1 | To assist Spirit with the procurement of V2500 spare Parts in support of the Aircraft, IAE shall credit Spirit's account with IAE in the fixed amount of [***] (the "Spare Parts and Tooling Credit"). |
3.2 | The Spare Parts and Tooling Credit will be issued upon delivery to and acceptance by Spirit of the first Aircraft. Spirit agrees to provide IAE with written notice confirming acceptance of the corresponding Aircraft promptly after acceptance. |
3.3 | The Spare Parts and Tooling Credit shall be used by Spirit for the payment of IAE invoices for V2500 Spare Parts, Modules, and tooling from IAE. |
4. | Credit and Engine Pricing Escalation |
4.1 | The FIA Credits, Spare Engine Credits [***], referenced in Sections 2 and 3 above, are subject to escalation in accordance with the IAE Escalation Formula set forth in Exhibit B-3 to the New Fleet Contract, and shall be escalated from a base month of January 2012 (the "Base Month") to the earlier of the applicable scheduled delivery date as set forth in Exhibit B-1 (and B-2 if applicable) of the New Fleet Contract or the actual delivery date of the applicable Aircraft or Spare Engine (the "Base Escalated Credit"). [***] |
4.2 | [***] |
4.3 | [***] |
4.4 | [***] |
4.5 | Upon delivery of each Aircraft, IAE will, as of the respective dates of delivery of each of the Aircraft delivered to Spirit, calculate the difference (if any) between: |
(a) | The Deemed Shipset Price (as defined below) escalated in accordance with Section 4.1 above; minus |
(b) | The Deemed Shipset Price escalated in accordance with Section 4.1 above and capped in accordance with Section 5.2 above. |
Aircraft Type | Deemed Shipset Price (Jan-12 US$) | ||||
A319 (V2524-A5) | [***] | ||||
A320 (V2527-A5) | [***] | ||||
A321 (V2533-A5) | [***] |
4.6 | IAE agrees that the credits provided to herein Spirit shall not expire provided that: (i) the New Fleet Contract remains in full force and effect, (ii) the credits have not been applied to overdue amounts arising under the New Fleet Contract or the New Fleet FHA under rights of set off and (iii) Spirit continues to operate at least one (1) Aircraft. |
5. | Aircraft Type [***] |
5.1 | The financial support described in this Side Letter No.1 is predicated upon delivery to Spirit of the specific quantities and models of Aircraft and Spare Engines as listed in the delivery schedule set forth as Exhibit B-1 of the New Fleet Contract, as the same may be modified from time to time. |
5.2 | [***] |
5.3 | [***] |
6. | [***] |
7. | [***] |
8. | [***] |
8.1 | Clause 6.3 of the New Fleet Contract, [***], is deleted in its entirety and replaced with the following: |
"6.3 | [***] |
6.3.1. | [***] |
6.3.2. | [***] |
6.3.3 | [***] |
6.3.4 | [***] |
6.3.2 | For the avoidance of doubt, IAE's rights under this paragraph are in addition to all other rights and remedies IAE may have available under this New Fleet Contract or under law with regard to any failure to take delivery of the Firm Items in accordance with the schedules described in to the Contract, as amended, supplemented or modified from time to time. |
6.3.3 | IAE shall have the right to set off credits from time to time made available by IAE under the New Fleet Contract either directly to Spirit or via Airbus or its subsidiaries and affiliates, in respect of the failure by Spirit, after any applicable grace period, to cure any payment default which is continuing under (i) the New Fleet Contract or [***], or (iii) the Fleet Hour Agreement." |
9. | [***] |
10. | [***] |
11. | Thrust Rating Flexibility |
11.1 | [***] |
11.2 | [***] |
11.3 | The thrust flexibility as provided under this Section 11.3 is personal to Spirit and may not be transferred or assigned by Spirit. Prior to selling, transferring or otherwise disposing (including lease return) of any V2500 Engine, other than a sale leaseback transaction following which Spirit continues to operate the Engine, Spirit shall revert such Engine to the thrust rating at which IAE, originally delivered the Engine (the "Original Thrust Rating") through the removal of the multi-rated data plate and the replacement of the original single rated plate. |
11.4 | If Spirit sells, transfers or otherwise disposes of any V2500 Engine (other than a sale leaseback or similar transaction following which Spirit continues to operate the V2500 Engine) without restoring such Engine to its Original Thrust Rating and returning any multi-rated data plate to IAE. Spirit shall pay to IAE [***]. |
11.5 | IAE and Spirit agree to make reasonable adjustments to the Existing Fleet FHA to account for the V2500 Engine thrust flexibility set forth in this Section 11. |
12. | Customer Support |
12.1 | Training |
12.2 | Technical Publications |
12.3 | Customer Support Manager |
(a) | Readiness Program and planning prior to EIS; |
(b) | Technical recommendations and information; |
(c) | Engine Maintenance Management Plans; |
(d) | Refurbishment, Modification and Conversion program planning assistance; |
(e) | Coordination of customer repair, maintenance and logistics requirements with the appropriate Product Support functional groups; and |
(f) | Assist with critical engine warranty/service policy claims. |
12.4 | Customer Support Representative |
(a) | 24 Hour Support; |
(b) | Maintenance Action Recommendations; |
(c) | Daily Reporting on Engine Technical Situations; |
(d) | On-The-Job Training; |
(e) | Service Policy Preparation Assistance; and |
(f) | Prompt Communication with OEM |
13. | Assignment |
13.1 | Clause 6.7 of the New Fleet Contract, Assignment, is deleted in its entirety and replaced with the following: |
"6.7.1 | Except as otherwise agreed herein, Spirit may not assign in whole or part any of its rights or obligations under the New Fleet Contract without the written consent of IAE (such consent not to be unreasonably withheld). |
6.7.2 | [***] |
6.7.3 | [***] |
6.7.4 | [***] |
6.7.5 | [***] |
6.7.6 | IAE may, without recourse, assign its rights and/or delegate its obligations under this Agreement to any subsidiary or affiliate of IAE or United Technologies Corporation, or in connection with a merger, consolidation, reorganization, or voluntary sale or transfer of its assets; provided that such assignee/delegate is: (i) solvent at the time of such transfer and (ii) authorized by the applicable regulatory authorities, as necessary, to perform or procure the performance of all obligations being delegated/assigned; and (iii) able, in IAE's sole, reasonable discretion, to make all payments required by IAE to be made to Spirit under the New Fleet Contract." |
14. | Miscellaneous |
14.1 | Entire Agreement; Conflicts |
14.2 | Amendment |
14.3 | Proprietary Information |
14.4 | Governing Law |
14.5 | Counterparts |
Agreed to and accepted on behalf of: IAE International Aero Engines AG | Agreed to and accepted on behalf of: Spirit Airlines, Inc. | |||||||||||||
By: | /s/ Rick Deurloo | By: | /s/ Edward Christie | |||||||||||
Name: | Rick Deurloo | Name: | Edward Christie | |||||||||||
Title: | SVP Sales | Title: | SVP & CFO | |||||||||||
Date: | 10/2/13 | Date: | 10/1/13 |
SUBJECT: | SIDE LETTER NO. 2 TO THE V2500-A5 GENERAL TERMS OF SALE BETWEEN IAE INTERNATIONAL AERO ENGINES AG AND SPIRIT AIRLINES, INC., DATED OCTOBER 1, 2013 |
A. | Spirit has entered into a purchase agreement with Airbus to acquire fifteen (15) new A321 aircraft powered by new V2500-A5 engines (the "Incremental Aircraft"), incremental to the thirty (30) A320 aircraft powered by new V2500-A5 engines that Spirit ordered under the New Fleet Contract (the "Original Aircraft"); and |
B. | To support the Incremental Aircraft, Spirit shall acquire, by purchase or lease from IAE, two (2) new V2533-A5 Spare Engines (the "Incremental Spare Engines") that are incremental to the four (4) Firm Spare Engines that Spirit ordered under the New Fleet Contract (the "Original Spare Engines"); and |
C. | The Parties desire to enter into an agreement on the Incremental Aircraft and the Incremental Spare Engines (if Spirit elects to purchase, rather than lease, the Incremental Spare Engines), on similar terms to those relating to the Original Aircraft and Original Spare Engines; and |
D. | The Parties desire to amend, supplement or replace certain provisions of the New Fleet Contract and agree to the terms hereof pursuant to which IAE shall provide certain financial and technical assistance to Spirit in support of Spirit's selection of the V2500 engine to power its Incremental Aircraft, and in support of the integration of the Aircraft into its fleet and pursuant to which certain provisions of the New Fleet Contract are amended, supplemented or replaced in accordance with the provisions hereof. |
1. | Definitions |
"1.11 | "Spare Engine" shall mean the Firm Spare Engines as defined in Section 2.2.1 and any additional new Spare Engines to be purchased in accordance with Section 2.2.2." |
2. | Fleet Introductory Assistance Credits |
3. | Credit and Engine Pricing Escalation |
4. | Spare Engines |
"2.2.2 | Spirit, at its option, may also purchase up to two (2) additional new V2533-A5 Spare Engines (the "Option Spare Engines") on firm order with IAE, provided that Spirit gives written notice to IAE at least [***] prior to the delivery date for each such Option Spare Engine as set forth in Exhibit B-2, as the same may be amended, supplemented and/or updated from time to time. IAE and Spirit shall promptly amend this Contract to revise Exhibit B-2 to reflect the firm order of Option Spare Engines from IAE." |
5. | Enhanced Service Policy |
6. | Aircraft Cancellation, Credit Reimbursement and Right of Set-Off |
7. | Engine Upgrades and Post Delivery Improvements |
8. | [***] |
9. | Thrust Rating Flexibility |
10. | New Fleet - Aircraft and Spare Engine Delivery Schedule |
11. | New Fleet - Spare Engine Delivery Schedule |
12. | Miscellaneous |
12.1 | Entire Agreement; Conflicts |
12.2 | Amendment |
12.3 | Proprietary Information |
12.4 | Governing Law |
12.5 | Counterparts |
Agreed to and accepted on behalf of: IAE International Aero Engines AG | Agreed to and accepted on behalf of: Spirit Airlines, Inc. | |||||||||||||
By: | /s/ Rick Deurloo | By: | /s/ Edward Christie | |||||||||||
Name: | Rick Deurloo | Name: | Edward Christie | |||||||||||
Title: | SVP Sales | Title: | SVP & CFO | |||||||||||
Date: | 10/2/13 | Date: | 10/2/13 |
Aircraft No. | Aircraft Model | Engine Model | Scheduled Delivery Date | ||||||||
1 | [***] | [***] | [***] | ||||||||
2 | [***] | [***] | [***] | ||||||||
3 | [***] | [***] | [***] | ||||||||
4 | [***] | [***] | [***] | ||||||||
5 | [***] | [***] | [***] | ||||||||
6 | [***] | [***] | [***] | ||||||||
7 | [***] | [***] | [***] | ||||||||
8 | [***] | [***] | [***] | ||||||||
9 | [***] | [***] | [***] | ||||||||
10 | [***] | [***] | [***] | ||||||||
11 | [***] | [***] | [***] | ||||||||
12 | [***] | [***] | [***] | ||||||||
13 | [***] | [***] | [***] | ||||||||
14 | [***] | [***] | [***] | ||||||||
15 | [***] | [***] | [***] | ||||||||
16 | [***] | [***] | [***] | ||||||||
17 | [***] | [***] | [***] | ||||||||
18 | [***] | [***] | [***] | ||||||||
19 | [***] | [***] | [***] | ||||||||
20 | [***] | [***] | [***] | ||||||||
21 | [***] | [***] | [***] | ||||||||
22 | [***] | [***] | [***] | ||||||||
23 | [***] | [***] | [***] | ||||||||
24 | [***] | [***] | [***] | ||||||||
25 | [***] | [***] | [***] | ||||||||
26 | [***] | [***] | [***] | ||||||||
27 | [***] | [***] | [***] | ||||||||
28 | [***] | [***] | [***] | ||||||||
29 | [***] | [***] | [***] | ||||||||
30 | [***] | [***] | [***] | ||||||||
31 | [***] | [***] | [***] | ||||||||
32 | [***] | [***] | [***] | ||||||||
33 | [***] | [***] | [***] | ||||||||
34 | [***] | [***] | [***] | ||||||||
35 | [***] | [***] | [***] | ||||||||
36 | [***] | [***] | [***] | ||||||||
37 | [***] | [***] | [***] | ||||||||
38 | [***] | [***] | [***] |
39 | [***] | [***] | [***] | ||||||||
40 | [***] | [***] | [***] | ||||||||
41 | [***] | [***] | [***] | ||||||||
42 | [***] | [***] | [***] | ||||||||
43 | [***] | [***] | [***] | ||||||||
44 | [***] | [***] | [***] | ||||||||
45 | [***] | [***] | [***] |
Firm Spare Engines | |||||||||||
Spare Engine No. | Quantity | Engine Model | Scheduled Delivery Date | ||||||||
1 | 1 | [***] | [***] | ||||||||
2 | 1 | [***] | [***] | ||||||||
3 | 1 | [***] | [***] | ||||||||
4 | 1 | [***] | [***] |
Option Spare Engines | |||||||||||
Option Spare Engine No. | Quantity | Engine Model | Scheduled Delivery Date | ||||||||
1 | 1 | [***] | [***] | ||||||||
1 | 1 | [***] | [***] |
Engine Model | Unit Base Price (Jan-12 US$) | ||||
V2524-A5 | [***] | ||||
V2527-A5 | [***] | ||||
V2533-A5 | [***] |
Exhibit A | 23 | ||||
Aircraft and Spare Engine Delivery Schedules | |||||
Exhibit B | 27 | ||||
FHA Escalation Formula | |||||
Exhibit C | 28 | ||||
Accessories | |||||
Exhibit D | 29 | ||||
V2500 Turbofan Engine Model Specifications | |||||
Exhibit E | 30 | ||||
Powerplant Description | |||||
Exhibit F | 32 | ||||
Addresses | |||||
Exhibit G | 33 | ||||
Engine Monitoring Services | |||||
Exhibit H | 36 | ||||
Excess Work Rates | |||||
Exhibit I | 37 | ||||
FHA Rate Adjustment Tables |
IAE INTERNATIONAL AERO ENGINES AG | A joint stock company organized and existing under the laws of Switzerland, with a place of business at 400 Main Street, M/S 121-10, East Hartford, CT 06108 (hereinafter called "IAE"). | ||||
AND | |||||
SPIRIT AIRLINES, INC. | A corporation organized and existing under the laws of Delaware, with a place of business at 2800 Executive Way, Miramar, Florida 33025 (hereinafter called "Spirit"). | ||||
Each a "Party" and together the "Parties". |
A. | As of the date hereof, (i) Spirit has acquired, leased or firmly ordered an aggregate of sixty-eight (68) new Airbus A320 family aircraft as described in Exhibit A, all powered by, or to be powered by, V2500-A5 engines, (ii) Spirit has acquired or firmly ordered an aggregate of eleven (11) new V2500-A5 spare engines from IAE all of which are or will be operated by Spirit and (iii) Spirit has the option to purchase a further four (4) new V2500-A5 spare engines from IAE; |
B. | IAE and Spirit have entered into a Fleet Hour Agreement dated April 11, 2005 for the provision of certain off-wing maintenance for the V2500-A5 engines operated by Spirit (the "2005 FHA"); |
C. | Spirit and IAE subsequently signed the V2500 Propulsion System and FHA Proposal dated October 27, 2006, as amended from time to time, which outlines the financial support and support services for Spirit's incremental order for A320 family aircraft powered by V2500-A5 engines and order for V2500-A5 spare engines (the "2006 Proposal"); |
D. | IAE and Spirit have entered an Amended and Restated V2500® General Terms of Sale dated October 1, 2013, as amended from time to time, including all side letters and amendments thereto, for the provision of V2500-A5 engines, modules, spare parts, tools, equipment, and product support services for the support and operation of certain V2500-A5 engines (the "Existing Fleet GTA") |
E. | IAE and Spirit hereby agree to replace in its entirety the 2005 FHA with this Agreement, which shall incorporate the applicable terms and conditions for off-wing maintenance support contained in the 2006 Proposal; and |
F. | IAE and Spirit now wish to agree upon terms whereby IAE shall arrange for, manage and subcontract certain maintenance of the Eligible Engines as defined herein. |
1. | Definitions |
1.1 | "Accessory" or "Accessories" includes those items listed in Exhibit C to this Agreement. |
1.2 | "Airbus" shall mean Airbus SAS. |
1.3 | "Aircraft" shall mean all or each of the: (i) forty (40) A320 family aircraft powered by V2500-A5 engines in-service in Spirit's fleet as of the date of this Agreement already delivered as described in the schedule set forth in Exhibit Ahereto (the "Existing Aircraft") and (ii) twenty-eight (28) new Airbus 320 family aircraft powered by V2500-A5 engines to be delivered in accordance with the schedule set forth in Exhibit A hereto, as may be mutually agreed to be amended, supplemented or otherwise modified from time to time (the "Firm Aircraft"). |
1.4 | "Aircraft Maintenance Manual" or "AMM" means the aircraft maintenance manual published by Airbus for the Aircraft. |
1.5 | "Airworthiness Directive" shall mean any applicable airworthiness directive issued by the Aviation Authority based on certification rules current as of the date of this Agreement. |
1.6 | "Aviation Authority" shall mean the FAA. |
1.7 | "Beyond Economic Repair" shall mean wear, tear or damage to an item of Eligible Equipment beyond economic repair. |
1.8 | "BFE Item" shall mean those items listed as such in Exhibit E of this Agreement. |
1.9 | "Business Day(s)" shall mean a day other than a Saturday, Sunday or holiday scheduled by law for commercial banking institutions in the city of New York, New York, United States. |
1.10 | "Day" means a calendar day. |
1.11 | "EBU Item" shall mean those items listed as such in Exhibit E to this Agreement originally installed on the Eligible Engines or acquired new and dedicated solely for the support of Eligible Engines. |
1.12 | "Eligible Engine(s)" shall mean the new Engines originally installed on the Aircraft and the Spare Engines. Exhibit A to this Agreement identifies the Eligible Engines by serial number and will be updated from time to time to: (i) add Eligible Engines and serial numbers as Spirit takes delivery of the Aircraft and the Spare Engines and (ii) to remove Eligible Engines in accordance with Section 11 hereto. |
1.13 | "Eligible Engine Flight Cycles" [***]. |
1.14 | "Eligible Engine Flight Hours" [***]. |
1.15 | "Eligible Equipment" shall mean Eligible Engines. |
1.16 | "Eligible Removal" shall mean [***]. |
1.17 | "Engine(s)" shall mean the basic IAE V2500-A5 turbofan engine, described in the V2500 Turbofan Engine Model Specification(s) set forth in Exhibit D of the Agreement, and which excludes Accessories, EBU Items, QEC Items and Nacelle Items. |
1.18 | "Engine Manual" shall mean the IAE document which sets forth the requirements for Engine off-wing repair. |
1.19 | "Excess Work" shall mean work undertaken by the Maintenance Center during a Shop Visit pursuant to this Agreement, which is further described in Section 8 of this Agreement. |
1.20 | "FAA" shall mean the United States Federal Aviation Administration. |
1.21 | "Failure" shall mean [***]. |
1.22 | "FHA" shall mean this Fleet Hour Agreement. |
1.23 | "FHA Administration Manual" means the logistical plan and instructions described in Section 7 of this Agreement. |
1.24 | "FHA Manager" shall mean the manager provided by IAE for the support of the operation of this Agreement in accordance with the provisions of Section 7.3 of this Agreement. |
1.25 | "FHA Rate(s)" shall mean the rate(s) collectively as set forth in Section 10 below. |
1.26 | "Foreign Object Damage" shall mean[***]. |
1.27 | "Line Maintenance" shall mean any work required to be carried out on an Engine in accordance with the appropriate Aircraft Maintenance Manuals and which can be accomplished either on-wing or off-wing without requiring the induction of such Engine into a Maintenance Center. |
1.28 | "Life Limited Parts" or "LLPs" shall mean the Parts identified in Chapter 5 of the V2500-A5 Engine Manual as having specific life limits. |
1.29 | "Maintenance Center" shall mean the IAE shareholder maintenance center designated by IAE in consultation with Spirit, from time to time to perform services under this Agreement and which is approved by the Aviation Authority as a certified repair station. |
1.30 | "Maintenance Management Plan", "MMP" or "eMMP" shall mean the then-current V2500 engine maintenance planning document described in Section 7 of this Agreement. |
1.31 | "Miscellaneous Shop Visit" shall mean [***]. |
1.32 | "Nacelle Items" shall mean those items listed in Exhibit E as "DPP" (demountable power plant) items or "PP" (positionalized power plant) items originally installed on the Eligible Engines or acquired new and dedicated solely for the support of Eligible Engines. |
1.33 | "Part(s)" shall mean [***]. |
1.34 | "Period of Cover" shall mean the period in which IAE agrees to provide the services pursuant to this Agreement, as set out in Section 3 of this Agreement. |
1.35 | "QEC Item" shall mean those items listed as such in Exhibit E to this Agreement originally installed on the Eligible Engines or acquired new and dedicated solely for the support of Eligible Engines. |
1.36 | "Restoration Shop Visit" or "RSV" shall mean [***]. |
1.37 | "Service Bulletin(s)" shall mean those V2500 service bulletins issued by IAE that are designated as "target" service bulletins in the MMP. |
1.38 | "Shop Visit" shall mean a Restoration Shop Visit or a Miscellaneous Shop Visit. |
1.39 | "Spare Engine(s)" shall mean all or each of the eleven (11) new V2500-A5 firmly ordered spare Engines either purchased or to be purchased by Spirit from IAE and the four (4) option spare Engines which Spirit has the right to purchase from IAE, already delivered or to be delivered in accordance with the schedule set forth in Exhibit A of this Agreement. |
1.4 | "Testable Engine" shall mean [***]. |
1.41 | "Transportation Coverage" shall mean the services provided to Spirit under Section 6 of this Agreement. |
1.42 | "Workscope" shall mean an IAE written repair request to the Maintenance Center(s) compliant with the MMP, approved by Spirit, such approval not to be unreasonably withheld, that authorizes the Maintenance Center(s) to undertake work on Eligible Equipment. |
2. | FHA Services |
2.1 | Engine Shop Visit Coverage in accordance with the terms of Section 4 |
2.2 | Lease Engine Coverage in accordance with the terms of Section 5. |
2.3 | Transportation Coverage in accordance with the terms of Section 6. |
2.4 | General FHA Services in accordance with the terms of Section 7. |
2.5 | Excess Work as required in accordance with the terms of Section 8. |
3. | Period of Cover |
4. | Shop Visit Coverage |
4.1 | [***]. |
4.2 | IAE will use commercially reasonable efforts to provide the following documentation to Spirit following the release of an Eligible Engine from a Maintenance Center following a Restoration Shop Visit: |
4.2.1 | [***]; |
4.2.2 | [***]; and |
4.2.3 | any Excess Work invoices arising from such Eligible Engine's Restoration Shop Visit as soon as practicable but no later than [***], if applicable. |
4.3 | IAE's obligations for an Engine Shop Visit caused by Foreign Object Damage shall be limited to the provision of repair work and Parts provided through the Maintenance Center to a maximum of [***] per event [***]. |
5. | Lease Engine Support |
5.1 | IAE agrees to provide a serviceable lease Engine (in the QEC configuration as defined in the lease Engine technical records which are made available to Spirit at the time of lease Engine offer) for use by Spirit in the event that (i) an Eligible Shop Visit occurs, and (ii) Spirit's Spare Engines are unavailable due to support of another Eligible Shop Visit and no other Eligible Engines are available for such support. IAE will identify a lease Engine and use its reasonable endeavors to dispatch such Engine within 24 hours of notification of the requirement, but in any event shall endeavor to dispatch the Engine as soon as possible. Such Engine(s) will be provided subject to IAE's standard short term engine lease agreement for V2500 Engines (IATA Master Short Term Lease Agreement, form 5016 00 ("IATA Agreement")), except that the daily fee for such lease Engine will be waived. Should Spirit require a spare Engine to support a non-Eligible Shop Visit or that does not otherwise meet the above conditions, all terms of the IATA Agreement, including all applicable rates, charges and fees, shall apply. In the event IAE cannot provide an Engine as set forth herein Spirit shall have the right to lease an Engine from a third party. In such case, IAE shall reimburse Spirit for the direct and actual reasonable daily lease charges for such Engine lease up to maximum of [***] of the then current applicable IAE daily fee for lease Engines. |
5.2 | [***] |
5.3 | Unless otherwise determined by the FHA manager, acting reasonably, Spirit is to return the IAE lease Engine within [***] after Spirit's Engine is returned to Spirit in accordance with Section 6.2 and such Engine is available for installation at Spirit's facilities. Also, in the event that Spirit has leased an Engine from a third party as set forth in Section 5.1 above, IAE's obligation to reimburse Spirit for the direct and actual reasonable cost for such Engine lease shall terminate [***] after Spirit's Engine is returned to Spirit in accordance with Section 6.2 and such Engine is available for installation at Spirit's facilities. |
6. | Transportation |
6.1 | Spirit shall deliver Eligible Engines to IAE in a Testable Engine configuration and the Accessories related to such Eligible Engines shall be in a serviceable condition. |
6.2 | [***] |
6.3 | [***] |
6.4 | [***] |
6.5 | [***] |
6.6 | [***] |
7. | General Fleet Hour Agreement Services |
7.1 | IAE shall supply Spirit with a V2500-A5 electronic Maintenance Management Plan that shall establish the maintenance requirements including LLP management, incorporation of applicable Service Bulletins and Aviation Authority Airworthiness Directive requirements and Eligible Engine removal planning ("MMP"). The MMP shall be revised and updated at least once a year, taking into account Spirit's then-current operation in consultation with Spirit and fleet-wide operational experience, among other considerations. Additionally, an FHA Administration Manual may be mutually agreed between the parties, which shall establish a logistical plan and instructions for Spirit to facilitate performance by Spirit and IAE under this Agreement. |
7.2 | Engine monitoring data program services set forth in Exhibit G; |
7.3 | an FHA Manager based at IAE's offices who shall be the point of contact for Spirit, twenty four (24) hours per day seven (7) days per week, in respect of the services described in this Agreement. The following responsibilities of IAE shall normally be undertaken by the FHA Manager: |
8. | Excess Work |
8.1 | Any costs incurred by IAE or the Maintenance Center not covered under this Agreement shall be Excess Work and shall be paid for by Spirit in accordance with Section 10.4 of this Agreement. Excess Work shall include any labor, material and other charges for Eligible Engines that arise from the following: |
8.2 | In the event IAE, following consultation with Spirit, determines that an Eligible Engine requires a Shop Visit that will be considered entirely to be Excess Work, then the IAE FHA Manager shall so notify Spirit and IAE shall perform such work. |
8.1 | [***] |
8.2 | [***] |
8.3 | [***] |
9. | Obligations of Spirit |
9.1 | Data and Procedures |
9.1.1 | maintain, collect and provide to IAE performance trend monitoring data on each Eligible Engine in accordance with Exhibit G, maintain timely records in form and detail sufficient for the accurate and expeditious administration of the terms of this Agreement including the assessment of operating conditions relative to those set out in Section 10.6 of this Agreement; |
9.1.2 | make available, and provide access to IAE's provider of electronic condition monitoring data analysis, all data collected in accordance with 9.1.1 above in an electronic format agreed to by IAE, as required for the operation and administration of this Agreement; |
9.1.3 | implement and follow the IAE reasonable recommendations resulting from analysis of the performance trend monitoring data; |
9.1.4 | within ten (10) Business Days after the end of each month during the Period of Cover, report to IAE, in an electronic format agreed to by IAE, the hours and cycles flown, take off derate, and day temperature for each flight by each Eligible Engine during the preceding month; |
9.1.5 | ensure that all data reasonably required by IAE (including borescope reports) to facilitate the correction of any problem causing an Eligible Engine Removal is promptly made available to IAE; |
9.1.6 | provide for each Eligible Engine, no later than two (2) Business Days following Eligible Removal, a removal report containing the following information with respect to the Eligible Engine: |
(a) | a record of Eligible Engine total time and cycles; |
(b) | position on the aircraft, aircraft number, and date of Eligible Engine removal; |
(c) | reason for removal, flight and ground indications prior to and related to removal; |
(d) | module rework history with time since new, time since overhaul and time since repair provided such module was serviced outside of this Agreement; |
(e) | any borescope reports detailing any open discrepancies; |
(f) | total LLP time, LLP part numbers, serial numbers, cycle limits, time since new, cycles since new, remaining cycles, and take-off bump cycles, if applicable; |
(g) | latest build standard record; |
(h) | records with respect to any Accessories, including part numbers, serial numbers, time and cycles since new, overhaul, Repair, or bench test, and a description of prior work performed for each item unless Spirit directs IAE where to send such Accessories; |
(i) | if applicable, a non-incident certification in customary form that the Eligible Engine and all parts installed thereon: |
(i) | have been operated and maintained in accordance with applicable IAE and Airbus instructions and manuals; |
(ii) | have not been operated by any government or military service except as civil aircraft on the civil register; and |
(iii) | have not been installed on any engine or module that was subject to any incident, accident, major failure, fire, extreme stress, over temperature outside normal operation, or over-speed; and |
(j) | any other data reasonably requested by IAE. |
9.1.7 | provide the Engine serial numbers within thirty (30) Business Days of acceptance by Spirit of each applicable Aircraft covered under this Agreement as described in Exhibit A of this Agreement, as amended, supplemented or otherwise modified from time to time; and |
9.1.8 | ensure Eligible Engines are available for FHA services in a Testable Engine configuration (when inducted at the Maintenance Center). |
9.2 | Engine Preparation for Transportation |
9.2.1 | make Eligible Engines available for shipment at Spirit's main base no later than ten (10) days prior to their scheduled induction date; |
9.2.2 | maintain in a serviceable condition one (1) IAE approved transportation stand per spare Eligible Engine plus an additional serviceable IAE approved transportation stand; |
9.2.3 | at the time of an Eligible Engine Removal, remove the Eligible Engine from the Aircraft, mount it on an IAE approved transportation stand and prepare such Eligible Engine for shipment, all in accordance with the procedures specified in the applicable IAE manuals; and |
9.2.4 | ensure that it does not remove from the Maintenance Center the IAE approved transportation stand on which the Eligible Engine was transported to the Maintenance Center so that such stand is available at the Maintenance Center on the day such Eligible Engine undergoes testing, to enable efficient movement of such Eligible Engine to the test cell and return transportation of such Eligible Engine to Spirit. |
9.3 | Operation, Maintenance and Troubleshooting of Eligible Equipment |
9.4 | Administration |
9.4.1 | Spirit shall cooperate with IAE to fulfill any reasonable administrative or other requirements of the Maintenance Center, including endorsement of Workscopes for Aviation Authority requirements within three (3) Business Days of receipt from IAE. If Spirit fails to respond, within five (5) Business Days, the Workscope will be deemed to be accepted. |
9.4.2 | Spirit shall accomplish quality audits and obtain certifications required by the Aviation Authority and IAE for accomplishment of work on the Eligible Engines at the Maintenance Center(s). |
9.5 | One Time Concessions |
9.6 | Payment |
9.7 | Records and Audit |
9.8 | Acceptance and Operation |
9.9 | Provision of Serviceable Accessories |
10. | FHA Rates and Payment |
10.1 | FHA Rates |
10.1.1 | The FHA Rate for Restoration Shop Visit Coverage for Eligible Engines during the Period of Cover shall be as follows: |
(a) | For V2524-A5 rated Eligible Engines [***] per Eligible Engine Flight Hour; |
(b) | For V2527-A5 rated Eligible Engines [***] per Eligible Engine Flight Hour; and |
(c) | For V2533-A5 rated Eligible Engines [***] per Eligible Engine Flight Hour. |
10.1.2 | [***] |
10.1.3 | The FHA Rate for Miscellaneous Shop Visit Coverage for Eligible Engines for the first [***] of each Eligible Engine's Period of Cover shall be [***] per Eligible Engine Flight Hour. |
10.1.4 | The FHA Rate for Miscellaneous Shop Visit Coverage for Eligible Engines each year commencing with the [***] for each Eligible Engine during the Period of Cover shall be as follows: |
(a) | For V2524-A5 rated Eligible Engines [***] per Eligible Engine Flight Hour; |
(b) | For V2527-A5 rated Eligible Engines [***] per Eligible Engine Flight Hour; and |
(c) | For V2533-A5 rated Eligible Engines [***] per Eligible Engine Flight Hour; |
10.1.5 | [***] |
10.1.6 | [***] |
10.1.7 | [***] |
10.2 | [***] |
10.3 | [***] |
10.4 | Excess Work Invoices |
10.4.1 | Charges for Excess Work shall be invoiced to Spirit by IAE as such Excess Work is performed in accordance with rates identified in Exhibit H. |
10.4.2 | In the event IAE determines that an Eligible Engine requires a Shop Visit that will be considered entirely to be Excess Work, and the Workscope for such Shop Visit is equal to or greater than a level of work that would be performed at a Restoration Shop Visit, then: |
(a) | IAE may invoice Spirit its reasonable estimate of the cost of any Excess Work prior to commencement, or during the execution, of such Excess Work. IAE shall invoice Spirit for the balance of the cost of any Excess Work upon receipt of the corresponding invoice from the Maintenance Center (or promptly issue a credit to Spirit's account with IAE for any excess payment received from Spirit); and |
(b) | the payment terms as set forth in Section 10.7.1 shall apply. |
10.5 | [***] |
10.6 | General Conditions |
10.6.1 | The FHA Rates are predicated upon Spirit: |
(a) | Maintaining within its fleet of Aircraft an annual average flight cycle of: [***] hours for V2524-A5 powered Aircraft, [***] hours for V2527-A5 powered Aircraft, and [***] hours for V2533-A5 powered Aircraft (each calculated from the moment the wheels of an Aircraft, on which any Eligible Engine is installed, leave the ground on take-off to the moment when the wheels of such Aircraft touch the ground on landing); | ||||
(b) | Maintaining an annual average utilization of [***] hours per V2524-A5 powered Aircraft, [***] hours per V2527-A5 powered Aircraft, and [***] hours per V2533-A5 powered Aircraft; | ||||
(c) | Maintaining an average engine thrust derate of: [***] for V2524-A5 powered Aircraft, [***] for V2527-A5 powered Aircraft, and [***] for V2533-A5 powered Aircraft, all relative to the name plate thrust rating; |
(d) | Maintaining an average ambient temperature for take-off no greater than: [***] for V2524-A5 powered Aircraft, [***] for V2527-A5 powered Aircraft, and [***] for V2533-A5 powered Aircraft; |
(e) | Having its main base located at Fort Lauderdale, Florida, USA; |
(f) | Spirit operating each Eligible Engine at its originally installed thrust rating (unless otherwise agreed by the Parties); |
(g) | acquiring all of the Firm Aircraft and Firm Spare Engines as set forth in Section 9.8; |
(h) | after taking delivery of the Spare Engines in accordance with Exhibit A, maintaining a minimum ratio of [***] Spare Engines to installed Engines for its Aircraft fleet; operating and maintaining the Aircraft and Eligible Engines in accordance with Airbus', IAE's, and other applicable OEM's technical manuals and the eMMP (including Engine rebuild requirements) for the duration of the Period of Cover; |
(i) | owning, operating, and maintaining the Aircraft and Eligible Engines in regular commercial airline operation for the duration of the Period of Cover; |
(j) | [***]; and |
(k) | acquiring from IAE or its approved sources reasonably sufficient components, parts, and spare Engines at the levels mutually agreed by IAE and Spirit to maintain proper support of the Eligible Engines and Aircraft. |
10.6.2 | In the event Spirit: (i) operates the Eligible Engines contrary to the preceding conditions, or (ii) wishes to include additional aircraft powered by V2500-A5 engines or additional V2500-A5 spare engines under this Agreement, then IAE, acting in good faith and in consultation with Spirit, may make reasonable and appropriate adjustments to the FHA Rates in accordance with the FHA Rate adjustment matrices set forth in Exhibit I (the "FHA Rate Adjustment Matrices"), which detail the effects of variations in derate, stage length, annual average utilization, and temperature on such FHA Rates. The FHA Rate Adjustment Matrices will be applied on an engine-by-engine basis at RSV induction. |
10.6.3 | In the event that an Eligible Engine leaves this Agreement for reasons beyond the control of Spirit, for example, an Eligible Engine is deemed damaged Beyond Economic Repair and is replaced by Spirit with another Engine, subject to prior written agreement by IAE (not to be unreasonably withheld, conditioned or delayed), the FHA Rates for that Engine and not for all Eligible Engines, will be adjusted. |
10.7 | Payment |
10.7.1 | [***] |
10.7.2 | Subject to Section 10.7.1 above, Spirit shall pay all invoices submitted by IAE under this Section 10 within [***] of receipt by Spirit. |
10.7.3 | Spirit undertakes that IAE shall receive the full undisputed amount of payments falling due under this Section 10, without any withholding or deduction whatsoever. If Spirit has a reasonable, good faith dispute with an Excess Work charge from IAE, Spirit will promptly notify IAE of such dispute in writing detailing the grounds for such dispute, but not later than fifteen (15) Business Days after receipt of such Excess Work charge. The Parties agree to use their reasonable, diligent and good faith efforts to reach a mutually agreeable resolution to such dispute.. The Parties agree to use their reasonable, diligent and good faith efforts to reach a final resolution of the Excess Work charge including, if necessary, elevation of the issue to each Party's senior management. |
10.7.4 | All payments under this Section 10 shall be made by electronic transfer and shall be deposited not later than the due date of payment with: | ||||
[***] | |||||
or to such other account in the United States as IAE may from time to time designate in writing, which designation shall be effective upon receipt by Spirit of such notice. |
10.7.5 | Should Spirit fail to make any material payments to IAE required as set forth in this Section 10 or should Spirit fail to make any material payments to IAE when due under any other agreement between IAE and Spirit and such amount is not subject to a good faith dispute between the Parties, then, notwithstanding any rights which IAE may have in contract or in law, IAE reserves the right to (a) assess interest on such late payment at the rate of the greater of [***] or the New York Citibank prime rate plus [***] per annum from the date the payment was due to be made until the date such payment is received by IAE, (b) suspend all work on any and all Eligible Engines then currently at the Maintenance Center pursuant to this FHA and/or (c) hold Eligible Engines in IAE's possession or control. |
10.8 | Taxes and Other Like Charges |
10.8.1 | In addition to amounts stated to be payable by Spirit pursuant to this Agreement, Spirit shall pay any and all imposts, taxes, duties, levies, fees, assessments or other like charges (excluding any income, gains, or excess profit, franchise and similar taxes levied on the part of IAE, any Maintenance Center or their respective Affiliates and subcontractors,) which may be imposed by any government or taxing agency thereof arising from performance by IAE or its subcontractors in connection with this Agreement. |
10.8.2 | All amounts stated to be payable by Spirit pursuant to this Agreement exclude any value added tax, sales tax or similar such tax. In the event that the supply of goods or services under this Agreement is chargeable to any value added tax, sales tax or similar such tax will be borne by Spirit, subject to the receipt of any appropriate documentation that may be required to enable or assist Spirit to claim or verify any tax credit, set off, rebate or refund in respect of such taxes paid or payable in connection with supplies under this Agreement. |
10.8.3 | If either IAE or Spirit becomes aware of any taxes set forth in Sections 10.8.1 and 10.8.2 above, the relevant Party shall promptly notify the other Party, and both parties agree to consult in good faith and take such other reasonable steps in order to mitigate the tax in question. |
11. | [***] |
12. | Warranties; Limitation of Liability |
12.1 | IAE warrants the work performed by a Maintenance Center at the final Shop Visit for each Eligible Engine under this Agreement shall be free from defects in materials and workmanship as follows: If Spirit demonstrates to the reasonable satisfaction of IAE that a defect in the work performed on a Part has caused damage to such Part or any other Part, and Spirit provides written notice to IAE of such damage within [***] or within [***] after installation of the corresponding Eligible Engine on an Aircraft, or if not installed on an Aircraft, within [***] after delivery of the Eligible Engine from the applicable Shop Visit, whichever occurs first, IAE shall, as its sole responsibility for such defect, repair such damage at IAE's own cost and expense. Transportation charges for the return of defectively serviced goods to IAE or the Maintenance Center, and their reshipment to Spirit and risk of loss thereof shall be borne by IAE only if such goods are returned in accordance with reasonable written shipping instructions from IAE. |
12.2 | IAE warrants to Spirit that it shall convey good title to the new Parts sold hereunder. IAE's liability and Spirit's remedy under this warranty are limited to the removal of any title defect or, at the election of IAE, to the replacement of the new Parts or components thereof which are defective in title; provided, however, that the rights and remedies of the Parties with respect to patent infringement shall be limited to the provisions of Section 15 of this Agreement. Spirit warrants that title to Parts removed from Eligible Engines by the Maintenance Center shall pass immediately to IAE free and clear of all security interests and rights of Spirit or others at the time that title to the replacement Part passes to Spirit. |
12.3 | THE FOREGOING WARRANTIES TOGETHER WITH THE EXPRESS REMEDIES PROVIDED TO SPIRIT IN ACCORDANCE WITH THIS AGREEMENT, ARE EXCLUSIVE AND ARE GIVEN BY IAE IN LIEU OF (A) ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN STATUTE, CONTRACT, TORT OR STRICT LIABILITY AGAINST OEM OR ITS AFFILIATES, WHETHER OR NOT ARISING FROM THE NEGLIGENCE, ACTUAL OR IMPUTED (BUT NOT GROSS NEGLIGENCE OR WILLFUL MISCONDUCT), OF IAE OR ITS AFFILIATES, STOCKHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, PERMITTED ASSIGNS AND AGENTS. |
12.4 | [***] |
12.5 | For purpose of this Section 12, "IAE" shall be deemed to include IAE International Aero Engines AG, Pratt and Whitney, a division of United Technologies Corporation, Pratt & Whitney Aero Engines International GmbH, Japanese Aero Engine Corporation, MTU Aero Engines GmbH, and the respective directors, officers, employees and agents of each. |
13. | Delays |
13.1 | Excusable Delays |
14. | Duplicate Benefits |
15. | Intellectual Property |
15.1 | IAE shall conduct, at its own expense, the entire defense of any claim, suit or action alleging that, without further combination, the use or resale by Spirit or any subsequent purchaser or user of the Parts delivered hereunder directly infringes any United States patent or any patent of any other country that is a signatory to Article 27 of the Convention of International Aviation signed by the United States at Chicago on December 7, 1944, in which Spirit is authorized to operate, but only on the condition that: |
15.1.1 | IAE receives prompt written notice of such claim, suit or action and has full opportunity and authority to assume the sole defense thereof, including settlement and appeals, and all information available to Spirit or subsequent purchaser or user for such defense; provided, however, IAE shall not agree to any settlement pursuant to which any fault is attributed to Spirit, without the prior written consent of Spirit; |
15.1.2 | such new Parts are made according to a specification or design furnished by IAE or, if a process patent is involved, the process performed with such Parts if recommended in writing by IAE; and |
15.1.3 | the claim, suit or action is brought against Spirit. |
15.2 | Provided all of the foregoing conditions have been met, IAE shall, at its own expense, either settle said claim, suit or action or shall pay all damages, excluding consequential damages and costs awarded by the court thereon, and, if the use or resale of such new Parts is finally enjoined, IAE shall, at IAE's option: |
15.2.1 | procure for Spirit the right to use and resell the new Parts, |
15.2.2 | replace them with equivalent non-infringing Parts, |
15.2.3 | modify them so they become non-infringing but equivalent, or |
15.2.4 | remove them and refund the purchase price and any additional amount necessary to replace the same with equivalent, non-infringing Parts (less a reasonable allowance for use, damage and obsolescence). |
15.3 | If a claim, suit or action is based on a design or specification furnished by Spirit or on the performance of a process not recommended or approved in writing by IAE, or on the use or sale of the Parts delivered hereunder in combination with other new parts not delivered to Spirit by IAE, Spirit shall indemnify and save IAE harmless therefrom. |
16. | Amendment |
17. | Assignment |
17.1 | Except as other agreed herein, Spirit may not assign in whole or part any of its rights or obligations under this Agreement without the written consent of IAE (such consent not to be unreasonably withheld). |
17.2 | [***] |
17.3 | [***] |
17.4 | IAE may, without recourse, assign its rights and/or delegate its obligations under this Agreement to any subsidiary or affiliate of IAE or United Technologies Corporation, or in connection with a merger, consolidation, reorganization, or voluntary sale or transfer of its assets; provided that such assignee/delegate is: (i) solvent at the time of such transfer and (ii) authorized by the applicable regulatory authorities, as necessary, to perform or procure the performance of all obligations being delegated/assigned; and (iii) able, in IAE's sole, reasonable discretion, to make all payments required by IAE to be made to Spirit under this Agreement. |
18. | Notices |
19. | Exclusion of Other Provisions and Previous Understandings |
19.1 | This Agreement is the sole and entire agreement of the Parties with respect to the Eligible Engines and the subject matter hereof and shall apply to the exclusion of any other provisions on or attached to or otherwise forming part of any order form of Spirit, or any acknowledgment or acceptance by IAE, or of any other document which may be issued by either Party relating to such services and the Eligible Engines. |
19.2 | The Parties agree that neither of them have placed any reliance whatsoever on any representations, agreements, statements or understandings made prior to the signature of this Agreement, whether orally or in writing, relating to such services, other than those expressly incorporated in this Agreement, which has been negotiated on the basis that its provisions represent their entire agreement relating to such services and shall supersede all such representations, agreements, statements and understandings. |
20. | Termination, Expiration and Events of Default |
20.1 | Bankruptcy Insolvency |
20.2 | Failure to Make Payments or to Meet Obligations |
20.2.1 | If Spirit fails to make any payment of a material amount, due and owing to IAE as set forth in Section 10 of this Agreement or any other agreement between the Parties (including any late interest due thereon) and such amount is not the subject of a good faith dispute or fails to meet any other material obligation under this Agreement or any other agreement between the Parties, then, after notice to Spirit and the expiration of a [***] cure period, and without prejudice to any of IAE's other rights which IAE may have in contract, at law, or in equity, IAE shall have the right to not to induct, to suspend all work on, or not to release from the Maintenance Center(s) any Eligible Engine until full payment is made by Spirit to IAE or such failure is corrected, as the case may be. |
20.2.2 | If Spirit fails to take delivery of all of the Aircraft and Eligible Engines in accordance with the schedule set forth in Exhibit A to this Agreement, as amended, supplemented or otherwise modified from time to time, or fails to operate the Aircraft and Eligible Engines in regular commercial service as contemplated by Section 10.6 for the duration of the Period of Cover, in addition to any other rights which IAE may have in contract, at law, or in equity, IAE shall be entitled to make reasonable adjustments to the FHA Rates as appropriate based on the method of calculation used to derive the FHA Rates. |
20.2.3 | A non-defaulting Party shall have the right to declare an event of default and terminate this Agreement: (i) if any default shall occur in the payment by the defaulting party of any material amount hereunder when and as the same becomes due and payable and such default continues, after notice from the non-defaulting Party for a period of [***] or more and is not the subject of a good faith dispute between the Parties, or (ii) for a failure by the defaulting Party to meet any other material obligation under this Agreement, and such failure has not been fully corrected within [***] after the non-defaulting Party has given notice of such failure to the defaulting Party and is not the subject of a good faith dispute between the Parties. |
20.3 | Expiration |
20.4 | Effect of Termination or Expiration |
20.4.1 | Upon any termination or expiration of this Agreement, all liabilities and obligations (including payment obligations) that have accrued prior to such termination or expiration (including payment due for Excess Work) shall survive. |
20.4.2 | Spirit shall pay to IAE the cost of any and all services which have been or are in the process of being carried out under the terms of this Agreement which have not been covered by payments made by Spirit under this Agreement plus a surcharge of the lesser of (i) [***] and (ii) the maximum amount allowed by law. Should Spirit terminate this Agreement under Section 20.1 or Section 20.2.3 above, IAE shall return any excess payments for services paid for, but not rendered. Such calculation shall be performed by IAE within sixty (60) Business Days of termination, shall be mutually approved by IAE and Spirit and shall be immediately due and payable by Spirit or IAE, as the case may be, upon receipt thereof. |
21. | Negation of Waiver |
22. | Severability and Partial Invalidity |
23. | Governing Law |
24. | Publicity |
25. | Confidentiality |
26. | Compliance with All Applicable Laws and Regulations |
26.1 | Export/Import. Spirit agrees that it will not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any IAE goods, software, technical data (including products derived from or based on such technical data), or services received directly or indirectly from IAE to any Prohibited Party without obtaining prior authorization from the relevant government authorities as required pursuant to Export Laws. "Prohibited Parties" means, collectively, those countries, and persons to whom the sale, export, re-export, transfer, diversion or other disposition of any IAE goods, software, technical data or services is prohibited by the applicable export laws and related regulations of the United States, German, British, Japanese, or European Union Governments. |
26.2 | Other Laws and Regulations. Spirit agrees that it will abide by all applicable laws and regulations. |
26.3 | Spirit shall indicate its compliance with the above on or before execution of this Agreement by completing and signing the End Use/End User Certificate form provided by IAE. |
27. | No Construction Against Drafter |
28. | Damages |
Agreed to and accepted on behalf of: IAE International Aero Engines AG | Agreed to and accepted on behalf of: Spirit Airlines, Inc. | |||||||||||||
By: | /s/ Rick Deurloo | By: | /s/ Charles A. Rue | |||||||||||
Name: | Rick Deurloo | Name: | Charles A. Rue | |||||||||||
Title: | SVP Sales | Title: | VP Supply Chain |
Existing Aircraft No. | Aircraft Type | Engine Model | Delivery Date | Aircraft MSN | ESN 1 | ESN 2 | ||||||||||||||
1 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
2 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
3 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
4 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
5 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
6 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
7 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
8 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
9 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
10 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
11 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
12 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
13 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
14 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
15 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
16 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
17 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
18 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
19 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
20 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
21 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
22 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
23 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
24 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
25 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
26 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
27 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
28 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
29 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
30 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
31 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
32 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
33 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
34 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
35 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
36 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
37 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
38 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
39 | [***] | [***] | [***] | [***] | [***] | [***] |
40 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
41 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
42 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
43 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
44 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
45 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
46 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
47 | [***] | [***] | [***] | [***] | [***] | [***] |
Existing Aircraft No. | Aircraft Type | Engine Model | Delivery Date | Aircraft MSN | ESN 1 | ESN 2 | ||||||||||||||
1 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
2 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
3 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
4 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
5 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
6 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
7 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
8 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
9 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
10 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
11 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
12 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
13 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
14 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
15 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
16 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
17 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
18 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
19 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
20 | [***] | [***] | [***] | [***] | [***] | [***] | ||||||||||||||
21 | [***] | [***] | [***] | [***] | [***] | [***] |
Spare Engines | No. | Engine Model | Delivery Date | ESN | ||||||||||
Firm Spare Engines | 1 | [***] | [***] | [***] | ||||||||||
2 | [***] | [***] | [***] | |||||||||||
3 | [***] | [***] | [***] | |||||||||||
4 | [***] | [***] | [***] | |||||||||||
5 | [***] | [***] | [***] | |||||||||||
6 | [***] | [***] | [***] | |||||||||||
7 | [***] | [***] | [***] | |||||||||||
8 | [***] | [***] | [***] | |||||||||||
9 | [***] | [***] | [***] | |||||||||||
10 | [***] | [***] | [***] | |||||||||||
11 | [***] | [***] | [***] | |||||||||||
Option Spare Engines | 1 | [***] | [***] | [***] | ||||||||||
2 | [***] | [***] | [***] | |||||||||||
3 | [***] | [***] | [***] | |||||||||||
4 | [***] | [***] | [***] |
1. | FHA Rates will be subject to annual escalation in accordance with the formula set forth below: |
ATA code | Description | Units Per Engine | OEM | ||||||||
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1. | SPIRIT ADDRESSES |
(a) | Address for Notices: |
(b) | Address for Invoices: |
2. | IAE ADDRESSES |
(a) | Address for Notices: |
(b) | Address for Invoices: |
(c) | Address for all Other FHA Matters: |
1. | IAE will provide the following Engine health monitoring services ("Services") through the ADEM system: |
(a) | ENGINE TREND MONITORING |
(i) | Provide processing of in-flight engine data received from Operator into IAE's EHM database as provided per the data input and transmission requirements set forth in Section 3 herein. All processed data will be provided to the Operator via IAE's web portal. Daily updates require web portal access described in Section 1(b) herein. |
(ii) | Provide automated mechanical exceedance reporting for those Aircraft that are equipped with required on-board hardware and software. |
(iii) | Provide technical analysis of EHM Eligible Engines' performance data and report anomalies indicated by such data to designated Operator personnel as required. |
(iv) | Provide access to monthly EHM Eligible Engine operating trend analysis report covering post EHM Commencement Date operations to assist Operator in the planning and scheduling of EHM Eligible Engines for shop visits. |
(v) | Provide automated alert notification of parameters that have exceeded level and rate change limits. |
(vi) | Provide access to alert details reports that identify Aircraft and Eligible Engines by serial number and provide the date, time, magnitude and details of occurrences when such Eligible Engine exceeds specific performance parameters and provide the ability to store comments associated with a given alert. |
(vii) | Provide exhaust gas temperature (subject to data availability) Watch-Lists, updated monthly utilizing data received from Operator to assist Operator in scheduling Eligible Engine removals for maintenance purposes. The Watch-Lists provide an engine ranking and predicted removal date for a given Eligible Engine based on the measured parameter and deterioration rate to assist with proactive on-wing management and maintenance planning. |
(viii) | Provide access to the following engine performance parameter trend plots that are updated real-time as new in-flight engine data is received from Operator: |
(ix) | Upon special request, raw in-flight engine data can be supplied to the Operator. |
(x) | Input data files and d individually processed records will be stored for a minimum period of five (5) years. |
(b) | WEB PORTAL ACCESS |
(i) | Provide twenty-four (24) hour per day access to reports and processed information, provided to under Section 1 herein, through a secure web portal created and maintained by IAE. Such web portal access shall be created and provided to Operator approximately thirty (30) days from the execution of this Agreement. Operator must meet IAE defined requirements for access as detailed in Section 2 herein. IAE will use all reasonable efforts to ensure a service availability target of 96% when measured on an annual basis and that down time of the system is no longer than one (1) business day for any one incident. |
(ii) | IAE shall provide Services under the terms of this Agreement contingent upon the timely receipt of data required by IAE from Operator. It is understood between the parties that the ability of IAE to provide timely and accurate reports and processed information through these web-based services is dependent upon the quality and timeliness of the data received from Operator. |
(iii) | If Email, or pager or cell phone alert notifications are required by the Operator, the Operator shall be responsible for acquiring and maintaining the required pager and cell phone hardware and software and pay any associated communications fees. It is the Operator's responsibility to establish an alert notification contact list and advise IAE of any changes. |
2. | ACCESSIBILITY |
(a) | To facilitate internet portal access, Operator is required to maintain the following: (i) internet access; (ii) Internet Explorer version 5.5 or higher; (iii) 128 bit Secure Socket Layer ("SSL") encryption capability; and (iv) a minimum internet speed of 56K bits per second to access the internet portal. |
(b) | All information being transmitted through the Internet portal will be protected using SSL encryption. In addition, each user of the Internet portal will be authenticated at logon with a unique user identification and password. Once authenticated to the Internet portal, Operator will only be allowed to access the information that Operator and IAE mutually agree a specific user may review. IAE shall review security requirements for web portal access from time to time to ensure an appropriate level of data protection. Updated security requirements shall be communicated to Operator on a timely basis. |
3. | TRANSMISSION OF DATA BY OPERATOR |
(a) | Operator shall provide all data requested by IAE in order to perform the Services, including but not limited to the date and time the data was recorded, aircraft and engine number, engine position, altitude and mach (or air speed), total air temperature, engine pressure ratio, rotor speeds, fuel flow, oil temperature, oil pressure, mechanical exceedances and pertinent maintenance actions (EHM Eligible Engine changes, sensor changes, other items that may impact engine performance). Operator shall electronically transmit engine condition monitoring data to IAE's designated ground station via air-to-ground service providers (e.g., ARINC and SITA) or via such other routing as the parties mutually agree. |
(b) | Using the facilities available within IAE's V2500 engine monitoring program services, the Operator shall provide feedback of on-wing maintenance actions taken as a result of an alert notification as provided in accordance with Section 1(a)(v) herein. |
4. | LIMITATION OF LIABILITY |
Item | Basis | Rates/Fees | ||||||
[***] | [***] | [***](4) | ||||||
[***] | [***] | [***] | ||||||
[***] | [***](1) | [***](2) | ||||||
[***] | [***] | [***] | ||||||
[***] | [***] | [***] | ||||||
[***] | [***] | [***] | ||||||
[***] | [***] (3) | [***](4) | ||||||
[***] | [***] | [***](4) |
1. | [***] |
2. | [***] |
3. | Where units per Engine quantities listed in Exhibit C are greater than [***], a single [***] fee per ATA line item shall still apply. This charge will also cover the packing, one-way transportation and coordination of Accessories removed and sent for vendor repair. |
4. | The above rates and fees are expressed in United States Dollars and are subject to escalation from the base month of January 2012 in accordance with the formula set forth in Exhibit B. |
Subject: | Side Letter No. 1 to the Amended and Restated V2500-A5 Fleet Hour Agreement between IAE International Aero Engines AG and Spirit Airlines, Inc., dated October 1, 2013 |
1. | Existing Fleet - [***] |
Agreed to and accepted on behalf of: IAE International Aero Engines AG | Agreed to and accepted on behalf of: Spirit Airlines, Inc. | |||||||||||||
By: | /s/ Rick Deurloo | By: | /s/ Edward Christie | |||||||||||
Name: | Rick Deurloo | Name: | Edward Christie | |||||||||||
Title: | SVP Sales | Title: | SVP & CFO | |||||||||||
Date: | 10/2/13 | Date: | 10/2/13 |
1. | DEFINITIONS 4 |
2. | PURCHASE OBLIGATIONS 4 |
3. | FINANCIAL ASSISTANCE 5 |
4. | FIRM SPARE ENGINES 7 |
5. | ESCALATION 9 |
6. | [***] 11 |
7. | [***] 13 |
8. | [***] 14 |
9. | PURESOLUTIONSM FMP 14 |
10. | GUARANTEE PLANS AND TECHNICAL SUPPORT 14 |
11. | CERTIFICATION 19 |
12. | TERMS AND CONDITIONS 19 |
13. | NOTICES 20 |
14. | [***] 21 |
15. | ENTIRE AGREEMENT 21 |
16. | PARTICIPATION OF PARTIES 22 |
Appendix 1 | Agreement Definitions |
Appendix 2 | Aircraft and Spare Engine Delivery Schedule |
Appendix 3 | PW1100G-JM Engine Specification |
Appendix 4 | PW1100G-JM Engine Price Escalation Formula |
Appendix 5 | PureSolutionSM Fleet Management Program |
Appendix 6 | PW1100G-JM Engine Product Support Plan |
Appendix 7 | Warranties and Service Policies for the PW1100G-JM Engine |
Appendix 8 | Guarantee Plan Definitions and Conditions |
Appendix 9 | [***] |
Appendix 10 | [***] |
Appendix 11 | [***] |
Appendix 12 | [***] |
Appendix 13 | [***] |
Appendix 14 | [***] |
Appendix 15 | [***] |
Appendix 16 | [***] |
Appendix 17 | [***] |
Appendix 18 | [***] |
Appendix 19 | [***] |
Appendix 20 | [***] |
Appendix 21 | Terms and Conditions of Sale of Goods and Services |
1. | DEFINITIONS |
2. | PURCHASE OBLIGATIONS |
2.1 | Spirit will place a firm order with Airbus for the fifty (50) Firm Aircraft, and will inform Airbus that it has selected Engines to power the Firm Aircraft. |
2.2 | Spirit will take delivery of each Firm Aircraft in accordance with the Delivery Schedule, subject to the provisions of Section 6.3 and the other terms and conditions of this Agreement. |
2.3 | Pratt & Whitney will sell, under separate agreements with Airbus, new PurePower PW1100G-JM Engines for installation on the Firm Aircraft; |
2.4 | Spirit will purchase and take delivery of, and Pratt & Whitney will sell and deliver to Spirit, nine (9) Firm Spare Engines in accordance with the Delivery Schedule, subject to the provisions of Section 6.4 and the other terms and conditions of this Agreement. This Agreement constitutes Spirit's firm and unconditional purchase order with Pratt & Whitney for the nine (9) Firm Spare Engines; |
2.5 | Spirit agrees that receipt of benefits under this Agreement is subject to and conditioned upon Spirit performing its obligations under the PureSolution FMP set forth in Appendix 5, which the parties agree to execute contemporaneously with this Agreement; |
2.6 | This executed Agreement constitutes a valid, binding, and legally enforceable contract by and between Spirit and Pratt & Whitney for the support of the Engines installed on the fifty (50) Firm Aircraft, the purchase and sale of the nine (9) Firm Spare Engines, and their performance of the PureSolution FMP. |
3. | FINANCIAL ASSISTANCE |
3.1 | Introductory Assistance Credit |
3.1.1 | To assist Spirit with the introduction of the Firm Aircraft into Spirit's fleet, Pratt & Whitney will provide Spirit with a Fleet Introductory Assistance Credit per Firm Aircraft based on the Engine/Firm Aircraft model purchased, as follows: |
FLEET INTRODUCTORY ASSISTANCE CREDITS | ||||||||
ENGINE/AIRCRAFT MODEL | CREDIT AMOUNT (JAN-12$) | ESCALATION | ||||||
PW1124G-JM powered A319 Firm Aircraft | [***] | Escalated | ||||||
PW1127G-JM powered A320 Firm Aircraft | [***] | Escalated | ||||||
PW1133G-JM powered A321 Firm Aircraft | [***] | Escalated |
3.1.2 | The Fleet Introductory Assistance Credits are expressed in January 2012 delivery conditions and will escalate (and be subject to escalation protection) in accordance with the provisions of Article 5. |
3.1.3 | The Fleet Introductory Assistance Credits shall be issued directly to Airbus, to be applied toward Spirit's payment for the corresponding Firm Aircraft. |
3.2 | Firm Spare Engine Credits |
3.2.1 | To assist Spirit with spare Engine provisioning, Pratt & Whitney will provide Spirit with a Spare Engine Credit per Firm Spare Engine based on the Engine Model purchased, as follows: |
SPARE ENGINE CREDIT | ||||||||
ENGINE MODEL | SPARE ENGINE CREDIT (JAN-12$) | ESCALATION | ||||||
PW1124G-JM Spare Engine | [***] | Escalated | ||||||
PW1127G-JM Spare Engine | [***] | Escalated | ||||||
PW1133G-JM Spare Engine | [***] | Escalated | ||||||
Each Firm Spare Engine final invoice | [***] | Escalated |
3.2.2 | The Spare Engine Credits are expressed in January 2012 delivery conditions and will escalate (and be subject to escalation protection) in accordance with the provisions of Article 5. |
3.2.3 | The applicable Spare Engine Credit will be applied to each Firm Spare Engine's final invoice. |
3.3 | Spare Parts and Tooling Credit |
3.4 | Training Assistance |
4. | FIRM SPARE ENGINES |
4.1 | Spare Engine Price |
FIRM SPARE ENGINE MODEL | UNIT BASE PRICE PER PW1100G-JM SPARE ENGINE JANUARY 2012 UNITED STATES DOLLARS | ||||
PW1124G-JM | [***] | ||||
PW1127G-JM | [***] | ||||
PW1133G-JM | [***] |
4.2 | Spare Engine Payment Terms |
4.3 | Delivery and Acceptance of Firm Spare Engines |
4.3.1 | For each Firm Spare Engine purchased, Pratt & Whitney will arrange and pay for one-way transportation, and bear risk of loss during such transportation, from Pratt & Whitney's facility to Spirit's designated main base. For each Firm Spare Engine purchased under this Agreement, Spirit will purchase a P&W Shipping Stand or provide an Equivalent Shipping Stand, and will make each such shipping stand available at Pratt & Whitney's designated facility at least [***] prior to each scheduled Firm Spare Engine delivery. |
4.3.2 | Pratt & Whitney shall ensure that each Firm Spare Engine delivered to Spirit is new and conforms to the applicable Engine Specification through the maintenance of procedures, systems and records approved by the Airworthiness Authority. An FAA-issued "Authorized Release Certificate" (FAA Form 8130-3, Airworthiness Approval Tag) or "Certificate of Conformity" (as the case may be) will be issued and signed by personnel authorized for such purposes. [***] |
4.3.3 | Subject only to the provisions of Section 4.3.2, upon Spirit's payment in full for the Firm Spare Engine as described in Section 4.2 above and the issue of an "Authorized Release Certificate" (FAA Form 8130-3, Airworthiness Approval Tag) or a Certificate of Conformity (as the case may be), Spirit shall be deemed to (i) have accepted the Firm Spare Engine (and Engine storage bag and transportation stand, if purchased |
5. | ESCALATION |
5.1 | The Fleet Introductory Assistance Credits, Spare Engine Credits, Spare Engine Unit Base Prices, and Spare Parts and Tooling Credits are subject to escalation in accordance with the Engine Escalation Formula, and in each case, subject to the escalation protection described in Section 5.3. Credits shall be escalated from the Base Month and Year specified in this Agreement to the earlier of (a) the applicable scheduled delivery date indicated in the Delivery Schedule or (b) the actual delivery date of the corresponding Firm Aircraft or Firm Spare Engine. |
5.2 | [***] |
5.3 | [***] |
5.4 | With respect to installed Engines, Pratt & Whitney will, as of the respective dates of delivery of each of the Firm Aircraft delivered to Spirit, calculate the difference (if any) between: (i) the corresponding Deemed Shipset Price (as defined below) escalated in accordance with the Engine Escalation Formula, and (ii) the corresponding Deemed Shipset Price as capped in accordance with Section 5.3. Pratt & Whitney will adjust the aggregate amount of the credits due and payable to Spirit for each such Firm Aircraft by such difference. For purposes of administering this provision, the "Deemed Shipset Price" shall be as follows. |
DEEMED SHIPSET PRICE | |||||
ENGINE MODEL | PW1100G-JM DEEMED SHIPSET PRICE JANUARY 2012 UNITED STATES DOLLARS | ||||
PW1124G-JM | [***] | ||||
PW1127G-JM | [***] | ||||
PW1133G-JM | [***] |
5.5 | Credit and Engine Pricing Conditions |
5.5.1 | Except as otherwise provided in this Agreement, credits provided under Article 3 may only be used for the purchase of goods and/or services from Pratt & Whitney. |
5.5.2 | Pratt & Whitney agrees that the credits provided to Spirit shall not expire provided that: (i) this Agreement remains in full force and effect, (ii) the credits have not been |
5.5.3 | The credits described in Article 3 will be issued in accordance with the applicable provisions of Article 3, provided that Spirit's account with Pratt & Whitney is then current in accordance with the terms hereof. [***] |
5.5.4 | Spirit will ensure compliance with any and all requirements (including but not limited to reporting and approval requirements) of any applicable currency control or other applicable law, rule, or regulation relating to any credits issued under this Agreement. |
5.5.5 | [***] |
5.5.6 | [***] |
6. | [***] |
7. | [***] |
8. | [***] |
9. | PURESOLUTIONSM FMP |
9.1 | PureSolutionSM Fleet Management Program |
10. | GUARANTEE PLANS AND TECHNICAL SUPPORT |
10.1 | Guarantee Plans |
10.1.1 | maintained exclusively in the Pratt & Whitney Network under the PureSolution FMP [***]; or |
10.1.2 | [***]. |
10.2 | PurePower PW1100G-JM Engine Product Support Plan |
10.3 | [***] |
10.4 | On-Site Pratt & Whitney Field Representative |
10.4.1 | Pratt & Whitney field representatives are fully trained on all facets of Engine line maintenance and are stationed around the world to assist operators with the introduction of the Engine into their fleets. Pratt & Whitney will assign a field representative in Spirit's area of operation to assist Spirit in preparing for Engine operation. |
10.4.2 | The Pratt & Whitney field representative will provide the following services to Airline: |
a. | 24 Hour Support; |
b. | Maintenance Action Recommendations; |
c. | Daily Reporting on Engine Technical Situations; |
d. | Service Policy Preparation Assistance; and |
e. | Prompt Communication with Pratt & Whitney |
10.4.3 | [***] |
10.5 | [***] |
10.6 | Warranties and Service Policies for the PW1100G-JM Engine |
10.6.1 | Pratt & Whitney will provide Spirit the benefits of the Warranties and Service Policies for the PW1100G-JM Engine attached as Appendix 7 [***]. |
10.7 | [***] |
10.8 | [***] |
11. | CERTIFICATION |
12. | TERMS AND CONDITIONS |
12.1 | Terms and Conditions |
12.1.1 | The Terms and Conditions attached hereto as Appendix 21 govern all transactions under this Agreement |
12.1.2 | In the event of a conflict between a provision set forth in the main body of this Agreement and a provision set forth in an appendix or attachment to this Agreement, or if a provision in the main body of this Agreement modifies a provision set forth in an appendix or attachment to this Agreement, the provision set forth in the main body of this Agreement shall govern over the provision set forth in the appendix or attachment to this Agreement. |
12.2 | Incorporation of Appendices |
12.3 | For as long as Spirit owns and/or operates one or more Firm Aircraft in regular commercial service and is not in material breach of any of its obligations to Pratt & Whitney under this Agreement, Pratt & Whitney or its affiliate will provide adequate supplies of spare Parts available for sale to support Spirit's commercial operation of the Engines. In consideration thereof, Pratt & Whitney or its affiliate will sell to Spirit and, except as hereinafter provided, Spirit will buy from Pratt & Whitney or its affiliate, for the period of operation of the Firm Aircraft in Spirit's fleet, Spirit's requirements of all new spare Parts manufactured pursuant to the detailed design and order of Pratt & Whitney where Pratt & Whitney or its affiliate is the only source from which Spirit can purchase such new spare Parts. Spirit agrees that all Parts displaced from an Engine as a result of incorporation of a Part purchased from Pratt & Whitney shall be returned to Pratt & Whitney or a Pratt & Whitney designated vendor for repair or scrap as determined by Pratt & Whitney." |
12.4 | Spirit agrees to display Pratt & Whitney's logo on the nacelle for all Firm Aircraft. Pratt & Whitney shall be responsible for properly installing the logos at its own cost for any nacelles that Pratt & Whitney chooses to have display such logo(s). The size and |
13. | NOTICES |
14. | [***] |
15. | ENTIRE AGREEMENT |
16. | PARTICIPATION OF PARTIES |
SPIRIT AIRLINES, INC. | ||||||||||||||
By | /s/ Charles A. Rue | |||||||||||||
Name | Charles A. Rue | |||||||||||||
Title | VP Supply Chain |
UNITED TECHNOLOGIES CORPORATION, Pratt & Whitney Division | ||||||||||||||
By | /s/ Rick Deurloo | |||||||||||||
Name | Rick Deurloo | |||||||||||||
Title | SVP Sales |
SPIRIT FIRM AIRCRAFT | ||||||||||||||
AIRLINE | AIRCRAFT MODEL | QUANTITY OF AIRCRAFT | ENGINE MODEL | DELIVERY DATE | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
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SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] |
SPIRIT FIRM AIRCRAFT | ||||||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] | ||||||||||
SPIRIT | [***] | 1 | [***] | [***] |
SPIRIT PW1100G-JM SPARE ENGINES | |||||||||||
AIRLINE | QUANTITY OF ENGINES | ENGINE MODEL | DELIVERY DATE | ||||||||
SPIRIT | 1 | [***] | [***] | ||||||||
SPIRIT | 1 | [***] | [***] | ||||||||
SPIRIT | 1 | [***] | [***] | ||||||||
SPIRIT | 1 | [***] | [***] | ||||||||
SPIRIT | 1 | [***] | [***] | ||||||||
SPIRIT | 1 | [***] | [***] | ||||||||
SPIRIT | 1 | [***] | [***] | ||||||||
SPIRIT | 1 | [***] | [***] | ||||||||
SPIRIT | 1 | [***] | [***] |
A. | NAVITAIRE is an airline technology services company, which provides various services such as hosted reservation and revenue management services to airline companies worldwide. |
B. | The parties desire that NAVITAIRE provide to Customer Hosted Services (as defined in Section 1), and Customer desires to purchase such Hosted Services on the terms contained in this Agreement. |
1 | Definitions |
1.1 | API(s) means Application Program Interface(s). |
1.2 | Confidential Information has the meaning set forth in Section 9.1 hereof. |
1.3 | Configurable Template means any of the templates comprising from time to time a part of the Hosted Services System and designed to permit Customer to configure the presentation and interfaces of the Hosted Reservation Services through the use of APIs and limited source code made available by NAVITAIRE as a part of Hosted Reservations Services for such purpose. |
1.4 | Customer Authorized Support Contact(s) has the meaning set forth in Exhibit D, Section 5. |
1.5 | Enhancement Request metes a request by Customer to modify Hosted Services System used by NAVITAIRE to provide the Hosted Services. |
1.6 | Customer Account Liaison has the meaning set forth in Exhibit D, Section 2. |
1.7 | Emergency has the meaning set forth Sections 5.4.1 of Exhibits A, B, F, G, H and J. |
1.8 | Enhancement has the meaning set forth in Exhibit A, Section 9.4.2, Exhibit F, Section 9.4.2, Exhibit G, Section 10.2.2, Exhibit H, Section 10.2.2, and Exhibit J, Section 10.2.2. |
1.9 | Hosted Operations Management Services means the services described in Exhibit H; provided that if Hosted Operations Management Services are not designated as being contracted for in Exhibit H, Section 2 shall be blank or not appended and this Agreement shall not cover such type of services. |
1.10 | Hosted Operations Recovery Services means the services described in Exhibit J; provided that if Hosted Operations Recovery Services are not designated as being contracted for in Exhibit J, Section 2 shall be blank or not appended and this Agreement shall not cover such type of services. |
1.11 | Hosted Reservation Services means the services described in Exhibit A; provided that if Hosted Reservation Services are not designated as being contracted for in Exhibit A, Section 2 shall be blank or not appended and this Agreement shall not cover such type of services. |
1.12 | Hosted Revenue Accounting Services means the services described in Exhibit G; provided that if Hosted Revenue Accounting Services are not designated as being contracted for in Exhibit G, Section 2 shall be blank or not appended and this Agreement shall not cover such type of services. |
1.13 | Hosted Revenue Management Services means the services described in Exhibit B; provided that if Hosted Revenue Management Services are not designated as being contracted for in Exhibit B, Section 2 shall be blank or not appended and this Agreement shall not cover such type of services. |
1.14 | Hosted Services or Services means Hosted Reservation Services and/or Hosted Revenue Management Services and/or Hosted Web Services and/or Hosted Revenue Accounting Services, and/or Hosted Operations Management Services, and/or Hosted Operations Recovery Services, as designated in Section 2 of this Agreement. |
1.15 | Hosted Services System means at any time, with respect to Hosted Reservation Services, the hardware and software then or theretofore used from time to time by NAVITAIRE to provide such Services (including the Configurable Templates and any associated APIs or source code), and means with respect to Hosted Revenue Management Services, the hardware and software then or theretofore used by NAVITAIRE to provide such Services, and means with respect to Hosted Web Services, the hardware and software then or theretofore used by NAVITAIRE to provide such Services, means with respect to Hosted Revenue Accounting Services, the hardware and software then or theretofore used by NAVITAIRE to provide such Services, means with respect to Hosted Operations Management Services, the hardware and software then or theretofore used by NAVITAIRE to provide such Services, and means with respect to Hosted Operations Recovery Services, the hardware and software then or theretofore used by NAVITAIRE to provide such Services as well as in each case any user or other documentation associated therewith. |
1.16 | Hosted Web Services means the services described in Exhibit F; provided that if Hosted Web Services are not designated as being contracted for in Exhibit F, Section 2 shall be blank or not appended and this Agreement shall not cover such type of services. |
1.17 | Implementation Services has the meaning set forth in Sections 3 of Exhibit A, B, F, G, H and J. |
1.18 | Included Support has the meaning set forth in Sections 5 of Exhibit A, B, F, G, H and J. |
1.19 | Initial Term has the meaning set forth in Section 5.1 hereof. |
1.20 | Interrupted Service has the meaning set forth in Exhibit A, Section 9.2.1, Exhibit B, Section 5.4.1, Exhibit F, Section, 9.2.1, Exhibit G, Section 5.4.1, Exhibit H, Section 5.4.1 and Exhibit J, Section 5.4.1. |
1.21 | Major Release has the meaning set forth in Exhibit A, Section 9.4.5. |
1.22 | Mark has the meaning set forth in Section 4.10 hereof and Exhibit E. |
1.23 | Material Change has the meaning set forth in Section 6.4.3 hereof. |
1.24 | NAVITAIRE Property has the meaning set forth in Section 7.2 hereof. |
1.25 | PNR means a Passenger Name Record, being an individual electronic record with a unique record locator number, which may contain one or more passenger names and booked Segments. |
1.26 | Support Centre Support has the meaning set forth in Sections 5 of Exhibits A, B, F, G, H and J. |
1.27 | Segment or Host Segment means a nonstop individual booked flight segment or passive/informational segment. |
1.28 | Service Fees means the fees payable by Customer as specified in Exhibit A, Section 8, Exhibit B, Section 9, Exhibit F, Section 10, Exhibit G, Section 9, Exhibit H, Section 9 and Exhibit J, Section 9. |
1.29 | Service Levels means targets included in Sections 9.2.1 of Exhibit A and F. |
1.30 | Support Fees means fees payable by Customer for applicable NAVITAIRE Support Centre Support as specified in Exhibits A, B, F, G, H and J. |
1.31 | Target Date means the completion date for implementation Services for each of the defined Hosted Services as outlined in Section 3 of Exhibits A, B, F, G, H and J, unless the Target Date has been changed as outlined in Exhibit A, Section 8.7, Exhibit B, Section 9.6, Exhibit F, Section 10.6, Exhibit G, Section 9.6, Exhibit H, Section 9.6 and Exhibit J, Section 9.6. In the event that Customer utilizes the Hosted Services for live production use before the Target Date, the Target Date will be deemed to be the first date of production use of such Hosted Services. The specific Target Date for each of the Services is located in Exhibit A, Section 3.9.1, Exhibit B, Section 3.9.1, Exhibit F, Section 3.7.1, Exhibit G, Section 3.9.1, Exhibit H, Section 3.9.1 and Exhibit J, Section 3.9.1. |
2 | Scope of Services |
X | Hosted Reservation Services (or certain types thereof), as designated in and the provision of which is governed by Exhibit A hereto; and/or | |||||||||||||
NA | Hosted Revenue Management Services, as designated in and the provision of which is governed by Exhibit B hereto; and/or | |||||||||||||
NA | Hosted Web Services, as designated in and the provision of which is governed by Exhibit F hereto; and/or | |||||||||||||
X | Hosted Revenue Accounting Services, as designated in and the provision of which is governed by Exhibit G hereto; and/or | |||||||||||||
NA | Hosted Operations Management Services, as designated in and the provision of which is governed by Exhibit H hereto; and/or | |||||||||||||
NA | Hosted Operations Recovery Services, as designated in and the provision of which is governed by Exhibit J hereto. |
3 | NAVITAIRE Obligations |
3.1 | NAVITAIRE shall perform the Hosted Services in accordance with this Agreement. NAVITAIRE may utilize subcontractors to perform its obligations under this Agreement provided, however, that (a) any such subcontracting to be performed on Customer's premises will be subject to Customer's prior written consent, not to be unreasonably consent withheld, (b) any such subcontracting will not relieve NAVITAIRE of any liability hereunder, and (c) any such subcontractors will be subject to a duty of confidentiality for which (i) Customer is an intended third party beneficiary, and (ii) is sufficient such that such subcontracting allows NAVITAIRE's performance hereunder to remain in compliance with applicable privacy laws. |
3.2 | On a rolling three (3) year basis, as measured from the time each record is created, NAVITAIRE will keep complete and accurate books, records and documents from which may be determined the basis for billing Customer and for compliance with this Agreement. Such books will be maintained in a fashion acceptable under Generally Accepted Accounting Practices. Such books, records, and accounts will be open for inspection, examination, audit and copying by the Customer or the Customer's auditors. Client and its auditors will use commercially reasonable efforts to conduct such audits in a manner that will result in a minimum of inconvenience and disruption to NAVITAIRE's business operations. Audits may be conducted only during normal business hours and no more frequently than annually unless material issues are discovered. Customer and its auditors will not be entitled to audit: (i) data or information of other customers of NAVITAIRE; (ii) any NAVITAIRE proprietary data including cost information unless such is the basis of a reimbursable or pass-through expense; or (iii) any other Confidential Information of NAVITAIRE that is not directly relevant for the purposes of the audit. Customer will provide NAVITAIRE with reasonable prior written notice of an audit. NAVITAIRE will use commercially reasonable efforts to cooperate in the audit, will make available on a timely basis the information reasonably required to conduct the audit and will assist the designated employees of customers or its auditors as reasonably necessary. Any |
request for additional assistance will constitute a new service request. All information learned or exchanged in connection with the conduct of an audit, as well as the results of any audit, constitutes Confidential Information of Customer and NAVITAIRE and will be subject to Section 99 below. Customer will not use any competitors or NAVITAIRE to conduct such audit. Upon the request of Customer, NAVITAIRE will promptly identify any such competitors. The auditors and other representatives of Customer will execute and deliver such confidentiality and non-disclosure agreements (naming NAVITAIRE as a third party beneficiary of such confidentiality obligations) and comply with such security and confidentiality requirements as NAVITAIRE may reasonably request in connection with such audits. All audits will be conducted at Customer's expenses. |
3.3 | In the performance of this Agreement, NAVITAIRE will comply with statutes, regulations, ordinances, and orders of the Federal Government and other a jurisdictions applicable to NAVITAIRE as a provider of Hosted Services in respect to non-discrimination in employment and facilities including, without limitation, the provisions contained in Executive Order 11246, as amended and as it may be further amended in the future, titled "Equal Employment Opportunity" and in 41 C.F.R. §§ 60-1.4(a), 60-250.4 and 60-741.5(a) which are incorporated herein by reference. NAVITAIRE further agrees that it will complete and return such forms and respond to such inquires as the Customer may provide or ask, at Customer's expense, in connection or related to NAVITAIRE's being or use of small, HUBZone, small disadvantaged, and women-owned small businesses for the services under this Agreement and otherwise. |
4 | Customer Obligations |
4.1 | General Obligations. Customer shall comply with the obligations set forth herein including, but not limited to, those set forth in Exhibits A, B, F, G, H and J. |
4.2 | Access and Cooperation. Customer will provide NAVITAIRE with access to and use of its data, internal resources, and facilities, and shall otherwise cooperate with NAVITAIRE as reasonably required by NAVITAIRE, in connection with the implementation and provision of Hosted Services. NAVITAIRE will reasonably coordinate such requirements with Customer. |
4.3 | Notice of Increased Usage and Hosted Services Processing Capacity. NAVITAIRE'S Hosted Services capacity available to Customer is based on a calculation of three (3) times the volume of Passengers Boarded listed as Monthly Minimum Passengers Boarded Guarantees, as defined in Exhibit A, Section 8.1 that result divided by two hundred forty (240) business hours in the month (based on twenty (20) business days times twelve (12) business hours per day) to equal the number of peak hour Segment bookings per hour during a calendar month. Correspondingly, the peak hour capacity available to Customer for "Availability Requests" is three (3) times the Look to Book ratio as outlined in Exhibit A, Section 8.1. NAVITAIRE will not be obligated to fulfill service level parameters, as outlined in Exhibit A, Section 9 and Exhibit F, Section 9, when Customer's volume exceeds the peak hour capacity as defined in this paragraph, but will make commercially reasonable efforts to do so. |
4.4 | Annual Segment Forecast Update. Customer agrees to provide NAVITAIRE each October with preliminary projected annual segment volume forecast for the following year, and will provide more accurate projections when a board-approved plan is available. NAVITAIRE will use Customer's segment forecast for business planning purposes for providing Hosted Services. It is acknowledged that such projections will not be binding on Customer and are intended for planning purposes only. |
4.5 | Customer Contacts. Customer initially designates the person set forth in Exhibit D, Section 2 as the Customer Account Liaison, being the primary authorized contact for account management, project funding, performance, payment, and other commercial issues with respect to the Hosted Services. Customer further initially designates the person(s) set forth in Exhibit D, Section 5 as the Customer Authorized Support Contact(s), being the authorized contact(s) to utilize the telephone support and Internet technical support system. Customer will ensure that all Customer Authorized Support Contact(s) will have received adequate training on the Hosted Services. Customer may change their designated Customer Account Liaison or Customer Authorized Support Contact(s) by written notice to NAVITAIRE, where such changes may be made on a temporary basis in Customer's discretion. |
4.6 | Omitted. |
4.7 | Use by Customer. Hosted Services and Confidential Information of NAVITAIRE are for the sole and exclusive use of Customer. Customer may, however, permit agents hired by Customer or Customer's subcontractors and their employees to access the Hosted Services solely for the purpose of procuring Hosted Services for and on behalf of Customer; provided that: (a) Customer will be responsible for ensuring such agents and subcontractors comply with the terms hereof, including confidentiality obligations; and (b) such agents and |
subcontractors are not competitors of NAVITAIRE, it being acknowledged that Customer may reveal a mutually agreed redacted copy of this Agreement to such agents as reasonably required in connection with the foregoing. From time to time, at NAVITAIRE's request, Customer shall provide a list of the entities to which such access has been provided and Customer will respond to each such request within fifteen (15) days. Customer will cooperate with NAVITAIRE in investigating any alleged misuse of the Hosted Services. Customer may not transfer any Confidential Information of NAVITAIRE, in any form whatsoever without the prior written consent of NAVITAIRE, except as reasonably required to use the Hosted Service as permitted under the foregoing, provided that in no event may Confidential information be shared with direct competitors of NAVITAIRE. Any transfer of or access to the Hosted Services or Confidential Information of NAVITAIRE in violation of this Section shall constitute a material breach of this Agreement. For purposes of reference, Section 7 contains further terms and conditions regarding Customer's use of the Hosted Services System. |
4.8 | Training. Except for any initial training provided by NAVITAIRE as described in Exhibits A, B, F, G, H and J, Customer will be responsible for training its employees and authorized agents and subcontractors in the use of Hosted Services including, but not limited to, use of any new functions or Enhancements. |
4.9 | Telecommunications and Equipment. Unless otherwise specified in Exhibits A, B, F, G, H or J, Customer shall be responsible for all telecommunication dedicated, dial-up, or wireless circuits used by Customer in connection with the transmission of data between the Hosted Services System and the Customer's site(s). Customer shall provide, install, and operate compatible hardware and communications equipment, which meets NAVITAIRE required specifications as listed In Exhibits A, B, F, G, H and J, necessary for connecting to the Hosted Services System. Customer is required to have Internet access and Internet electronic mail capability in order to communicate with NAVITAIRE support. Customer agrees to order all required circuits it is responsible for within five (5) days of execution of this Agreement. In the event that the Target Date is greater than ninety (90) calendar days following the Effective Date of this Agreement, Customer may order all required circuits at a later date but no less than ninety (90) calendar days prior to the Target Date. The data circuits must be of capacity sufficient to accommodate all Hosted Services and meet any defined Service Levels. |
4.10 | Acknowledgment. Customer agrees to include the Powered by Navitaire® Mark (the "Mark") in any and all media products accessing or otherwise utilizing the Hosted Services System under the terms and conditions set forth in Exhibit E of this Agreement. |
5 | Term and Termination |
5.1 | Term. Unless otherwise terminated earlier under this Section 5, this Agreement shall commence on the Effective Date and continue for an Initial Term of ten (10) years following the Target Date for the respective Hosted Services. This Agreement will renew automatically for two (2) additional one (1) year renewal terms unless one party provides written notice of termination to the other party at least one hundred and eighty (180) calendar days prior to the end of the initial or any renewal term. |
NAVITAIRE may increase the Service Fees payable by Customer with respect to any renewal term; provided that NAVITAIRE gives Customer written notice of such increase in Service Fees at least three hundred (300) calendar days prior to the end of the then current term, but otherwise the terms hereof shall likewise apply to each renewal term. |
5.2 | Termination for Cause |
5.2.1 | This Agreement may be terminated as follows: (a) by a party upon written notice to the other party in the event of material breach of the terms hereof by the other party which is not cured within thirty (30) calendar days of written notice thereof, provided, however, that for breaches that cannot be cured within thirty (30) days such cure will be deemed made provided that the breaching party initiates efforts to remedy the breach within said thirty (30) days according to a written plan provided to and acceptable to the non-breaching party and continues in good faith with that remedy; (b) by NAVITAIRE upon written notice to Customer, if Customer fails to pay any amount due hereunder and not in dispute within [***] calendar days of the due date, NAVITAIRE provides written notice of such failure to Customer (which notice also constitutes the notice described in Section 6.5), and within [***] calendar days of delivery of such written notice such amount remains unpaid; or (c) as contemplated by Section 8.1. In addition, Customer may terminate this Agreement upon written notice to NAVITAIRE as contemplated by Sections 9.8.2 of Exhibits A and F if applicable. |
5.2.2 | NAVITAIRE shall not be in material breach if its failure to perform hereunder is due to problems caused by Customer software and associated data, or by Customer hardware other than that is specifically supported by NAVITAIRE or other equipment failures for hardware or other equipment failures not maintained by NAVITAIRE. |
5.2.3 | If Customer terminates due to material breach by NAVITAIRE, NAVITAIRE will provide Customer with duplicates of electronic media such as magnetic tapes or CDs of Customer's database, which will be provided in the Standard Data Extract format for PNRs and Hosted Reservation Services standard file formats for schedule and Hosted Revenue Management Services historical data. |
5.2.4 | If NAVITAIRE terminates due to Customer's material breach, Customer will pay NAVITAIRE a sum of (i) the aggregate of the Minimum Monthly Guarantee(s) set forth in Exhibit A, Section 8.1 that Customer would otherwise have paid for each month until the expiration of the Agreement calculated on a net present value using LIBOR rate in effect at time, and (ii) any reasonable attorneys' costs that NAVITAIRE incurs as a result of Customer's material breach and subsequent termination. NAVITAIRE will, upon Customer's request and at reasonable expense to Customer, provide Customer with duplicates of electronic media such as magnetic tapes or CDs of Customer's database. |
5.3 | Termination for Convenience |
(a) | In the [***] prior to the [***] anniversary customers representing more than fifteen (15) of the then current Navitaire Hosted Reservation Services Customers migrate to competitor solutions excluding Customers that are merged or acquired by other airlines and excluding those airlines who have already served NAVITAIRE a notice of termination at the effective date of this Agreement. For the purposes of this calculation, only airlines carrying greater than 1,000,000 passengers per year shall be considered; and |
(b) | if NAVITAIRE measures: |
(c) | upon such (180) one hundred eighty calendar days written notice to NAVITAIRE. |
5.4 | Survival. No termination hereof shall release Customer from its obligation to pay NAVITAIRE in full for all Hosted Services performed by NAVITAIRE up to the date of termination, nor shall it affect any other obligations hereunder which expressly or by reasonable implication is intended to survive termination, including those set forth in Sections 6, 7, 8, 9, 10, and 18. |
5.5 | Termination Assistance. In anticipation of the termination of this Agreement, except for termination due to Customer's breach, NAVITAIRE, as reasonably requested by Customer, NAVITAIRE will provide reasonable termination and transition assistance to Customer, including participation in meetings with the vendor that will be replacing NAVITAIRE so as to assist in a smooth transition. NAVITAIRE will provide such assistance on a time and materials basis at the rates specified herein. |
5.6 | Termination for Convenience of Skyledger Hosted Revenue Accounting Service. At any time prior to May 19, 2007 Customer may terminate the provisions of Exhibit G, Hosted Revenue Accounting Services, upon payment of a termination fee and not as a penalty a fee of [***]. In the event that Customer does not exercise this termination for convenience right by May 19, 2007 then the terms and conditions of Exhibit G will be in full force and binding through the full Term of this Agreement. |
6 | Price and Payment |
6.1 | Service Fees. In consideration for the provision of Hosted Services by NAVITAIRE as set forth in this Agreement, Customer will pay NAVITAIRE the Service Fees as set forth in Exhibit A, Section 8, Exhibit B, Section 9, Exhibit F, Section 10, Exhibit G, Section 9, Exhibit H, Section 9 and Exhibit J, Section 9, as applicable, and elsewhere in this Agreement. |
6.2 | Expenses. Customer shall bear all expenses incurred by NAVITAIRE personnel in connection with travel to Customer's site(s) to prepare for and to implement the Hosted Services or to provide training, consulting, support, or other services at Customer's site. Such expenses shall include, without limitation, reasonable and timely coach-class air travel, ground transportation, quality lodging at hotels comparable to those used by Customer for its own flight crews, meals, and incidentals. NAVITAIRE shall, whenever reasonably possible, obtain advance written approval from Customer of applicable travel expenses and Customer may select one if the following options: |
(a) | Customer Arranged Travel. Customer may arrange any such flight, ground transportation, lodging, meals and incidentals. |
(b) | NAVITAIRE Arranged Travels. For those expenses to which 6.2(a) does not apply, NAVITAIRE will make travel arrangements through the NAVITAIRE corporate travel agency other applicable arrangements. |
6.3 | Payment Terms. All payments made under this Agreement shall be made in United States dollars either: (a) by electronic funds transfer, prepaid, to the bank account designated on the invoice; or (b) by check drawn on a United States bank and delivered to the address indicated on the invoice. Except where otherwise specifically set forth in this Agreement, all payments under this Agreement are due within thirty (30) calendar days from the NAVITAIRE invoice date. Service Fees as stated in Exhibits A, B, F, G, H and J will be invoiced at the end of each month for the higher of the Service Fees for the Monthly Minimum Passengers Boarded Guarantees listed In the monthly recurring Service Fees, Exhibit A, Section 8 for the Hosted Services for that month or the actual number of Passenger Boarded for that month. Any amounts not paid when due will bear interest at the lesser of: (a) [***] per month; or (b) the maximum rate allowable by law. In addition to any interest charge, any payments due that are more than thirty (30) days late will be subject to an automatic [***] percent late fee. NAVITAIRE may exercise reasonable commercial judgment to change credit or payment terms at any time when, in the sole opinion of NAVITAIRE, Customer's financial condition or previous payment record so warrants. |
6.4 | Fee Adjustment |
6.4.1 | Service Fees. During the Initial Term as stated in Section 5.1 hereof, NAVITAIRE will not increase the Service Fees for the Hosted Services functionality specified in Exhibit A, Section 6, Exhibit B, Section 7, Exhibit F, Section 7, Exhibit G, Section 7, Exhibit H, Section 7, and Exhibit J, Section 7. |
6.4.2 | NAVITAIRE reserves the right to offer a Major Release which may include additional significant enhancements such as APIs, code-share, and GDS Type A connectivity, at an additional charge above the fees described in Exhibits A B, F, G, H and J of this Agreement. Customer has the option of paying such additional charges to enable such functionality or remain with current functionality and Hosted Services and fees as stated in Exhibits A, B, F, G, H and J. In the event that Customer accepts a significant enhancement which will incur additional Service Fees, such fees will be communicated to Customer in advance, in writing, and upon Customer's written acceptance, will be added to the applicable Service Fees. |
6.4.3 | Support Fees. The Support Fees described in Exhibits A, B, F, G, H and J shall be adjusted annually on January 1 of each year to account for inflation. During the term, if the Employment Cost Index for Professional, Specialty and Technical Occupations, as published by the United States Bureau of Labor Statistics of the Department of Labor ("ECI"), shall, commencing the first January 1 following the Effective Date, on any January 1 (the "Current Index") be higher than the ECI twelve (12) months prior thereto, (the "Base Index"), then, effective as of such then current January 1, the Support Fees then in effect shall be increased by the percentage that the Current Index increased from the Base Index. In such event, NAVITAIRE shall provide to Customer a recalculation of the affected amounts. If the Bureau of Labor Statistics ceases the publication of the ECI or substantially changes or alters the content and format of the ECI, then NAVITAIRE may substitute another comparable measure published by a mutually agreeable source. If such change is merely to redefine the base year for the ECI from one year to another year, Customer and NAVITAIRE shall continue to use the ECI but shall, if necessary, convert either the Base Index or the Current Index to the same basis as the other by multiplying such index by the appropriate conversion factor. In no event will the increase for Support Fees exceed [***] in any one year period. |
6.4.4 | Material Change. If there is a material change in the environment affecting the cost of operation or market price of airline reservation systems then, at the time of the seven year anniversary of the agreement, both parties agree to, in good faith, review the commercial details of this agreement for the remaining 3 year period with the objective of mutually agreeing any changes to the commercial details of this agreement for the remaining 3 year period in order to reflect such material change. |
6.4.5 | Notice. NAVITAIRE shall give Customer not less than ninety (90) days prior written notice of any changes to any Service Fees or Support Fees. |
6.5 | Failure to Pay. If Customer fails to pay any sum not in dispute within thirty (30) calendar days of the date due, NAVITAIRE may provide written reminder notice of such failure to Customer (this notice also constitutes the notice described in Section 5.2.1(b)). If, within ten (10) calendar days of delivery of such written notice such sum remains unpaid, NAVITAIRE may, without breach of this Agreement, discontinue performing under this Agreement until all due but unpaid payments are received. |
6.6 | Taxes. Customer shall pay, or if NAVITAIRE so requires reimburse NAVITAIRE for, for all taxes in connection with this Agreement including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties. Should any payment for service, product or technology provided by NAVITAIRE be subject to withholding tax by any government, Customer shall reimburse NAVITAIRE such withholding. Each Party shall provide and make available to the other Party any resale, exemption, multiple points of use certificates, treaty certification and other exemption information reasonably requested by the other Party. If Customer shall pay any tax incurred in connection with this Agreement; Customer agrees to remit to NAVITAIRE within 30 days of issue, tax documents which support the payment of such taxes. Customer agrees to reimburse and hold NAVITAIRE harmless from any deficiency (including penalties and interest) relating to taxes that are the responsibility of Customer under this paragraph. Each party shall be responsible for taxes based on its own net income, employment taxes of its own employees, and for taxes on any property it owns or leases. For purposes of this Agreement, taxes shall include taxes incurred on transactions between and among NAVITAIRE and its Affiliates. |
6.7 | Invoice Disputes. In the event of any good faith dispute with regard to a portion of an invoice, the undisputed portion shall be paid as provided in this Agreement, and Customer shall promptly send a written statement of exceptions to NAVITAIRE for the disputed portion. Upon resolution of the disputed portion, any amount owed lo NAVITAIRE shall be paid with interest at the rate above, which shall accrue from the date that these amounts were originally due. |
7 | License, Title, Modifications, and Covenants |
7.1 | License. NAVITAIRE will grant access to Customer to the Hosted Services System as is necessary to use such System to obtain the Hosted Services in accordance with NAVITAIRE policies and procedures, and subject to Section 7.2 of this Agreement, NAVITAIRE hereby grants Customer a non-exclusive, non-transferable, worldwide license to use the Hosted Services System to the extent of the access provided during the term of this Agreement solely for the purposes of obtaining Hosted Services in accordance herewith. |
7.2 | Title. Subject to Sections 7.1 and 7.3 of this Agreement, NAVITAIRE hereby retains all of its right, title, and interst in and to the Hosted Services System, and copyrights, patents, trademarks, service marks, design rights (whether registered or unregistered), trade secrets, know-how, expertise, and all other similar |
proprietary rights associated therewith ("Intellectual Property Rights") and/or which are developed in connection with this Agreement, irrespective of whether developed by NAVITAIRE individually or by NAVITAIRE and Customer jointly (the "NAVITAIRE Property"), which shall include without limitation: (a) the source code of software included in the NAVITAIRE Property, where applicable; and (b) all modifications, extensions, upgrades, and derivative works of the NAVITAIRE Property. In confirmation of NAVITAIRE'S right, title and interest in the NAVITAIRE Property as set forth in the preceding sentence of this Section 7.2, Customer hereby assigns to NAVITAIRE all of its right, title and interest in and to the NAVITAIRE Property. Likewise, Customer retains all rights and interests in its Intellectual Property Rights, including, without limitation, all data placed in the Hosted Services Systems in connection herewith by it, its agents and customers. |
7.3 | Modifications |
7.3.1 | By NAVITAIRE. Without prejudice to Section 6.4 or any other provision of this Agreement, NAVITAIRE may upgrade, modify and replace the Hosted Services System or any part thereof at any time during the term of this Agreement, provided that: |
(a) | NAVITAIRE notifies Customer at least sixty (60) days prior to implementation of any upgrades or replacements of the Hosted Services System which is likely to materially alter the delivery of Hosted Services. NAVITAIRE shall use reasonable commercial efforts to (i) provide Customer with training materials (ii) make recommendations in respect of new hardware or software to be purchased by Customer; |
(b) | all upgrades and replacements which might reasonably be expected to materially alter the delivery of Hosted Services are scheduled for implementation as reasonably required and mutually agreed by NAVITAIRE and Customer; and |
(c) | with introduction of any upgrades or replacements, NAVITAIRE maintains the comparable level of services. |
7.3.2 | By Customer. Customer shall not reverse engineer, disassemble, decompile, unlock, copy, alter, modify, change, create derivatives of or in any other way reproduce or use any of the software code, programs, or components of the Hosted Services System, provided that: |
(a) | Customer may use APIs and limited source code provided by NAVITAIRE from time to time for such purpose as part of Hosted Reservations Services solely to configure the Configurable Templates for use as a part of such Services; and |
(b) | Without prejudice to the rights of Customer in its trademarks and services, Customer shall have no right following termination of this Agreement to use the Configurable Templates or any configurations thereof, or any APIs or source code provided by NAVITAIRE, or any modifications, changes or derivatives thereof created, in any such case whether created by or for Customer or otherwise, all of which are hereby assigned by Customer to NAVITAIRE as contemplated by Section 7.2. |
7.4 | Covenants. Customer hereby covenants and agrees that: |
(a) | the NAVITAIRE Property may be used by NAVITAIRE and its affiliated companies to facilitate delivery of services to other customers; and |
(b) | Customer shall not access or use any APIs embedded in the Hosted Services System except as authorized by NAVITAIRE and in connection with the Hosted Services; and |
(c) | Except as set forth in Section 4.7 of this Agreement, Customer will allow no person access to Hosted Services or use the Hosted Services System absent a written agreement signed by NAVITAIRE. |
7.5 | Mutual Covenants. Each party represents and warrants to the other party that as of the Effective Date of this Agreement: |
(a) | it has the requisite power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement; and |
(b) | the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement shall not constitute a material default under any material contract by which it or any of its material assets are bound, or an event that would, with notice of lapse of time or both, constitute such a default. |
7.6 | Compliance With Laws |
7.6.1 | Notwithstanding any other provision of this Agreement to the contrary other than Section 7.6.2 below, each party will retain responsibility for its compliance with all applicable laws and regulations relating to its respective business and facilities and the provision of services to third parties. In performing their respective obligations under this Agreement, neither party will be required to undertake any activity that would violate any applicable laws or regulations. |
7.6.2 | Notwithstanding any other provision of this Agreement: |
(a) | Each party shall retain responsibility for its compliance with all applicable export control laws and economic sanction programs relating to its respective business, facilities, and the provision of services to third parties. |
(b) | NAVITAIRE shall not be required by the terms of this Agreement to be directly or indirectly involved in the provision of goods, software, services and/or technical data that may be prohibited by applicable export control or economic sanctions if performed by NAVITAIRE. |
(c) | Applicable export control or economic sanctions programs may include U.S. export control laws such as the Export Administration Regulations and the International Traffic in Arms Regulations, and U.S. economic sanctions programs that are or may be maintained by the U.S. Government, including sanctions currently imposed against Belarus, Burma (Myanmar), Cuba, Iran, Ivory Coast, Liberia, North Korea, Sudan, Syria and Zimbabwe, as well as Specially Designated Nationals and Blocked Persons programs. NAVITAIRE and Customer will comply with U.S. export control and U.S. economic sanctions laws with respect to the export or re-export of U.S. origin goods, software, services and or technical data, or the directed product thereof. |
(d) | Prior to providing NAVITAIRE any Hosted Services and/or technical data subject to export controls, Customer shall provide written notice to NAVITAIRE specifying the nature of the controls and any relevant export control classification numbers. |
8 | Indemnification |
8.1 | Rights to Indemnification. Each party shall defend the other party from any third party claims that any product, service, information, materials or other item provided by such party under this Agreement infringes any presently existing third party patent or copyright; and indemnify such party for any damages awarded in relation to such claim; provided that, however, a party shall have no defense or indemnity obligation under this Section 8.1 to the extent any such infringement results from: (a) the use of any software provided by the party seeking indemnification in combination, operation or use with software or hardware not provided by such indemnifying party; provided that, however, such exclusion shall not apply to the use by the Customer of the Hosted Services System in connection with the hardware and software identified on the applicable Exhibit hereto; (b) the use of any Hosted Services System in a modified state which was not authorized by the indemnifying party; or (c) use of a version of the software included in the Hosted Services System without having implemented all of the updates within a reasonable period after such updates were provided by the indemnifying party and the indemnifying party was advised that such update was |
intended to address an alleged infringement. Without limiting the foregoing indemnification obligations, if any product, service, information, material or other item of the indemnifying party is, or in the indemnifying party's opinion is likely to be held to be, an infringing material, then the indemnifying party will, at its option: (a) procure the right to continue using it; (b) replace it with a non-infringing equivalent acceptable to the other; (c) modify it to make it non-infringing in a fashion acceptable to the other; or (d) if none of the foregoing can be accomplished in a commercially reasonable manner, cease using, and require the indemnified party to cease using such item, and if such cessation renders it impractical to continue the contractual relationship contemplated hereby, either party may also terminate this Agreement. The foregoing remedies constitute the indemnified party's sole and exclusive remedies and the indemnifying party's entire liability with respect to infringement. |
8.2 | Except for claims covered by Section 8.1, Customer agrees to indemnify and hold NAVITAIRE harmless from third party claims arising out of Customer's use of the Hosted Services and reimburse NAVITAIRE for all expenses (including counsel fees and court costs) incurred by NAVITAIRE in connection with such claim. |
8.3 | Notice and Control of Action. A party seeking indemnification in respect of any actual or potential claim or demand shall notify the other party within ten (10) business days after it receives written document relating to such claim. The indemnifying party shall have no obligation to indemnify the other party to the extent such other party fails to give the notice within the specified period set forth in the preceding sentence and such failure materially prejudices the indemnifying party. The indemnifying party shall have the right, at its sole cost, expense, and liability, to appoint counsel of its choice and to litigate, defend, settle or otherwise attempt to resolve any such claim, provided that the indemnified party shall have the right to consent to any settlement, which consent will not be unreasonably withheld. |
9 | Confidential Information |
9.1 | Notification. "Confidential Information" means for each party hereto any information, in any form, including, without limitation, written documents, oral communications, recordings, videos, software, databases, business plans, and electronic/magnetic media, received or observed by that party pursuant to this Agreement and provided by/through and/or belonging to the other party as well as the terms of this Agreement, excepting information specified in Section 9.3. The fees payable under, and the material terms of, this Agreement are agreed to be Confidential Information of each party, but may be disclosed as reasonably required in connection with audits of each party pursuant to Section 3.2. |
9.2 | Use and Protection of Information. Confidential Information may be used by the receiving party only in furtherance of the transactions contemplated by this Agreement, and only by those employees of the receiving party and its agents or subcontractors who have a need to know such information for purposes related to this Agreement, provided that such agents or subcontractors have signed separate agreements containing substantially similar confidentiality provisions (provided, however, that such separate agreement will not be required of those having an |
independent duty of confidentiality, e.g., counsel, auditors, and accountants acting in those capacities). The receiving party and its agents and subcontractors shall protect the Confidential Information of the disclosing party by using the same degree of care (but not less than a reasonable degree of care) to prevent the unauthorized use, dissemination, or publication of such Confidential Information as the receiving party uses to protect its own confidential information of a like nature and value. The duty hereunder will survive while such information remains Confidential Information. Notwithstanding anything to the contrary herein, each party acknowledges and agrees that the other may, upon the other party's written consent, not to be unreasonably withheld share the terms of this Agreement as reasonably necessary in connection with the due diligence commonly associated with major transactions. |
9.3 | Exclusions. Nothing in this Agreement shall prohibit or limit either party's use of information which it can demonstrate by written evidence was: (a) previously known to it without obligation of confidence; (b) independently developed by it; (c) acquired by it from a third party which is not, to its knowledge, under an obligation of confidence with respect to such information; (d) which is or becomes publicly available through no breach of this Agreement. |
9.4 | Subpoena. In the event a receiving party or its agents or subcontractors receives a subpoena or other validly issued administrative or judicial process requesting Confidential Information of the other party, the receiving party shall provide prompt notice to the other of such subpoena or other process, unless doing so violates applicable law. The receiving party, its agents or subcontractors, as the case may be, shall thereafter be entitled to comply with such process to the extent required by law. If a party or its agents and subcontractors is served with a subpoena or other validly issued administrative or judicial process in relationship to the matters contemplated hereby and arising from a proceeding in which the other party is a defendant and the served party, its agents and subcontractors, is not, such other party shall pay all the reasonable out-of-pocket expenses of the served party, its agents and subcontractors, associated with such subpoena or other administrative or judicial process. |
9.5 | Privacy of Information. NAVITAIRE agrees to comply with all applicable member state laws implementing EU Directive 95/46/EC as a Data Processor and all applicable United States laws regarding the privacy and confidentiality of information it receives under this Agreement. If the Customer requires that NAVITAIRE comply with other data protection acts, Customer must supply a copy of such act for NAVITAIRE's review prior to signature of this Agreement, and, if accepted by NAVITAIRE, the parties shall enter into a data protection addendum to this Agreement in relation to it. |
9.6 | Injunctive Relief. Notwithstanding Section 19 hereof, it is agreed that either party will have the right to injunctive relief to enforce the provisions of this Section 9 or to bar its breach and that such relief may be sought in any court of competent jurisdiction, which will, without limitation, be deemed to include the courts of New York. |
10 | Disclaimers and Limitations |
10.1 | EXCEPT FOR AMOUNTS DUE BY CUSTOMER IN THE ORDINARY COURSE, THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER UNDER OR IN CONNECTION WITH THIS AGREEMENT AND THE PROVISION OF HOSTED SERVICES TO CUSTOMER, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, TORT, OR OTHERWISE), SHALL NOT EXCEED USD $200,000, PROVIDED, HOWEVER, THAT THE FOREGOING LIMIT WILL NOT APPLY TO LIABILITIES ARISING UNDER SECTION 8, ARISING AS RESULT OF A PARTY'S GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT; |
10.2 | NAVITAIRE HEREBY DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS BASED ON THE USE OR POSSESSION OF ANY PRODUCT, SERVICE OR RELATED MATERIALS PROVIDED UNDER THIS AGREEMENT BY NAVITAIRE; NAVITAIRE HEREBY DISCLAIMS AND EXCLUDES ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS BASED ON THE USE OR POSSESSION OF ANY PRODUCT, SERVICE OR RELATED MATERIALS PROVIDED UNDER THIS AGREEMENT BY NAVITAIRE. THE FOREGOING SHALL NOT LIMIT THE APPLICABILITY OF ARTICLE 8. |
10.3 | NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY EXEMPLARY, SPECIAL, INDIRECT, CONSEQUENTIAL, OR INCIDENTAL DAMAGES OF ANY KIND, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND |
10.4 | IT IS AGREED THAT THERE ARE NO INTENDED THIRD PARTY BENEFICIARIES OF THIS AGREEMENT. |
10.5 | THE LIMITATIONS SET FORTH IN SECTIONS 10.1, 10.2 AND 10.3 ABOVE SHALL NOT APPLY TO LIABILITY FOR DEATH, PERSONAL INJURY OR DAMAGE TO TANGIBLE PERSONAL PROPERTY. |
10.6 | At all times during the term of this Agreement, each party will carry and maintain in full force and effect comprehensive general liability insurance for bodily injury including personal injury and property damage and automobile liability coverage for owned and non owned vehicles with a combined single limit of liability of not less than two million dollars ($2,000,000). Prior to the commencement of performance under this Agreement, each party agree to furnish to the other with certificates evidencing that such party has the insurance required under this provision. Neither party is required to obtain insurance for the benefit of the other |
party, and each party shall pay all costs and receive all benefits under policies arranged by it. Each party waives rights of subrogation it may otherwise have regarding the other party's insurance policies, including but not limited to property insurance, business interruption insurance, and other first-party insurance |
11 | Acquisitions and Mergers |
11.1 | Change in Control. In the event that Customer is merged with or comes under common control with a third party when such third party or the party controlling both is party to an agreement for services or provides services itself that would be duplicative of those provided hereunder, the parties will negotiate in good faith to continue, modify and/or terminate this agreement to avoid/end such duplication recognizing the costs Navitaire has incurred to establish facilities and implement systems and software to provide the services hereunder. |
12 | Publicity |
12.1 | Customer's purchase and use of the Hosted Services will be deemed to constitute Customer's permission, during the term hereof only, for NAVITAIRE to use Customer as a reference in marketing these services including NAVITAIRE's right to use Customer's "tailfin" shape ("Talfin") for that purpose unless Customer specifically revokes this permission in writing. |
12.2 | The Tailfin must stand alone and will only be displayed with other such marks in a fashions that is reasonably comparable. |
12.3 | NAVITAIRE shall not combine the Tailfin with any other feature including, but not limited to, other tailfins or logos, words graphics, photos, slogans, numbers, design features, or symbols. |
12.4 | Individual graphic elements of the Tailfin may not be used as design features on any of NAVITAIRE's products. |
12.5 | The Tailfin is an official trademark and/or service mark of Customer and shall at all times remain the property of Customer. The Tailfin includes graphic elements and accompanying words. The Tailfin shall always be expressed as an integrated whole. |
12.6 | Customer may chance the Tailfin or substitute a different tailfin at any time; provided however that Customer provides ninety (90) days prior written notice thereof to NAVITAIRE. |
12.7 | Customer reserves the right to conduct spot checks on the travel product to ensure compliance with this policy. |
12.8 | NAVITAIRE must correct any deficiencies in the use of the Tailfin within ten (10) business days after receiving notice from Customer. |
12.9 | All rights not expressly granted are reserved by Customer. NAVITAIRE acknowledges that nothing herein shall give it any right, title or interest in the Tailfin or any part thereof, other than the license rights granted herein. |
12.10 | NAVITAIRE agrees that it will not at any time dispute or contest (a) the validity of the Tailfin as a trademark or service mark or any registrations thereof, whether now existing or hereafter obtained; (b) the exclusive ownership by Customer, its successors or assigns, of the Tailfin or of any registrations of the Tailfin, whether now existing or hereafter obtained; (c) the exclusive ownership by Customer of the present and future goodwill of the business pertaining to the Tailfin; or (d) Customer's right to grant to NAVITAIRE the rights and privileges conferred by the foregoing license. |
12.11 | NAVITAIRE shall not assign, transfer or sublicense any right granted herein in any manner without the prior written consent of Customer. |
12.12 | NAVITAIRE may not use the Tailfin in any way as an endorsement or sponsorship of its products by Customer. |
12.13 | NAVITAIRE shall not use the Tailfin in any manner that disparages Customer or its products or services, infringes any Customer intellectual property or other rights, or violates any state, federal or international law |
13 | Relationship of the Parties |
14 | No Assignment |
15 | Force Majeure |
16 | Notices |
CUSTOMER | NAVITAIRE | |||||||||||||
Attention: | Controller | Controller | ||||||||||||
Address: | 2800 Executive Way Miramar, FL 33025 | 901 Marquette Avenue, Suit 1600, Minneapolis, MN 55402-3210 | ||||||||||||
Telephone: | (954) 447-4853 | (612) 317-7000 | ||||||||||||
Fax: | (954) 447-7967 | (612) 317-7075 |
17 | Waiver |
18 | Third Party Access |
19 | General |
19.1 | Entire Agreement and Amendments. This Agreement and its Exhibits constitute the entire agreement between NAVITAIRE and Customer, and supersede any prior or contemporaneous communications, representations, or agreements between the parties, whether oral or written, regarding the subject matter of this Agreement. The terms and conditions of this Agreement may not be changed except by an amendment signed by an authorized representative of each party. Without limiting the foregoing, both parties acknowledge that each may use preprinted forms, invoices, and/or other forms as it deems fit. The parties agree that, in the event of conflict between the text of such a form and this Agreement, the terms and conditions of this Agreement will prevail. No additional or different terms contained in any such form will be of any force or effect. |
19.2 | Headings. The headings in this Agreement are for the convenience of the parties only and are in no way intended to define or limit the scope or interpretation of the Agreement or any provision hereof. |
19.3 | Applicable Law. This Agreement is made under and shall be construed in accordance with the law of the state of New York without giving effect to that jurisdiction's choice of law rules. |
19.4 | Severability. If any term or provision of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement shall not be affected. |
19.5 | Dispute Resolution. Any dispute between the parties with respect to interpretation of any provision of this Agreement or with respect to performance by NAVITAIRE or Customer shall be resolved as specified in this Section 19.5. |
19.5.1 | Upon the request of either party, each party will appoint a designated representative whose task it will be to meet for the purpose of endeavoring to resolve such dispute. The designated representatives shall discuss the problem and negotiate in good faith in an effort to resolve the dispute without the necessity of any formal proceeding. |
19.5.2 | If the designated representatives do not resolve the dispute within thirty (30) days after the request to appoint a designated representative is delivered to a party, then the dispute shall escalate to the Vice President, Customer Operations of NAVITAIRE and the Chief Financial Officer of Customer, for their review and dispute shall be placed in a mutually agreed escrow account and held there pending resolution of the dispute. All other applicable fees not affected by the dispute are due as specified within this Agreement. |
19.5.3 | If the dispute is not resolved by the parties under Section 19.5.1 or 19.5.2, the parties may initiate formal proceedings. With the sole exception of an action seeking only injunctive relief for a breach hereof, any controversy or claim arising out of or relating to this Agreement, or the making, performance or interpretation thereof, including without limitation alleged fraudulent inducement thereof, shall be settled by binding arbitration in New York, New York by one arbitrator in accordance with the Rules of Commercial Arbitration of the American Arbitration Association. Judgment upon any arbitration award may be entered in any court having jurisdiction thereof. |
19.5.4 | The parties hereby agree that if any dispute or controversy proceeds to arbitration, the arbitrator appointed pursuant to Section 19.5 shall award the prevailing party its costs, including reasonable attorneys' fees and costs, to the degree of such prevailing party's success. |
19.5.5 | The parties agree to continue performing their respective obligations under this Agreement while the dispute is being resolved; provided, however, if the dispute is regarding nonpayment by Customer, NAVITAIRE shall not be required to continue performance of its obligations: (a) unless Customer continues to pay all disputed amounts to NAVITAIRE or to an escrow account structured by agreement of the parties; or (b) if the continuing provision of services to Customer in the absence of receipt by NAVITAIRE of the disputed payment poses a material financial burden on NAVITAIRE. |
19.6 | Exhibits. The Exhibits attached and listed below are part of this Agreement: |
• | Exhibit A: Hosted Reservation Services |
• | Exhibit B: Hosted Revenue Management Services - Intentionally Left Blank |
• | Exhibit C: NAVITAIRE Contacts |
• | Exhibit D: Customer Contacts |
• | Exhibit E: Powered by Navitaire® Mark |
• | Exhibit F: Hosted Web Services - Intentionally Left Blank |
• | Exhibit G: Hosted Revenue Accounting Services |
• | Exhibit H: Hosted Operations Management Services - Intentionally Left Blank |
• | Exhibit J: Hosted Operations Recovery Services - Intentionally Left Blank |
Signed for and on behalf of | Signed for and on behalf of | |||||||||||||||||||||||||
CUSTOMER | NAVITAIRE, INC. | |||||||||||||||||||||||||
By: | /s/ B. Ben Baldanza | By: | /s/ J. Dabkowski | |||||||||||||||||||||||
Title: | President & CEO | Title: | Managing Director | |||||||||||||||||||||||
Company: Spirit Airlines | ||||||||||||||||||||||||||
Date: | 2-28-07 | Date: | 2-28-07 |
1 | Definitions |
1.1 | Authorization Services has the meaning set forth in Section 7.4.1 hereof. |
1.2 | Availability Request means a single system request for all one way or round trip segments to satisfy a date specific itinerary. |
1.3 | Change Control has the meaning set forth in Section 9.4.1 hereof. |
1.4 | CRS/GDS/ARS PNR means a Passenger Name Record, being an individual electronic record with a unique record locator number, containing one or more passenger names and booked Segments which contains at least one Segment booked via a CRS/GDS/ARS using Teletype/Type B connectivity or via a CRS/GDS using Type A/ EDIFACT connectivity. |
1.5 | Direct Consultation has the meaning set forth in Section 5.5 hereof. |
1.6 | Executive Review Meeting means a formal meeting attended by Customer, NAVITAIRE and any related third party required, in response to non-compliance to the specified service level measures. |
1.7 | Executive Sponsors has the meanings set forth in Exhibits C and D. |
1.8 | Incident Problem Request (IPR) means a Customer reported Hosted Services trouble report and description logged and submitted through the IPR schema in NAVITAIRE's Internet based customer support tool (Remedy). |
1.9 | Interrupted Service Minutes means, with respect to a given Reporting Period, the total number of minutes during which Hosted Reservation Services are unavailable due to Interrupted Service, excluding Planned Downtime Minutes. This time is tracked by the minute, rounded up to the nearest minute per incident. |
1.10 | Interrupted Service Report has the meaning set forth in Section 9.6.2 hereof. |
1.11 | Look to Book Ratio means the numeric result of the number of Availability Requests divided by the number of Book Reservation/End Transaction requests. |
1.12 | Minimum System Availability Target means the percentage of time in Reporting Period Minutes during a defined Reporting Period that the Hosted Services System will be available. |
1.13 | Monthly Performance Report has the meaning set forth in Section 9.6.2 hereof. |
1.14 | Passenger Boarded means a passenger boarding a Customer flight and continuing until their one-way journey is complete. |
1.15 | Planned Downtime has the meaning set forth in Section 9.2.1(c) hereof. |
1.16 | Planned Downtime Minutes means, with respect to a given Reporting Period, the total number of minutes in a Reporting Period during which Hosted Reservation Services are unavailable due to: (a) an act or omission of Customer with respect to matters described in Exhibit A, Section 7.1; (b) an event of Force Majeure; or (c) a planned, scheduled, and approved event including Hosted Services System maintenance during which a particular service, upgrade or Hosted Services System routine requires planned Interrupted Service as defined in Section 9.2.1(c). Customer may request the event be rescheduled, providing there is reasonable cause for such a delay. This notification must be made to NAVITAIRE at least twenty-four (24) hours in advance of the scheduled event. Planned Downtime Minutes will be tracked by the minute, rounded up to the nearest minute per incident. |
1.17 | Reporting Period will be a calendar month. NAVITAIRE Account Manager will measure monthly calculations simultaneous to account reviews. |
1.18 | Reporting Period Minutes means, with respect to a given Reporting Period, the total number of minutes during such Reporting Period minutes the total number of Planned Downtime Minutes during such Reporting Period. |
1.19 | Support Centre or Global Support Centre means the NAVITAIRE facility that accepts phone and Internet based Customer support tool service requests related to Hosted Services. |
1.20 | Scope Analysis has the meaning set forth in Section 3.5 hereof. |
1.21 | Software Change Request (SCR) means a specific Customer requested enhancement to the Hosted Services System with description logged and submitted through the SCR schema in NAVITAIRE's Internet based customer support tool (Remedy). |
1.22 | Stabilization Period has the meaning set forth in Section 9.4.6 hereof. |
1.23 | System Error has the meaning set forth in Section 9.4.4 hereof. |
2 | Scope of Services |
X | New SkiesTM Basic Hosted Reservation and Airport Check-In, which includes: |
• | SkySpeed® Call Center Application |
• | PNR Management System |
• | Reservation Support Tools |
• | Schedule Manager |
• | Fare and Inventory Management |
• | Payment Processing and Settlement |
• | Airport Check-In |
• | Flight Information Control and Display |
• | Agency Billing |
• | Configuration and Maintenance Utilities |
• | Reporting |
• | Internet Based Customer Support Tool |
X | SkySales® Internet-Suite, which includes: |
• | SkyPartner™ |
• | SkySeats® |
X | Computer Reservation System/Global Distribution System/Airline Reservation System (CRS/GDS/ARS) Type B/ Teletype connectivity, which includes: |
• | CRS/GDS/ARS connectivity with Sabre, Amadeus, WorldSpan and Galileo |
• | Instant Pay™ |
NA | Hosted Reservation Services Booking History Files |
X | New Skies Booking API Functionality |
X | New Skies Check-In API Functionality |
X | New Skies Voucher API Functionality |
NA | New Skies Hosted Web Check-in |
X | Standard Data Extract |
3 | Implementation Services |
3.1 | Data Center Implementation Services. NAVITAIRE will configure, install, activate, and test the necessary data center hardware and software for providing the Hosted Reservation Services to the Customer. Unless otherwise specified, this service does not include communication circuits, wireless data services, or any remote communication devices, including routers or network hardware. Client personal computers, workstations, or other Customer devices connected to the Hosted Services System are the responsibility of the Customer and must meet the minimum specifications as required by NAVITAIRE. |
3.2 | Viral Private Network (VPN) Connectivity. If Customer desires to use a virtual private network (VPN) for connectivity to Hosted Reservation Services, NAVITAIRE will evaluate such a request to determine the viability of the use of a VPN connection for either a primary or back-up data circuit. After review, NAVITAIRE will advise Customer if the request is approved and any cost which may apply, provided, however, that NAVITAIRE will fully document any cost for which it will seek reimbursement under the foregoing, it being agreed on the additional fee that will apply. |
3.3 | Network Configuration and Design Services. NAVITAIRE will supply recommended technical diagrams and will advise Customer on required network hardware requirements, for client portion of application as necessary. Customer shall have internal or third party network expertise available for the installation and configuration of their required network. |
3.4 | System Integration Services. During the implementation of Hosted Reservation Services and before production use of such services, NAVITAIRE will assist in the assessment of the compatibility of third party hardware and software with the Hosted Services System. The Customer shall be responsible for the cost of modifying or replacing any third party systems including hardware and software. For future integration services, NAVITAIRE will, upon request, provide an estimate, however, any services will be provided on a time and materials basis. |
3.5 | Scope Analysis. NAVITAIRE will conduct a Scope Analysis to gather information on Customer's desired use of the Hosted Reservation Services and outline functional capabilities of the Hosted Services System. During the Scope Analysis, NAVITAIRE will work with Customer to conduct a business process review that will define the scope of the implementation project. The Scope Analysis deliverable will be a statement of work, which defines project scope, project plan, project schedule, including NAVITAIRE and Customer responsibilities, used to determine the Target Date. |
3.6 | Customer Site Installation Services. NAVITAIRE will assist Customer with the installation and testing of the required telecommunications connection between the NAVITAIRE data center and the designated Customer facility. The Customer shall be responsible for the cost of troubleshooting or connecting the Customer's internal network. Additional technical support for on-site assistance after the initial conversion to production use of the Hosted Reservation Services shall be quoted on a project basis at the request of the Customer using the rates as outlined in Section 8.3 of this Exhibit. |
3.7 | Initial Training Services. NAVITAIRE will supply the following training and Customer agrees to participate in such training for the Hosted Reservation Services: |
3.7.1 | Up to a maximum of ten (10) days which may be attended by up to ten (10) Customer employees at the NAVITAIRE offices in Salt Lake City, Utah. If the training is not held at a NAVITAIRE facility, Customer will be responsible for trainer transportation, out-of-pocket expenses, and for providing stable training technical environment. All training will be conducted in English. Topics will include use of SkySpeed, Airport Check-In, Irregular Operations, Flight Scheduling & Fare Maintenance, and Reservations and Supervisory Features. Customer must complete basic computer familiarization and Windows training for all trainees before the initial training. |
3.7.2 | Up to five (5) days with three (3) NAVITAIRE employees on-site with Customer during cutover to the production Hosted Reservation Services. NAVITAIRE will also provide for a Cutover Priority Help Desk to address Customer's employee questions and issues from airport stations and call center on a 24 hour basis for 5 days. A dry run operational assessment will be performed prior to cut-over. This Cutover Priority Help Desk support can be extended with mutual agreement. |
3.7.3 | During the first year of the Agreement NAVITAIRE will provide Customer with an onsite supplemental training session for a maximum of five (5) days which may be attended by up to ten (10) Customer employees at the NAVITAIRE offices in Salt Lake City, Utah. If the training is not held at a NAVITAIRE facility, Customer will be responsible for trainer transportation, out-of-pocket expenses, and for providing stable training technical environment. All training will be conducted in English. Topics will include use of SkySpeed, Airport Check-In, Irregular Operations, Flight Scheduling & Fare Maintenance, and Reservations and Supervisory Features. Customer must complete basic computer familiarization and Windows training for all trainees before the initial training. |
3.7.4 | Customer will be provided an electronic copy of the user reference manual in Adobe Acrobat (PDF) format for download via the NAVITAIRE customer care web site or by CD. Technical specification and technical reference manuals are for internal NAVITAIRE use only, unless otherwise specified in this Agreement or by other arrangement. All materials provided by NAVITAIRE are in the English language unless otherwise specified within this Agreement. |
3.8 | Project Reporting. During the course of Implementation Services, the NAVITAIRE Project Manager will provide the Customer with: (a) Weekly Project Plan Update and Status Report; (b) Weekly Updated Issues/Resolution List; and (c) Executive Summary. |
(a) | Weekly Project Plan Update and Status Report. Weekly status reports will be transmitted to Customer each Monday during the provision of Implementation Services. This report will include updated status on the implementation process and an updated project plan. A list of the following week's tasks and goals will be included in the report. |
(b) | Weekly Updated Issues/Resolution List. Weekly updated issues/resolution lists will be forwarded to Customer on the same schedule as the Weekly Project Plan Update and Status Report. The Issues/Resolution List will include specific additional items discovered in the project analysis, or critical issues that deserve heightened priority apart from the project plan. The Issues/Resolution List will include the task, party responsible, date, open/close status, priority, and date of closed task. Every issue will be given a priority relative to a mutually agreed priority with Customer. Priorities will be ranked 1-5, 1 being most critical. Below is a description of each priority: |
• | Priority 1 - Urgent. All issues included in this priority are deemed critical and will be given priority attention. These issues may affect a milestone or dependency related to the Target Date completion of conversion services. Issues in this category are critical to resolve prior to other project dependencies and milestones being completed. |
• | Priority 2 - High. Issues included in this priority may affect the Target Date and require resolution prior to the completion of conversion services. |
• | Priority 3 - Medium. Issues included in this priority are not required prior to completion of conversion services, but must be finished prior to the end of Implementation Services. |
• | Priority 4 - Low. These items are not critical to either the completion of conversion services or Implementation Services but require monitoring for subsequent follow up or entry into NAVITAIRE's Internet based customer support tool. |
• | Priority 5 - Excluded. These items are deemed excluded and are either unnecessary or may be addressed in a business process change or work-around. |
(c) | Executive Summary. An Executive Summary will be provided to both the NAVITAIRE and Customer Executive Sponsors upon reaching critical milestones. These milestones will be established mutually with the Customer as the final project plan has been established. |
3.9 | Implementation Services Time Frame |
3.9.1 | During the course of planning discussions related to this Agreement, NAVITAIRE acknowledges the Target Date as requested by the Customer for completion of applicable portions of the Implementation Services. The Target Date for completion of the Implementation Services is no later than November, 2007. NAVITAIRE and Customer will detail dependencies of the project plan, in order to confirm the Target Date achievability. |
3.9.2 | Beginning on the Effective Date of this Agreement, NAVITAIRE agrees to work with Customer, using commercially reasonable efforts, to plan, coordinate, and to make progress toward completion of the required Implementation Services within the time frame preceding the Target Date. NAVITAIRE further agrees to initiate, mutually with the Customer, project-scope-analysis and project-planning communication to establish the final schedule for Implementation Services. |
3.9.3 | Customer understands that the Target Date is subject to change, as such date is dependent on, among other matters, certain third party agreements on behalf of both the Customer and NAVITAIRE. These third party agreements may include, but are not limited to, the following: |
• | Airport facility use agreements. |
• | All telecommunications and data circuits. |
• | Credit card settlement and authorization agreements. |
• | Centralized Reservation System/Global Distribution System (CRS/GDS/ARS) agreements and host provider(s) certification process. |
• | Data conversion systems. |
3.9.4 | Upon completion of the Implementation Services as described in this Exhibit A, Section 3, NAVITAIRE will provide written notification to the Customer Account Liaison named in Exhibit D, Section 2. |
3.10 | Data Conversion and Import Services |
3.10.1 | Conversion Services. If Customer has been using a third party reservation system, Customer will be responsible for converting existing reservations data into the required Hosted Reservation Services format. Hosted Reservation Services file format requirements and specifications are available to Customer upon request. |
3.10.2 | Data Conversion Assistance. If Customer desires assistance with data conversion services from a third party reservation system, NAVITAIRE will review this request, and if accommodated, such assistance will be provided on a time and materials fee basis. |
3.10.3 | Data Import Services. NAVITAIRE will automatically convert and process the Customer's PNRs into the Hosted Services System. The data conversion process will take place in three steps: |
• | Extract. An extract process will retrieve all reservations that have a flight record with an open future travel date. Only complete, or valid, reservations will be extracted from the previous reservation system data file. |
• | Conversion. After a 'block' of reservation data is extracted, the corresponding output file will be transferred to the new environment. A data validations routine will perform audits of the data quality. |
• | Import. Upon completion of the first extract file of clean data, an import routine will transfer the clean data to the New Skies compliant databases in segmented extracts. While the first is transferring, a concurrent process will commence on the second extract, transfer and import to expedite data transfer. |
3.11 | Reservations History Capture for Third Party Revenue Management Systems |
4 | Data Circuits |
4.1 | Primary and Backup Data Circuits. Customer shall be responsible for all telecommunication dedicated, dial-up, or wireless circuits used by Customer in connection with the transmission of data between the Hosted Services System and the Customer's site(s), as stated in Section 4.9 of this Agreement. |
4.2 | Facility Locations. The facility locations provided for in this Agreement are as follows: |
• | The NAVITAIRE Hosted Reservation data center will be located in Minneapolis, Minnesota, USA. |
• | The Customer's primary data center will be located in Detroit (area), Michigan, USA. The Customer will be permitted to move the primary facility upon reasonable notice to NAVITAIRE. Customer will be responsible for any costs incurred by NAVITAIRE due to the move of the Customer's primary facility. The Customer will also be permitted to maintain one or more backup facilities in its discretion at Customer's sole cost. |
5 | Included Support |
5.1 | Support Centre Support. NAVITAIRE will include English-speaking Support Centre Support via e-mail, an Internet application, or telephone. An up-to-date version of NAVITAIRE's Support User Guide will be available to Customer on NAVITAIRE's Customer Care web site. |
5.1.1 | Initial Support. Included in the first thirty (30) days following the implementation of Hosted Reservation Services, Customer is allotted, at no additional charge, a maximum number of included Support Centre Support hours as described in Exhibit A, Section 8.3. If Customer utilizes the Support Centre more than the allotted number of hours, the Support Fees in Section 5.3 hereof will apply. |
5.1.2 | Basic Support. After the expiration of initial support, Customer is allotted, at no additional charge, a maximum number of included Support Centre Support hours as described in Exhibit A, Section 8.3. If Customer utilizes the Support Centre more than the allotted number of hours, the Support Fess in Section 5.3 hereof will apply. |
5.2 | Hours. NAVITAIRE Support Centre Support is available twenty-four (24) hours per day, seven (7) days per week, excluding NAVITAIRE holidays (Christmas Eve, Christmas Day and New Year's Day). |
5.3 | Support Rate. Hours more than the applicable initial or basic support for the Support Centre will be invoiced at the rate specified in Exhibit A, Section 8.3. |
5.4 | Available Assistance. The NAVITAIRE Support Centre may be contacted for assistance in the following areas. All services are in English, unless otherwise specified in this Agreement. |
5.4.1 | Emergency. An Emergency is defined as an aircraft incident or emergency on behalf of the Customer, or Interrupted Service. Hosted Services System outages due to Customer misuse of the Hosted Services System will incur Support Fees at the rate specified in Exhibit A, Section 8.3. |
• | The NAVITAIRE Support Centre may be reached, without charge, in the event of an Emergency twenty-four (24) hours per day, seven (7) days per week by calling the number provided in Exhibit C, Section 1. |
• | The Customer will be requested to call the Support Centre and report the Emergency, in English, to the representative, or if all representatives are busy with other calls, a message may be left in English on the voicemail response system, which will page an appropriate contact. A representative of NAVITAIRE will return the Customer's call within ten (10) minutes with an acknowledgement and initial response to the Customer. |
• | Provided the Emergency is due to an outage of the Hosted Reservation Services, NAVITAIRE will advise Customer as described in Exhibit A, Section 9, regarding the status of the error or problem and the anticipated period to resolution. During normal business hours, both the NAVITAIRE Account Manager and Customer Account Liaison will be notified and briefed on the situation, with a further escalation to the Executive Sponsors for any outage exceeding one (1) hour. The Executive Sponsors will determine whether further escalation to the CEO or President level of each company is necessary. |
• | Customer is required to provide NAVITAIRE with an after-hours emergency contact numbering Exhibit D, which will be answered by the Customer when called by the NAVITAIRE support representative. |
5.4.2 | Error Reporting. Customer may report an identified Hosted Reservation Services System Error at no additional cost through the Customer Support line or the Internet based customer support facility. |
5.4.3 | Request Reporting. Customer may utilize the NAVITAIRE Internet support tool to contact the NAVITAIRE Support Centre electronically for the following service requests: |
• | Enhancement Requests |
• | New product concepts or requests |
• | Additional training requests |
• | Consulting services |
5.5 | Direct Consultation. Direct Consultation is defined as Customer-initiated contact directly to NAVITAIRE research & development personnel, thereby bypassing the NAVITAIRE Support Centre. The rates for Direct Consultation will also apply to any Customer issue which requires NAVITAIRE research & development personnel assistance that is not related to the resolution of a System Error. (An example of this might include assistance with Customer's non-standard Data Extract tool.) Direct Consultation will be invoiced at the applicable rate described in this Exhibit. |
5.6 | Third Party Interfaces |
5.6.1 | NAVITAIRE will supply and support defined interfaces to third party system utilized by the Customer only if listed in this Section or as mutually agreed in a statement of work including any additional charges that may apply. |
5.6.2 | Unless third party software is incorporated into the Hosted Services System and indicated specifically in the specifications included in this Exhibit or in a statement of work, neither NAVITAIRE nor such third party shall be liable for the performance or failure to perform of the other. |
6 | New Skies by Navitaire Functionality included in Hosted Reservation Services |
SkySpeed Call-Center Reservation System | ||||||||
General Features | ||||||||
• | Graphical reservations screens. | |||||||
• | Fee entry and payment collection. | |||||||
• | Automatic payment verification (credit card confirmed, pending or declined) | |||||||
• | On-demand itinerary print capability. | |||||||
• | Auto queue capability for quality control. | |||||||
• | Daily reservations information display. | |||||||
• | Company-wide ability to access fully functional training and test systems. | |||||||
• | Incorporated role-based user security. | |||||||
• | Ability to customize information required, e.g. mandatory, optional or not applicable. | |||||||
Availability and Fare Look-up | ||||||||
• | Integrated flight availability and applicable fares display. | |||||||
• | Availability searches by (a) flight type, (b) fare class, (c) maximum fare, (d) day of week, (e) multiple outbound and return dates, (f) multiple airport city, (g) connection type, (h) departure time, (i) maximum number of connections. | |||||||
• | Interactive calendar. |
• | Displays showing (a) total price by PNR and by individual passenger; (b) totals in multiple currencies, (c) fare rules, (d) manifest. | |||||||
• | Real-time SSR inventory availability. | |||||||
Booking Engine | ||||||||
• | Ability to book, change, divide, and cancel reservations. | |||||||
• | Ability to book unlimited number of passengers per PNR as defined by role. | |||||||
• | Ability to reserve unlimited number of flight segments per passenger, per PNR. | |||||||
• | Ability to book multiple flight connections. | |||||||
• | Ability to book non-revenue and revenue standby passengers. | |||||||
• | Ability to override fares dependent upon user security settings. | |||||||
• | Ability to assign multiple Special Service Request (SSR) codes to an individual passenger. | |||||||
• | Ability to add individual passenger identification documents. | |||||||
• | Optional seat map display showing actual seat availability. | |||||||
• | Optional pre-assigned seating. | |||||||
• | Ability to enter multiple addresses and phone numbers in a single booking. | |||||||
• | Auto-populate name and address from stored phone number. | |||||||
• | Ability to issue itinerary at airport or by mail, fax, e-mail, or XML feed to desired system. | |||||||
• | Multiple language support for itinerary printing. | |||||||
• | Ability to create airline defined mandatory comments. | |||||||
• | Three optional PNR comment types: Freeform, Manifest, and Itinerary. | |||||||
• | Ability to create up to six default pre-defined comments by user role and comment type. | |||||||
• | PNR comments limited only by database capacity. | |||||||
• | Ability to display real-time Flight Following information. | |||||||
• | Ability to associate a seat fee with a pre-assigned seat during booking.* | |||||||
• | Ability to require the same city pair on moves.* | |||||||
• | Ability to restrict or allow fare overrides once flights have been closed.* | |||||||
Customer Management | ||||||||
• | Ability to create/edit customer profiles, which includes personal details such as gender, travel documents, contact information and general comments. | |||||||
• | Ability to create customer ID's containing up to ten numeric digits.* | |||||||
Travel Agent/GDS Support (GDS Optional Connectivity) | ||||||||
• | GDS or third party record locator cross-reference for PNR retrieval. | |||||||
• | Customer, travel agency and corporate profiles maintained real-time. | |||||||
• | Travel agency or corporate number capture. | |||||||
• | Private Fares available to specific organizations. | |||||||
• | Automatic entry of the agency or corporate number upon agent login. | |||||||
• | Temporary login limited to a user associated with the same travel agency or corporation as the person currently logged in. | |||||||
Airline-Specific PNR Preferences | ||||||||
• | Define address input requirement. | |||||||
• | Enable (required or optional)/disable address fields. | |||||||
• | Enable (required or optional)/disable e-mail address. |
• | Enable (required or optional)/disable itinerary distribution option. | |||||||
• | Ability to require passenger telephone number input. | |||||||
• | Ability to book a past-date flight. | |||||||
• | Enable (required or optional)/disable passenger titles and genders. | |||||||
• | Enable optional passenger detail information - identification number, passport and visa details, infant name, gender, and age. | |||||||
• | Allow PNR hold in SkySpeed for declined credit card. | |||||||
User and Airline Support Tools | ||||||||
• | Ability to create and maintain system users and apply role-based system configuration settings by user groups. | |||||||
• | Individual user, password-protected login. | |||||||
• | Temporary supervisory log-in to perform secure functions. | |||||||
• | Configurable logoff time value for inactive sessions. | |||||||
• | Scratch pad for call-specific notes. | |||||||
• | General airline policies and procedures reference system; ability to maintain and manage airline policy and procedure information to include text information, images and URL links. | |||||||
• | Complete online user help. | |||||||
SkySales - Internet Reservation System | ||||||||
General Features | ||||||||
• | Ability to customize graphics and HTML display elements through XSLT. | |||||||
• | Server enforced role-based configuration controls to define application business logic. | |||||||
• | Customizable market date (origin and destination airport codes, currency codes and time zone settings. | |||||||
• | Customizable lists and codes for aircraft types and credit cards. | |||||||
• | Customizable contact information lists (states/provinces, countries). | |||||||
• | Customizable "look and feel" of many booking controls. | |||||||
• | Configurable itinerary distribution options. | |||||||
• | Support for localization (multiple languages) through the customization libraries. | |||||||
• | Support for local time settings by city. | |||||||
• | Ability to offer promotions to customers or travel agents. | |||||||
• | Ability for customers to self-register and manage online profile. | |||||||
• | Ability for registered members to retrieve and view past and future bookings. | |||||||
• | Full validation of form elements using JavaScript. | |||||||
• | Future expandability through modular architecture. | |||||||
• | Supported browsers include Netscape 4.7 or higher and Internet Explorer 5.0 or higher. | |||||||
SkySales - Booking Module | ||||||||
• | Ability to book, change and cancel reservations. | |||||||
• | One-way and round-trip (return) and open jaw options. | |||||||
• | Multi-leg, multi-segment flight support. | |||||||
• | Route-aware origin and destination lists. | |||||||
• | Single and date-range availability. | |||||||
• | Airline configurable day-of-flight booking. | |||||||
• | Interactive popup calendar. |
• | Online redemption of promotion discounts. | |||||||
• | Online redemption of electronic vouchers. | |||||||
• | Ability to assign SSRs (Special Service Requests) online based on availability. | |||||||
• | Support for passenger types. | |||||||
• | Ability to associate passenger titles with passenger types. | |||||||
• | Ability to configurable number of passengers per booking by booking source. | |||||||
• | Option to display single or multiple fares per flight. | |||||||
• | Request single fare class, single fare level, or dual fare levels. | |||||||
• | Ability to provide discounted web and 'regular price' comparisons. | |||||||
• | Individual passenger type fare display. | |||||||
• | Compact "Search Again" display retains customer's previous query settings. | |||||||
• | Display flights and fares selected by user prior to purchase. | |||||||
• | Summary or detailed price quote, including tax breakdown. | |||||||
• | Configurable fare rules display (fare-specific rules, universal rules, or no rule display). | |||||||
• | Optional "I Agree To Terms" enforcement checkbox. | |||||||
• | Optional Secure SSL Encryption, No Encryption, or both. | |||||||
• | Optional SSR fees. | |||||||
• | Configurable contact information lists, input boxes, and requirements. | |||||||
• | Optional inclusion of infant name, age, and adult passenger association in manifest comments. | |||||||
• | Real-time credit card validation and authorization including configurable controls for pending and declined cards. | |||||||
• | Display of confirmation number, itinerary, contact, passengers, payment, billing, fare rules, and terms. | |||||||
• | Optional link to external pages. | |||||||
• | Ability to require the same city pair on moves.* | |||||||
• | Ability to display fares lower than the original fare in SkySales.* | |||||||
SkyPartner - Travel Agency and Corporate Booking Module (if applicable) | ||||||||
• | Ability for travel agency to register IATA/ARC/ATOL/BSP number and password with airline. | |||||||
• | Ability for business to register corporate account number and password with airline for discounts, tracking, and billing. | |||||||
• | Ability for unregistered/unrecognized agencies to book flights prior to airline validation. | |||||||
• | Ability to validate/activate a pending agency/corporation following the agency's online registration. | |||||||
• | Enable travel agency/corporation to update contact information online. | |||||||
• | Ability for registered travel agency to maintain multiple individual agent log-in IDs. Information may be used for commission calculation, reporting, and billing. | |||||||
• | Travel agency number, phone, and address displayed on PNR. | |||||||
SkySeats - Seat Assignment Module | ||||||||
• | Airline customizable graphical seat map display using airline's aircraft configuration. | |||||||
• | Seat selection from seat map, seat type (window or aisle) or system generated. | |||||||
• | Seat assignment restrictions by role, class of service, and customer recognition level.* |
SkySchedule - Scheduling Application | ||||||||
General Features | ||||||||
• | Ability to create and maintain flight schedules. | |||||||
• | Ability to re-accommodate passengers to other flights. | |||||||
• | Ability to view PNRs and passengers affected by a schedule change. | |||||||
• | Ability to create non-stop flights. | |||||||
• | Ability to create direct and/or connecting, multiple leg flights. | |||||||
• | Ability to maintain routing mileage table for reporting. | |||||||
• | Ability to maintain and compare multiple schedules. | |||||||
• | Ability to change flight time, flight number, status, aircraft type, and cabin configuration. | |||||||
• | Ability to maintain automated or user-defined schedule change queuing. | |||||||
• | Ability to create and modify preliminary schedules off-line prior to activation. | |||||||
• | Ability to display detailed inventory and change history. | |||||||
• | Ability to configure availability display for real-time flight modifications. | |||||||
• | Ability to print flight schedules. | |||||||
• | Ability to maintain airline-specific cities or airport codes in the airport table. | |||||||
• | Ability to generate schedules in industry-standard formats. | |||||||
• | Ability to import and export SSIM files. | |||||||
• | Ability to maintain standby priority of a re-accommodated passenger. | |||||||
Fare and Inventory Management - SkyFare/SkyManager | ||||||||
• | Ability to create and maintain fee types, descriptions, amounts, and currencies. | |||||||
• | Ability to define applicable currency. | |||||||
• | Ability to create and maintain fare rules. | |||||||
• | Ability to set the PNR default currency based on the origin city. | |||||||
• | Ability to apply advance purchase requirement. | |||||||
• | Ability to apply a one-way or return (round-trip) flag. | |||||||
• | Ability to apply seasonality criteria to fares. | |||||||
• | Ability to specify minimum number of passengers required. | |||||||
• | Ability to maintain discrete fare classes (unaffected by standard nesting rules). | |||||||
• | Ability to specify day-of-week stay-over requirement. | |||||||
• | Ability to specify minimum/maximum stay requirement. | |||||||
• | Ability to combine fares. | |||||||
• | Ability to specify valid passenger discount types. | |||||||
• | Ability to delete fare classes. | |||||||
• | Ability to create and modify fares using file import/export. | |||||||
• | Ability to apply global fare changes. | |||||||
• | Ability to differentiate between GDS and internal AU application. | |||||||
• | Support for revenue management interface files. | |||||||
• | Ability to apply fares based on outbound and/or return flight. | |||||||
• | Ability to apply fares with specific travel and sales date restrictions. | |||||||
• | Ability to define fare classes and fare access by user role. | |||||||
• | Ability to define fare type grouping and access by user role. | |||||||
• | Ability to create system-wide default and fare-specific hold settings. | |||||||
• | Ability to validate standby fare classes. |
• | Ability to create and maintain SkySpeed and SkySales fare rule files for passenger advice. | |||||||
• | Ability to define fare override capability by user role. | |||||||
• | Ability to allow refunds. | |||||||
• | Ability to enter negative fees. | |||||||
• | Ability to maintain inventory control. | |||||||
• | Ability to create organization-specific fares. | |||||||
• | Ability to implement availability status (AVS) RECAP and/or RESYNC either automatically or manually. | |||||||
• | Ability to update AUs at a route level.* | |||||||
SkyPay - Payment Processing and Settlement | ||||||||
General Features | ||||||||
• | Ability to create and maintain payment types. | |||||||
• | Ability to enter unlimited number of payments on an individual PNR. | |||||||
• | Ability to allow PNRs to be ended with partial payment specific by role. | |||||||
• | Ability to allow PNRs to be ended with a negative balance. | |||||||
• | Ability to authorize credit cards manually. | |||||||
• | Ability to restrict refunds by payment type and/or user group. | |||||||
• | Ability to reverse a previously entered payment. | |||||||
• | Support for the following credit card transaction types: American Express, MasterCard and VISA. | |||||||
• | Settlement handled via the merchant bank or clearing service is determined by customer's geographical region and approval of NAVITAIRE. | |||||||
• | Ability to select bank direct payments via SkySpeed and SkySales.* | |||||||
• | Ability to require AVS and CW for payment verification purposes via SkySales and/or SkySpeed.* | |||||||
SkyPort - Airport Check-In System | ||||||||
General Features | ||||||||
• | Support for pre-assigned seating, use system generated check-in number. | |||||||
• | Support for printing boarding passes on a peripheral printer (supported printers may be found under Customer Requirements; Equipment Specifications). | |||||||
• | Ability to generate confirmed flight passenger lists. | |||||||
• | Ability to check in one or more passengers booked on the same PNR at the same time. | |||||||
• | Ability to board one or more passengers booked on the same PNR at the same time. | |||||||
• | Ability to display standby passenger list. | |||||||
• | Ability to issue boarding passes and bag tags for standby passengers. | |||||||
• | Ability to display flight data and remarks. | |||||||
• | Ability to print flight manifest. | |||||||
• | Ability to open, close, and lock flights. | |||||||
• | Ability to create or modify PNRs in real-time. | |||||||
• | Ability to associate or disassociate a passenger with a customer credit file. | |||||||
• | Ability to generate connection name list. | |||||||
• | Ability to generate no-show passenger list. | |||||||
• | Ability to display inventory. | |||||||
• | Ability to display daily station specific note pages for company updates. |
• | Ability to print a passenger receipt/itinerary. | |||||||
• | Ability to apply or change seat assignments. | |||||||
• | Ability to assign or remove SSR codes. | |||||||
• | Ability to display multiple SSR codes assigned to a passenger. | |||||||
• | Ability to assign a voucher to a passenger. | |||||||
• | Ability to input and retrieve Flight Following information. | |||||||
• | Ability to re-accommodate passengers for irregular operations (IROP). | |||||||
• | Ability to display historical manifests including checked and no-show passenger details. | |||||||
• | Ability to report gender count and weight categories for passenger driven weight and balance calculation. | |||||||
• | Support for airport add/collects. | |||||||
• | Support for cash-out sales by agent. | |||||||
• | Support for agent logon security. | |||||||
• | Support for multiple aircraft configurations. | |||||||
• | Ability to hold or block a seat. | |||||||
• | "Get Smart" (GS) general airline policies and procedures reference system. | |||||||
• | Online help system. | |||||||
• | Automatic generation and printing of bag tags. | |||||||
• | Access to airport user reports, Flight Following, Irregular Operations (IROP), and message generation (internal and teletype). | |||||||
• | Ability to cancel/suspend inventory. | |||||||
• | Support for ARINC/MUSE and SITA/CUTE including terminal emulation, boarding pass and bag tag printing (airline certification required). | |||||||
• | Ability to allow or prevent agents from viewing or editing passengers who are on Lock or Warning queues, such as the Watch List queue.* | |||||||
• | Ability to specify the amount of time allowed to open or close flights after flight departure time.* | |||||||
• | Ability to prompt for AU updates during equipment swap.* | |||||||
• | Ability to generate outbound BSM messages. | |||||||
• | Ability to accept and process MVT messages for flight information updates. | |||||||
• | Ability to transmit APIS data directly to government authorities, via EDIFACT messaging. | |||||||
• | Address in country/CBP - APIS enhancements. | |||||||
Global Distribution System (GDS) Connectivity |
General Features | ||||||||
• | Offer Type-B messaging capabilities per IATA/Airimp standards, with the following GDSs: SABRE, WorldSpan, Galileo, Amadeus, and Apollo. | |||||||
• | Ability to guarantee ticketing with automated credit card approval/settlement through the SkyPay system. | |||||||
• | Ability to automatically cancel held bookings when payment is not received in the established timeframe, and to send this notification to the GDS/travel agency via Teletype messaging. | |||||||
• | Ability to notify GDS/travel agency of schedule changes via Teletype ASC messaging. | |||||||
• | Ability to transmit availability status messages to GDS customers via teletype AVS messaging. | |||||||
• | Ability to process and reply to initial booking requests, change and cancel requests, DVD (divide number in party) and CHNT (change name) messages. |
• | Ability to calculate price and reply to GDS/travel agency with the "amount due" for the external booking request. | |||||||
• | Ability to define passenger titles accepted and processed from GDS/travel agency booking requests. | |||||||
• | Ability to view all inbound and outbound teletype communications with the GDS/travel agencies within the PNR history, based on user security. | |||||||
• | Ability to view rejected teletype messages with a clearly defined reason for the rejection. | |||||||
• | Ability to correct rejected teletype messages and resend via SkySpeed. | |||||||
• | Ability to validate an agency/corporate number against the airline's internal agency/corporate table. | |||||||
• | Ability to set last seat availability or any specified trigger level for GDS bookings. | |||||||
• | Ability to establish the booking currency using the currency defined in the Type-B message. Ability to use travel agency specific currency (from agency table) if not indicated in the booking message. | |||||||
• | Ability to configure GDS booking configurations to allow or disallow: hold time, promotion codes, agency payment automatic confirmation, name change after ticketing, hold time, and auto-creation of credit upon PNR cancellation. | |||||||
• | Ability to specify which classes of service may be sold by the GDS/travel agency. | |||||||
• | Ability to auto-debit agency credit account for PNR booked or use agency credit when an applicable SSR message is received. | |||||||
• | Ability to maintain travel agency and corporation identification tables. | |||||||
Note: Customer is responsible for negotiating and maintaining the appropriate agreements for this connectivity (typically full availability participation) and for travel agency settlement. | ||||||||
Instant Pay | ||||||||
• | Ability to accept and process passenger or agency credit card for booking confirmation. | |||||||
• | Ability to auto-debit travel agency credit account for booking confirmation or debit agency credit when applicable SSR message is received. | |||||||
• | Payment amount notification returned to travel agent via participating GDS. | |||||||
SkyReport - Reporting | ||||||||
General Features | ||||||||
• | Ability to run 'on-demand' reports which may be exported in various data formats including XML, Excel, PDF and comma delimited. | |||||||
• | Ability to display up to 1,000 city pairs on select reports. | |||||||
• | Option to request NAVITAIRE report development at an additional charge. | |||||||
Standard Reports | ||||||||
The following is an alphabetical list and description of the standard reports available as a part of Hosted Reservation Services. These reports may be added to, deleted, modified, changed, eliminated or substituted for at the discretion of NAVITAIRE at any time. The reports are viewed online via a browser interface. | ||||||||
• | Agency List. Displays information about the travel agency, corporate or Air Travel Organizer's License (ATOL) accounts that are stored by the airline. | |||||||
• | Agency List Summary. Summary view of the Agency List Report. | |||||||
• | Availability Information. Displays flight availability information, including lid, capacity, seats sold and GDS trigger, for selected flights. |
• | Booking by Agent. Displays total bookings created by a system user, by currency, along with booking status (confirmed or held), number of PNRs, and number of passengers/segments. | |||||||
• | Bookings by Agent Detail. Displays detailed information on bookings made by individual booking agents (users). | |||||||
• | Bookings by Agent Restricted. Location-specific Bookings by Agent report. | |||||||
• | Bookings by Distance. Displays base and gross revenue by seat mile/kilometer on a specific date or within a specified date range for flights between two cities. | |||||||
• | Bookings by Fare Class. Displays passenger/segment booking and fare totals by fare class. | |||||||
• | Bookings by Market. Displays passenger totals, booking amounts, and average fares for individual markets (origin and destination cities). | |||||||
• | Bookings by Origin. Displays segment booking information (total segments and fare amounts by currency) for each originating city. | |||||||
• | Bookings by Source. Displays the number of segments and total fares, by currency, according to booking source: internal bookings, Internet bookings, GDS (GDS) bookings, and bookings made by travel agencies. | |||||||
• | Bookings by Time. Displays booking information in hourly increments. The report breaks out the total number of booked segments and fare amounts for a specific booking date, according to time of day the bookings occurred. | |||||||
• | Cancellation after Travel Date. Displays passenger and fare information from cancelled flight segments sorted by date, user ID, and PNR. | |||||||
• | Cancelled Inventory with Passengers. Provides the number of passengers who may need to be re-accommodated to another flight due to a cancellation of the original flight(s). | |||||||
• | Check-In. Displays the check-in status and phone numbers of individual passengers for a specific flight. | |||||||
• | Checked Baggage. Displays baggage information for flights on a specific date or within a specified date range. | |||||||
• | City Pair Load Factor. Displays passenger totals, load factor, ASM, Revenue, RPM, yield, RASM, and other data by city pair as well as by individual flights serving each city pair. | |||||||
• | Commissions Incurred. Displays commission information for each agency/corporation generates bookings for the airline. | |||||||
• | Confirmed Bookings by Date. Displays reservation, passenger, segment, and revenue totals, by currency code; it also provides separate listings for travel agency/corporate reservation, passenger, and segment totals. | |||||||
• | Credit Shell/File. Displays credit shell/file activity and balance on a specific date or within a specified date range. | |||||||
• | Credit Shell/File Expired. Lists expired credit files and credit shells for a specified time period. | |||||||
• | Days-Out Bookings. Displays information about segment bookings made on a specific date, showing the days in advance of (days out from) the actual travel date these bookings were made. | |||||||
• | DOT Non-Stop Market. Designed to meet U.S. Department of Transportation requirements, this report displays non-stop market information, including revenue flights, payload, available seats, revenue passengers, and minutes a flight is airborne. | |||||||
• | DOT On-Flight Market. Designed to meet U.S. Department of Transportation requirements, this report displays passenger totals for flown flights within specified markets. |
• | DOT 10% Sampling. Designed to meet U.S. Department of Transportation requirements, this report provides fare and itinerary information on a 10% random sampling of the confirmed, revenue generating passengers for a quarter. | |||||||
• | Duplicate Bookings. Displays different PMRs for the same flight and date that contain identical passenger names. | |||||||
• | Earned/Unearned Revenue. Displays information on earned (flown) revenue, unearned (no-show, unflown) revenue, or both for flights between a designated city pair. | |||||||
• | Enplanements / Deplanements. Displays either enplanements or deplanements by airport on a specific date or within a specified date range. | |||||||
• | Fare Overrides. Displays fare override information by agent, including original fare amount, amount actually charged (overridden fare), and amount discounted. | |||||||
• | Fees and Discounts. Displays fees and discounts, by currency and type, entered into the system. | |||||||
• | Flight Capacity/Lid. Displays information on seat capacity (or lid), availability, and load percentages. | |||||||
• | Flight Close. Displays final close out information for a specific flight, including passenger names and passenger status information. | |||||||
• | Flight Line. Displays passenger counts for a specific flight or all flights on a specified date. | |||||||
• | Flight Load. Displays passenger totals for flights on a specified date, including the number boarding in the departure city, number traveling through, total passengers, and number checked in. | |||||||
• | Flight Schedule. Displays scheduled departure cities and times for flights, as well as the number of stops a particular flight makes and the days of the week it flies. | |||||||
• | Flight Specific Load Factor. Displays load factor information for one or more day(s) of the week, for one or all origin or destination cities, or for a specified range of flight numbers. | |||||||
• | Inventory Capacity. Displays capacity, lid, net seats sold, and seats sold today for flights between different city pairs. | |||||||
• | Load Factor Search. Displays above or below load factor percentage based on capacity or lid. | |||||||
• | Lock List. Displays all passengers on PNRs that are on the lock list by flight date and origin location. | |||||||
• | Lock List History. Allows the user to view or print all PNRs that have been cleared on a selected date. | |||||||
• | Manifest with Trip Detail. Displays detailed trip information for each passenger booked on a specific flight. | |||||||
• | Net Sales. Displays the sales netted, including the breakdown of the segment charges, fees and taxes for a selected period. Additionally, an error report titled Sales Exceptions may be printed. The Sales Exceptions report displays a list of the PNRs that have segment and payment amounts not in balance. | |||||||
• | Payment Receipts. Displays information about all payments made on a specified date, including payment or batch code, payment text, PNR, bank authorization, requested amount, and payment amount. | |||||||
• | Payment Receipts Restricted. Location specific Payment Receipts Report. | |||||||
• | PNR Out of Balance. Displays information on reservations that have a credit and/or balance due. |
• | PNRs on Queue. Displays information about all PNRs that are currently awaiting processing in one or more queues. | |||||||
• | Promo Codes by Booking Date. Displays information on PNRs with promo codes booked on a specific date or within a specified date range. | |||||||
• | Promo Codes by City Pair. Displays information on promo codes booked for a specified city pair. | |||||||
• | Refunds. Displays refunds made by a specific department(s) on a specific date or within a specified date range. | |||||||
• | Revenue by Distance. Displays base and gross revenue by seat mile/kilometer on a specific date or within a specified date range for flights between two cities. | |||||||
• | Revenue by Fare Class. Displays revenue by fare class on a specific date or within a specified date range. | |||||||
• | Revenue by Flight. Displays revenue by average seat mile/kilometer for individual flights. | |||||||
• | Revenue by Market. Displays passenger totals, booking amounts, and average fares for individual markets (origin and destination cities). | |||||||
• | Sales Exceptions. Provides a list of the PNRs that have segment and payment amounts not in balance. | |||||||
• | Seat Assignments. Displays the name, PNR, and status of each passenger by assigned seat for a specific flight. | |||||||
• | Seats Sold by Fare Class. Displays the number of seats sold in each fare class by flight date and flight number within a specified date range. | |||||||
• | Segment Activity by City Pair. Displays information, broken down by city pair, on confirmed and/or unconfirmed booking amounts and passenger totals. | |||||||
• | Travel Agency Payments. Displays information on payments made to an individual travel agency or all travel agencies. | |||||||
• | Unapproved Payments. Displays all payments, by payment dates, that are currently pending or have been declined. | |||||||
• | Voucher Status. Displays status information on vouchers associated with a particular voucher code or all voucher codes. | |||||||
• | Watch List Detail. Allows you to print all data for a single Watch ID, a range of Watch IDs, or all Watch IDs. This report displays name, place of birth, all alias names, all addresses, all dates of birth, all phone numbers, all e-mail addresses, and all other data that has been entered. | |||||||
Flight Information Control and Display (FLIFO) | ||||||||
General Features | ||||||||
• | Ability to input and update flight departure and arrival information. | |||||||
• | Ability to accept and transmit industry MVT messages. | |||||||
Agency Billing and Commissions | ||||||||
General Features | ||||||||
• | Ability to create, maintain and retrieve travel agency commissions, charges and payments data. | |||||||
• | Ability to set up to four different commission rates based on distribution channel for each agency. | |||||||
• | Ability to create an invoice line of credit for travel agencies and corporations. |
• | Ability to schedule XML extract containing agency billing and commission data. | |||||||
• | Ability to calculate commissions at statement date.* | |||||||
• | Ability to include the journey details in the ABC (Agency Billing and Commission Extract.* | |||||||
SkyManager - Configuration and Management Utility | ||||||||
General Features | ||||||||
• | Graphical tool provides single point for management of system settings, airline, and user configurations. | |||||||
• | Ability to create and maintain passenger-discount-type codes by currency, discount percentage or amount, applicable fare class(es), and applicable taxes. | |||||||
• | Ability to define user security roles and login requirements. | |||||||
• | Define vouchers to include credit type, expiration, maximum passengers, class of service, travel dates and market restrictions. | |||||||
• | Ability to allow and restrict advanced seat assignments by role. | |||||||
• | Ability to maintain individual airline country codes. | |||||||
• | Ability to maintain individual airline currency codes. | |||||||
• | Ability to create and maintain daily and real-time company notes. | |||||||
• | Ability to allow or restrict overbooking. | |||||||
• | Ability to move a passenger to an alternate flight (up to 999 days) while retaining the original confirmed fare and taxes. | |||||||
• | Ability to utilize IATA and/or airline-specific SSR codes. | |||||||
• | Ability to create and maintain taxes. | |||||||
• | Ability to create and maintain travel fees. | |||||||
• | Ability to specify SSR inventory by aircraft type. | |||||||
• | Ability to maintain delay code table. | |||||||
• | Ability to create and maintain passenger discount types. | |||||||
• | Ability to create and maintain promotional discount codes. | |||||||
• | Ability to create and maintain queues. | |||||||
• | Ability to apply payment fees in any of the sales applications and to configure as a fixed amount or a percentage. Fees can also be configured to be charged per flight segment, per passenger, or per itinerary.* | |||||||
• | Ability to synchronize inventory between multiple systems.* | |||||||
• | Ability to set restriction levels on individual queue categories.* | |||||||
• | Ability to set fee amounts based on the channel through which a booking is made or edited.* | |||||||
• | Ability to prompt with a warning when making tax or fee rate changes.* | |||||||
• | Ability to apply or exempt penalty fees upon reservation changes or cancellations based on the following values: Organization, Person or Fare Class.* | |||||||
• | Ability to allow stations to be exempt from certain taxes and fees; for example, rural airports where a PFC is not charged.* | |||||||
• | Ability to set variable credit expiration criteria for credit types.* | |||||||
• | Ability to add variable taxes for fees.* | |||||||
• | Ability to add payment validation and authorization restrictions.* | |||||||
• | Ability to allow Web Services to be managed by the system master using roles and permissions. This functionality allows the enabling and disabling of Web Service methods (functions) with granularity to the method level.* |
Message Interface (Type B) | ||||||||||||||
• | Support of the following Type B messages: | |||||||||||||
• | Baggage Service Messages (BSM). | |||||||||||||
• | Operation System Messages, PXA, PXB, MVT. | |||||||||||||
• | Accept and reply to AIRIMP industry standard booking messages. | |||||||||||||
Security | ||||||||||||||
General Features | ||||||||||||||
• | Ability to hide or display the credit card number used as payment on a PNR. | |||||||||||||
• | Create and maintain table of restricted credit cards. | |||||||||||||
• | Ability to enable or disable the security watch list. | |||||||||||||
• | Ability to define and maintain government or airline watch list for reservation/passenger matching, queuing and check-in lock. | |||||||||||||
• | Option to require a unique customer ID for each passenger booked in a reservation. | |||||||||||||
• | Ability to automate updates to the U.S. Securities Watch List through a scheduled job.* | |||||||||||||
Customer Support System | ||||||||||||||
General Features | ||||||||||||||
• | Integrated system monitoring "Site Scope". | |||||||||||||
• | NAVITAIRE has an established review process for managing online Incident Problem Requests (IPRs) and Software Change Requests (SCRs) that provides customers with the following: | |||||||||||||
• | Ability to submit online service requests 7 days per week/24 hours per day. | |||||||||||||
• | Ability to review status, research notes, assigned priority, etc., of an online incident problem and request at any time. | |||||||||||||
• | Ability to search for specific requests and print them onto a report. | |||||||||||||
• | Ability to enter update information regarding existing incident problem and request online at any time. | |||||||||||||
• | Ability to attach up to 5 files to an incident problem and request. | |||||||||||||
Application Program Interfaces (APIs) | ||||||||||||||
General Features | ||||||||||||||
Navitaire offers optional Web Services that enable select API functions supported by the New Skies Reservations system. These APIs support a number of functions including: | ||||||||||||||
Booking API Functionality | ||||||||||||||
• | Ability to obtain inventory and fare availability for flights in a market. | |||||||||||||
• | Ability to obtain inventory and fare availability for a whole itinerary. | |||||||||||||
• | Ability to price an itinerary including all fares, taxes, and fees. | |||||||||||||
• | Ability to display fare rule content. | |||||||||||||
• | Ability to create or cancel bookings for specified flights. | |||||||||||||
• | Ability to obtain SSR availability for specified flights. | |||||||||||||
• | Ability to book or cancel specified SSRs. | |||||||||||||
• | Ability to retrieve a booking by record locator. | |||||||||||||
• | Ability to display seat maps for specified flights. | |||||||||||||
• | Ability to assign or unassign seats on specified flights for one or more passengers. |
• | Ability to accept schedule changes made to segments in a booking. | |||||||
• | Ability to retrieve bookings by specified search criteria including 3rd party record locators. | |||||||
• | Ability to display booking history and payment information. | |||||||
• | Ability to retrieve stored baggage information by record locator. | |||||||
Check-in API Functionality | ||||||||
• | Ability to interact with 3rd party vendors including kiosk check-in service providers. | |||||||
• | Ability to retrieve passenger and flight information by credit card, passenger record locator, flight and passenger name, or customer number. | |||||||
• | Ability to display airline generated seat maps. | |||||||
• | Ability to request or change seat assignments for specified passengers. | |||||||
• | Ability to confirm the check-in status for specified passengers and generate boarding passes. | |||||||
• | Ability to generate baggage tags for specified passengers. | |||||||
• | Ability to reprint boarding passes for checked-in passengers. | |||||||
Voucher API Functionality | ||||||||
• | Available for a third party vendor to create and void vouchers. | |||||||
Optional Hosted Web Check-in (Not Applicable) | ||||||||
General Features | ||||||||
• | Ability to retrieve passenger and flight information by credit card number, passenger record locator, flight and passenger name, or customer number. | |||||||
• | Ability to display airline generated seat maps. | |||||||
• | Ability to request or change seat assignments for specified passengers. | |||||||
• | Ability to confirm the check-in status for specified passengers and generate boarding passes. |
* | Functionality available in New Skies Release 1.2.5 and subsequent releases. |
7.1 | Upgrades. Subject to Article 7.3 of the Agreement, Customer is required to maintain the latest version of supported NAVITAIRE and related third party software as directed by the NAVITAIRE Support Centre. Upon receipt of upgraded software, newer versions or software, or notification of third party software updates, Customer must update their software versions within thirty (30) days. Failure to complete the advised upgrades may result, at NAVITAIRE's option, in the suspension of Included Support as described in Exhibit A, Section 5. |
7.2 | Equipment Specifications. These equipment specifications outline the required, supported hardware and software necessary for the proper function and efficient operation of the Hosted Reservation Services and applicable products. Unless otherwise specified in this Agreement, the equipment and software listed below are the responsibility of the Customer. This list may not be all-inclusive, depending on the technical requirements of the Customer. |
Call Center PC/Workstation (for SkySpeed) | ||||||||
• | Processor: Intel Pentium class processor (any speed greater than 1 GHz). This includes Pentium 4 and M class machines. | |||||||
• | Disk space: Minimum of 10 GB of hard disk space for operating system and NAVITAIRE software. | |||||||
• | Operating system: Microsoft Windows 2000 and Windows XP operating systems | |||||||
• | Monitor: 15" color SVGA monitor (minimum of 1024x768 resolution). Non-interlaced monitors recommended. | |||||||
• | Memory: Minimum of 256 Megabytes of RAM. | |||||||
• | Network interface card: 100MB Network Interface Card (TCP/IP protocol). | |||||||
• | Mouse: PS/2 Mouse or other Microsoft Compatible Pointing Device. | |||||||
Airport Check-In PC/Workstation or Terminal | ||||||||
A Wyse model 52 terminal or a PC Workstation with a configuration as follows: | ||||||||
(a) | Processor: Intel Pentium class processor (any speed greater than 500 MHz). This includes Pentium II, and Pentium III class. | |||||||
(b) | Disk space: Minimum of 4 GB of hard disk space for operating system and NAVITAIRE software. |
(c) | Operating system: Airport Check-In software runs with the terminal emulation software listed below and Microsoft Windows 2000. | |||||||
(d) | Monitor: 15" color SVGA monitor (minimum of 1024x768 resolution). Non-interlaced monitors recommended. | |||||||
(e) | Memory: Minimum of 128 megabytes of RAM. | |||||||
(f) | Network interface card: Network interface card: 100MB Network Interface Card (TCP/IP protocol). | |||||||
(g) | Mouse: Mouse or other Microsoft Compatible Pointing Device. | |||||||
(h) | Terminal emulation software: Reflections (version 6.0 or higher); or Minisoft (version WS92 32 bit) per client workstation; or NAVITAIRE Terminal Emulator. | |||||||
(i) | Serial ports: Minimum of two required. | |||||||
Airport Peripheral Equipment | ||||||||
Bag Tag Printers | ||||||||
• | IER514 or IER508 TCP/IP bagtag printers. The manufacturer of the printer may supply additional bag tag stock information and specification. | |||||||
• | Vidtronix TCP/IP bagtag printers. This is a new solution and will require custom coding for implementation at the hourly rates described in Exhibit A, Section 8.3. | |||||||
• | ARINC/SITA Common Use Environments. | |||||||
Boarding Pass Printers | ||||||||
• | Epson TMT-88 or TMT-90 thermal receipt printers. Specifications for thermal roll stock are available from the printer manufacturer. | |||||||
• | ARINC/SITA Common Use Environments. | |||||||
E-mail Server | ||||||||
• | Must be scalable and robust to handle anticipated e-mail volume for receipt e-mailing to passenger. | |||||||
• | Refer to e-mail software instructions and technical documentation for proper hardware configuration. | |||||||
• | Customer may consider third party e-mail hosting or e-mail broadcast services available. | |||||||
Fax Server | ||||||||
• | Must be scalable and robust to handle anticipated fax volume for fax transmissions to passengers. | |||||||
• | Captaris RightFax Server software recommended. | |||||||
• | Refer to fax software instructions for proper hardware configuration and sizing. | |||||||
• | An optional XML feed of itinerary information is available for distribution via your desired fax system. | |||||||
Printers, Scanners, and Peripherals (if applicable) | ||||||||
Customer should contact NAVITAIRE for recent information regarding supported printers and peripherals. Currently supported printers and scanners are: | ||||||||
• | Printers: Printers that are TCP/IP capable and support the HP JetDirect network interfaces. |
• | Scanner: Any keyboard-bypass scanner (hooks in via the keyboard port) that supports a Code-39 barcode. | |||||||
Network Hardware, Software, and Data Circuits | ||||||||
• | Data Circuits: Customer must already have or must install the necessary equipment and circuits to support their primary call center sites and remote locations, including field stations. NAVITAIRE requires a LAN/WAN network supporting TCP/IP protocols. | |||||||
• | Routers, DSU/CSUs, and Modems: Customer should contact NAVITAIRE for recent information regarding supported routers and other network communication equipment. | |||||||
• | IP Addressing: NAVITAIRE requires that all hosted Customers use Internet Registered IP addresses on all client workstations or devices that require connectivity to the Hosted Reservation Services. Alternatively, NAVITAIRE requires a NAT (Network Address Translation) router to be installed behind the NAVITAIRE gateway router. The NAT must then have the Internet Registered IP address. | |||||||
• | Customer Provided Data Circuits: NAVITAIRE requires a review of the proposed primary or backup data circuit(s) prior to a third party agreement and installation. Where possible, NAVITAIRE will use reasonable effort to provide all necessary specifications and extend management of the data circuit as permitted by the Customer and the third party supplying the data circuit(s). If VPN connectivity is desired, VPN services will be handled by Blue Ridge Virtual Private Networks; any other VPN providers require NAVITAIRE approval. |
7.3 | Third Party Software. Customer is required to purchase directly from providers other related third party software licenses necessary to use the Hosted Reservation Services, including the following: |
• | Local network server operating system(s) license: Microsoft Windows NT 4.0, Novell, or similar Operating System supporting TCP/IP protocols. |
• | Terminal emulation software: Reflections (version 6.0 or higher); or Minisoft (version WS92 32 bit) on each client workstation requiring access to reporting and airport check-in capabilities. |
• | Print spooling software: Espul software required for non-Jet Direct network printers. |
• | Office Extend Fax (Fax server): (Optional) |
• | Reporting: Microsoft Reporting Services for New Skies report development and access. |
• | Airports: Re-certification of the ARINC/SITA emulators to support the New Skies airport interface. |
7.4 | Credit Card Processing Settlement |
7.4.1 | Banks and Services. NAVITAIRE currently supports the following services for Authorization Services: |
• | Credit Card types: NAVITAIRE currently supports VISA, American Express, MasterCard, JCB, Diners Club, and discover Card Transactions. Not supported are debit cards, ATM cards other credit cards requiring an accompanying Personal Identification Number (PIN). |
• | Debit Cards: NAVITAIRE currently supports regional debit cards such as Visa Electron (EL), Visa Delta, Visa Connect, Switch/Solo, Maestro, and Laseer. Not supported are debit cards requiring a Personal Identification Number [PIN], ATM cards, or private label credit cards. |
• | ELV: Ability to use an Elektronisches Lastschriftverfahren (ELV) form of payment through European payment gateway. |
• | Authorization: Authorization handled via the most appropriate NAVITAIRE supported provider for the Customer's area, such as Vital Systems, FDMS, First Data Merchant Services (USA), BCE Emergis (Canada) and Barclay's or NatWest(UK/Europe). |
• | Settlement: Settlement handled via appropriate merchant bank or clearing service as determined by Customer's geographical region upon approval of NAVITAIRE. Upon request, NAVITAIRE will provide specifications for settlement records, which are required for conformity by the Customer's selected bank. Upon written notice to NAVITAIRE and to the authorization and settlement institutions, NAVITAIRE may act as the Customer's agent to order and facilitate installation of these circuits. |
• | Verified by Visa & MasterCard Secure Code: Optional programs for Customer to participate in with their acquiring banks and / or payment service provider. Functionality is fully dependent upon the acquiring bank and / or payment service provider. |
• | Fraud Prevention: NAVITAIRE will use reasonable commercial efforts to support current and future fraud-detection and fraud-prevention functionality offered by all supported payment authorization services. These efforts will be handled as described in Sections 9.4.2 and 9.4.3 of the Exhibit A. |
• | PCI Compliance: NAVITAIRE will remain in compliance with the Payment Card Industry's Data Security Standards in force at the time of execution of this Agreement, and as may be applicable to NAVITAIRE. Both parties acknowledge the importance of Customer's ability to accept credit card payments. NAVITAIRE will use commercially reasonable efforts to work Customer in |
order to assist in respect of Customer continued acceptance credit card payments. These efforts will be handled as described in Sec9on 9.4.2 and 9.4.3 of this Exhibit A. |
7.4.2 | Data Circuits. Customer must arrange and pay for necessary circuits for authorization and settlement file transmissions. NAVITAIRE may act as the Customer's agent to order and facilitate installation of these circuit upon written request by the Customer. |
7.5 | CRS/GDS Agreements and Connection Fees (to Support Optional CRS/GDS/ARS Connectivity). Customer must negotiate and have in place, no later than sixty (60) days prior to the Target Date, the necessary participating agreements with each of the NAVITAIRE supported Computerized Reservation System/Global Distribution System providers or airline and associated Airline Reservation System (ARS) providers. Implementation, integration, connection and Service Fees as described in Exhibit A, Section 8 and fine charges may apply. NAVITAIRE will order and facilitate the installation of all circuits required to process CRS bookings, upon written notice from Customer. |
8 | Fee Schedule |
8.1 | Service Fees |
8.1.1 | Recurring Service Fees - Core Services/Products |
Rate Tier | Hosted Reservation Services Airport Check-in and SkySales Internet Suite | |||||||
Per Passenger Boarded | ||||||||
All Passengers Boarded | [***] per Passenger Boarded |
(a) | Drop Down Rate. A drop down rate [***] per Passenger Boarded applies to all passengers boarded over the Guaranteed Minimum Passengers Boarded as defined in Section 8.1.1(b) of this Exhibit. |
(b) | Annual Guaranteed Minimum Passengers Boarded "AMGPB". Customer agrees to guarantee and to pay for a minimum of the total number of passengers boarded according to the table below. This table will also be used for the purposes of calculating the minimum recurring Service Fees, effective upon the Target Date: |
Year | Annual Minimum Guarantee of Passengers Boarded "AMGPB"* | |||||||
(Passenger Boarded) | ||||||||
[***] | [***] |
Month | Guarantee Schedule for December 2007- November 2008 Seasonality Allocation | Number of Guaranteed Minimum Passengers Boarded per month based on Annual Guaranteed Minimum Passengers Boarded (% multiplied by AMGPB)** | Minimum Monthly Fee | |||||||||||||||||
December | [***] | [***] | [***] | |||||||||||||||||
January | [***] | [***] | [***] | |||||||||||||||||
February | [***] | [***] | [***] | |||||||||||||||||
March | [***] | [***] | [***] | |||||||||||||||||
April | [***] | [***] | [***] | |||||||||||||||||
May | [***] | [***] | [***] | |||||||||||||||||
June | [***] | [***] | [***] | |||||||||||||||||
July | [***] | [***] | [***] | |||||||||||||||||
August | [***] | [***] | [***] | |||||||||||||||||
September | [***] | [***] | [***] | |||||||||||||||||
October | [***] | [***] | [***] | |||||||||||||||||
November | [***] | [***] | [***] |
* | All passengers boarded in excess of these monthly minimum guarantees will be invoiced per terms described in Section 6.3 of this Agreement. |
** | The total of this column will always equal the applicable year of Annual Minimum Guarantee of Passengers Boarded (AMGPB)* |
8.1.2 | Monthly Recurring Service Fees - Connectivity Services/Products - GDS/CRS/ARS Connectivity. |
Description | GDS/CRS/ARS Connectivity (Base AVS Type B) | |||||||
Price per GDS/CRS/ARS Type B/Teletype Connection | ||||||||
Up to 150,000 segments in PNRs booked via a GDS/CRS/ARS Type B/Teletype. | [***] minimum fee per month per GDS/CRS/ARS | |||||||
Over 150,000 segments, per segment, in PNRs booked via a GDS/CRS/ARS Type B/teletype | [***] per segment |
8.1.3 | Monthly Recurring Service Fees - Connectivity Services/Products - APIs. |
Application Programming Interfaces (API) Functionality ] | ||||||||
Description | Flat Monthly Fee* | |||||||
Booking API Functionality | [***] for up to 50,000 booked segments, [***]/booked segment above 50,000 | |||||||
Check-in API Functionality | [***] for up to 50,000 booked segments, [***]/ booked segment above 50,000 | |||||||
Voucher API Functionality | [***] for up to 1M vouchers, [***] over 1M vouchers | |||||||
* Use of Standard SkySales toolkit will not incur API charges |
8.1.4 | Monthly Recurring Service Fees - Additional Data Storage*. |
Segment Count | Monthly Fee | |||||||
For every 1,000,000 Host Segments stored in excess of three (3) months | [***] per month |
* | Provides Customer access to completed travel and historical data storage greater than three (3) months. |
8.1.5 | Optional Monthly Recurring Service Fees - Connectivity Services/Products - Hosted web Check-in. (Applicable only if selected in Section 2 of this Exhibit A) NOT INCLUDED: |
Description | Hosted Web Check-in NOT INCLUDED | |||||||
Flat Monthly Fee | ||||||||
Hosted Web Check-in | [***] |
8.2 | Implementation Fees |
Production/Service Description | Implementation Fees* (including Training) | |||||||
Hosted Reservation Services with SkySpeed Graphical User Interface | [***] | |||||||
SkySales Internet-Suite | [***] | |||||||
SkyPort - Airport Check-In | [***] | |||||||
SkyReports | [***] | |||||||
Configuration & Maintenance Utilities | [***] | |||||||
Fare and Schedule Manager | [***] | |||||||
Standard CRS/GDS/ARS Connectivity and/or/Instant Pay - Type B | [***] | |||||||
APIs • Booking API Functionality • Check-In API Functionality • Voucher API Functionality | [***] | |||||||
Hosted Web Check-in | [***] |
* | Implementation Fees exclude travel expenses and any new development. |
8.3 | Support Fees |
Support Centre Support | Fees* | |||||||
Initial Support: For first thirty (30) days after implementation, sixty (60) available hours of included Support Centre Support. | [***] | |||||||
Basic Support: After initial support, ten (10) monthly available hours of included Support Centre Support. | [***] | |||||||
Additional Normal Hourly Support, Additional Training Requests, or Additional Development scheduled through NAVITAIRE: User support more than initial or basic support hours or as otherwise described in this Agreement. | [***] | |||||||
Engineer Direct Support: Expert support for the Hosted Reservation Services subsystems, such as SkySales, APIs, GDS Connectivity, or Customer third party systems or interfaces as scheduled through the NAVITAIRE Support Centre. | [***] | |||||||
Direct Consultation Support: Customer initiated contact directly to NAVITAIRE research & development personnel and other direct consultation, thereby bypassing the NAVITAIRE Support Centre. | [***] |
8.4 | No additional charge will apply with respect to transfer of information to a third party revenue management system. |
8.5 | Other Fees |
Other Fees | Fees | |||||||
Custom Programming | [***] | |||||||
Dedicated Account Management | [***] | |||||||
Business Process and Consulting Services | [***] |
8.6 | Payment of Implementation Fees. Immediately upon signing this Agreement, all Implementation Fees are due and payable. The Implementation Fee due on signing is USD [***]. Any remaining balances of all Implementation Fees are due and payable on the earlier of: (a) the day the first production reservation is made using the Hosted Reservation Services; or (b) the Target Date as detailed in Exhibit A, Section 3.9.1 provided, however, that NAVITAIRE does not request a delay as described in this Exhibit A, Sections 8.7.2 and 8.7.4. |
8.7 | Fee Commencement after Implementation. The following four (4) scenarios will determine the commencement schedule for the monthly recurring Service Fees as outlined in Section 8.1 of this Exhibit and the due date for the remaining balances of the implementation fees: |
8.7.1 | Implementation by Target Date. Upon availability of the Hosted Reservation Services for use by Customer, effective on the Target Date as detailed in Exhibit A, Section 3.9.1, all remaining implementation fees are due and applicable monthly recurring Service Fees will commence. These fees will commence regardless of actual use of Hosted Reservation Services or subsequent delay by Customer. |
8.7.2 | Requested Delay by NAVITAIRE. In the event that NAVITAIRE requests a delay in order to complete remaining Implementation Services, the remaining implementation fees will be due and applicable monthly recurring Service Fees will commence only on the commencement of Customer's use of the Hosted Services. NAVITAIRE will provide written notice of the new planned Target Date and outline remaining Implementation Services. |
8.7.3 | Requested Delay by Customer. In the event the Customer requests a delay in the completion of Implementation Services past the Target Date, remaining implementation fees are due and any monthly recurring Service Fees will remain effective for the duration of the customer-initiated delay. If such requested delay results in rescheduling portions or all of the remaining Implementation Services to the next available timeframe as evaluated by NAVITAIRE, no Service Fees will be in effect for the duration delay due solely to NAVITAIRE'S resource availability. |
NAVITAIRE reserves the right to apply additional implementation fees as are necessary and mutually agreed on when rescheduling the Implementation Services due to Customer request. All fees as described in the Agreement and Exhibit A, Section 8.2 are to be applied based on the scheduled Target Date. |
8.7.4 | Mutual Agreement for Delay. In the event that both NAVITAIRE and the Customer agree to delay in order to complete the required Implementation Services, the remaining implementation fees will be due and the applicable monthly recurring Service Fees will commence on the newly agreed Target Date for the Implementation Services. |
9 | Service Levels and Service Level Targets |
9.1 | Service Level Scope. The Service Levels contained in this Section represent the target service performance for the provision of the Hosted Reservation Services. Metrics, measurement, and reporting will create performance assessment measures that apply to operations services in the following three service categories: |
• | System availability targets. |
• | Metrics, measurement, and reporting. |
• | Remedies and corrective action. |
9.2 | Service Level Targets |
9.2.1 | System Availability. NAVITAIRE will seek to provide Customer with an overall Minimum System Availability Target of ninety-nine point eight percent (99.8%) of all Reporting Period Minutes for the applicable Reporting Period. Interrupted Service Minutes will be measured and used to determine the percentage of monthly Hosted Services System availability, |
(a) | Interrupted Service will be defined as a complete system availability outage, including: |
• | NAVITAIRE controlled primary circuit network line being down and will be considered a 100% outage for the purposes of calculating any applicable service credit. |
• | NAVITAIRE controlled server or router being down and will be considered a 100% outage for the purposes of calculating any applicable service credit. |
• | System Error which causes the system to be completely unavailable and will be considered a 100% outage for the purposes of calculating any applicable service credit. |
• | Also included for the purposes of calculating the Service Credits will be the following partial outages (Service Credits not to exceed 100%) that are due to NAVITAIRE'S sole cause and under NAVITAIRE'S sole control. |
a) | the inability of booking a reservation at the Customer call center which will be considered a twenty percent (20%) outage for the purposes of calculating any applicable service credit. |
b) | the ability of checking in passengers at a single airport at the same time which will be considered a ten percent (10%) outage for the purposes of calculating any applicable service credit. |
c) | the ability of checking in passengers at all airports at the same time which will be considered a forty percent (40%) outage for the purposes of calculating any applicable service credit. |
d) | the inability of booking a reservation on the Customers booking web site which will be considered a seventy five percent (75%) outage for the purposes of calculating any applicable service credit. |
(b) | Network Responsibilities. The diagram below shows those hardware components, network components (excluding the internet), and the software that resides on those components that are owned from a service level perspective by NAVITAIRE and those items that are owned by the Customer. Items that are contained within the dotted-line (in the upper left corner) are the responsibility of Customer. During the event of an Interrupted Service, NAVITAIRE is responsible for errors that occur involving the hardware components, network components, and the software that reside outside of the dotted-line area. |
(c) | Planned Downtime. NAVITAIRE acknowledges that the system will be operated, maintained, and upgraded in such a fashion as to minimize the incidents in which the system will be unavailable. It is the expectation that under normal conditions that this Planned Downtime will be less that 60 minutes per week, NAVITAIRE will make reasonable efforts to perform such activities during Customer off-peak hours. In doing so, it is acknowledged that, for temporary periods coordinated with Customer so as to ensure that they occur when Customer's required capacity is expected to be below that |
which will be available, NAVITAIRE will be permitted to reduce the available capacity of the system. NAVITAIRE will coordinate with Customer to determine the best time for Customer for when the system can be unavailable. It is however, acknowledged and understood that in the event that NAVITAIRE reasonably determines that a critical System Change is required, NAVITAIRE can inform Customer of any required Planned Downtime. NAVITAIRE acknowledges that a precondition to any such activities will be a recovery plan to immediately restore the services to full operations. |
9.2.2 | Incident Problem Request (IPR) Service Response. NAVITAIRE will commit ton the Emergency response targets below for each IPR logged System Error. |
Emergency IPR Response | ||||||||
Customer Communication | Emergency | |||||||
Acknowledgement and Initial Response | 15 minutes | |||||||
Update | Every 30 minutes |
9.2.3 | In the event that the overall achieved Minimum System Availability Target in any Reporting Period falls below ninety-nine point nine (99.9%), It is agreed that the parties will engage in an Executive Review Meeting for which a senior officer of NAVITAIRE as well those with knowledge of the cause for such failure will meet at the offices of Customer with the relevant personnel from Customer and will present NAVITAIRE's plan that it will implement to seek to ensure that a Minimum System Availability Target of ninety-nine point nine (99.9%) will be achieved in future Reporting Periods. |
9.3 | System Errors and Emergencies |
9.3.1 | System Error Reporting. Customer may report an identified Hosted Reservation Services System Error at no additional cost using the Remedy IPR schema. A System Error is defined in Section 9.4.4 of this Exhibit A. |
9.3.2 | System Error Classification. When Customer reports an IPR for a System Error, it will be assigned a priority based on the severity of the issue. These priorities will be assigned using the following table: |
Impact Analysis | Business Functionality | |||||||||||||||||||||||||||||||
No loss of business function | Partial loss of business function. Work-around exists | Partial loss of business function. No work-around exists. | Complete loss of business function. Work-around exists. | Complete loss of business function. No work-around exists. | ||||||||||||||||||||||||||||
Immediate Impact is significant. Affects many and/or critical users. | NA | Emergency | Emergency | Emergency | Emergency | |||||||||||||||||||||||||||
Immediate impact is moderate. Affects few and/or non-critical users. | Low | Medium | High | High | Emergency | |||||||||||||||||||||||||||
Immediate impact is marginal, Affects few or no users. | Low | Medium | High | Medium | High |
An example of an "Emergency" System Error might include: |
• | Hosted Reservation Services are totally unavailable due to a NAVITAIRE controlled communication line. |
An example of a "High" System Error might include: |
• | Cannot change any airline schedules through Schedule Manager. |
• | Cannot load new fares through Fares Manager. |
• | Unable to generate confirmation itineraries for Internet customers. |
• | Settlement files are delayed by one day in being sent to the settlement bank. |
An example of a "Medium" System Error might include: |
• | Slow system response for specific tasks. |
9.3.3 | Emergency Response Procedure. In the event of a Customer Emergency, the NAVITAIRE Support Centre may be contacted for assistance, according to the procedures outlined in Section 5.4 of this Exhibit. |
9.3.4 | NAVITAIRE Support Communication Targets. For High, Medium, and Low IPRs, NAVITAIRE will set the response times as response target times, and these will be measured during the initial months of the Hosted Reservation Services. NAVITAIRE's resolution targets are provided in the Support User Guide, available on NAVITAIRE's Customer Care web site. |
IPR Severity Classification and Response Targets | ||||||||||||||||||||
Customer Communication | High | Medium | Low | |||||||||||||||||
Acknowledgement and Initial Routing | 4 hours | 24 hours | 48 hours | |||||||||||||||||
Updates | Customer will receive electronic notification whenever data is needed or incident is resolved, status changed, or notes updated. |
9.4 | System Changes |
9.4.1 | Change Control. All events that impact application software, custom software, systems software, or hardware could be covered by Change Control. The Change Control process effectively plans and facilitates changes to the Hosted Services System, including ownership for mitigating problems that may occur with a change to minimize any |
associated downtime. This function is responsible for coordinating and controlling all change administration activities (i.e., document, impact, authorize, schedule, implementation control), and determining if and when a change will be implemented in the enterprise environment. |
9.4.2 | Enhancements. An "Enhancement" is a request for a new report or application or an improvement to an existing application related to usability, performance, additional functionality, or flexibility, Enhancements will be logged in the Software Change Request (SCR) schema in Remedy. Such requests can be in response to: |
Mandates controlled by external third parties including governments, governing industry bodies such as International Air Transport Association [IATA], Société Internationale de Télécommunications Aéronautiques [SITA], or airport authorities. Examples include: |
• | Taxes, fees, security issues, immigration. |
• | Airport technology issues that impact airlines such as bag tag, Common Use Terminal Emulator (CUTE), or CUBE. |
Customer requests that are initiated through a direct request, user conference, or through Customer's NAVITAIRE Account Manager. Examples include: |
• | Competitive advantage. |
• | improved passenger services. |
• | Specific client requirements. |
• | Improved business management. |
Internal requests that are initiated through the sales cycle, Technology, Development, or NAVITAIRE line of business. Examples include: |
• | Cost reduction initiatives. |
• | Product obsolescence. |
• | Corporate business plan objective. |
9.4.3 | Urgency Classifications for Enhancements. Enhancements will be assigned a priority according to the criteria in the table below. If there is a disagreement as to the priority of the requested Enhancements, these will be decided between NAVITAIRE Account Manager and Customer Account Liaison. If this cannot be resolved at this level, it will be escalated to the respective Executive Sponsors for determination |
Customer Urgency | Description | |||||||||||||
Very High (Emergency) | A requirement from a business critical third party or other outside influence such as an airline buyout, purchase of another airline, a new government regulation, or a requirement that cannot be completed in a manual nature without severe negative impact. Such requests are Urgent only if a third party controls the requirement, it is non-discretionary to the customer, and the third party places an immediate time constraint on the customer. Note: Documentation from the governing entity, which clearly states the nature of the requirement, the time frame allowed for implementation, and the penalties for noncompliance may be required. Due to the nature of an Emergency request, we expect to receive no more than 2-3 such requests per month. Every attempt will be made to meet the established regulatory deadline communicated in these instances; however should the deadline be compromised NAVITAIRE will communicate specific issues that may make this deadline unattainable with an estimate of when it can be completed. Examples: Adding Security Watch - a government or industry requirement that would inflict severe financial penalties if not met and demanded a quick implementation. Adding the EURO as a form of currency - a specific governmental requirement that was dictated to the customers and demanded a quick implementation. | |||||||||||||
High | A requirement from a business critical third party or outside influence such as an airline buyout, purchase of another airline, a new government regulation, or a requirement that cannot be completed in a manual nature without severe negative impact, but DOES NOT have an immediate time constraint placed on the customer by the third party. | |||||||||||||
Note: | Such requests are classified as High to prevent them from becoming Very High/Emergencies. A new business requirement that cannot be completed in a manual nature without severe negative impact. Such requests are not Emergencies because the request is discretionary to the customer. | |||||||||||||
Examples: | Printing French Itineraries for domestic French flights - a governmental requirement that provided sufficient time to respond to the need. Changing to a new bank - a customer-driven requirement that is critical to customer daily operations. | |||||||||||||
Medium | Supports all required Hosted Services System operations; the request is required eventually but could wait until a later release if necessary. Would enhance the product, but the product is not unacceptable if absent. More of a want than a need, but would provide benefit to the customer. | |||||||||||||
Examples: | Adding support for additional auxiliary services, such as car-hire or insurance. Adding support of seat assignment capability for Computerized Reservation System (CRS) bookings. Adding new check-in commands or short-cuts that would save time and effort for the agents. Adding new features or functions in the Irregular Operations (IROP) program to increase efficiency of passenger handling. | |||||||||||||
Low | A functional or quality enhancement that corrects an aesthetic problem or improves usability from the customer's perspective. It does not greatly affect or alter core functionality. | |||||||||||||
Examples: | Enabling a pop-up message of "Are you sure" for bags weighing > 100Kg. Adding the ability to alter the 'flow' of the SkySpeed booking process as a user configurable option. Adding support for additional languages for SkySpeed (localization). Adding more feeds (imports or exports) to third party packages for data sharing. Making minor adjustments to screen layouts or design to increase readability. Adjusting reports to increase readability and decrease questions to support. |
9.4.4 | System Errors. A System Error occurs when functionality that is included in the NAVITAIRE product user documentation is currently not working on Customer's site in the manner that it is described in the documentation that shall be reasonably up to date. |
9.4.5 | Releases. NAVITAIRE software changes are bundled into work units called releases. The type and content of each release will vary according to criteria listed in the chart below. |
Criteria | Releases | |||||||||||||||||||
Major | Minor | Emergency | ||||||||||||||||||
Driven by | Strategy and product direction | Bug fixes to previous releases of software | Severity 1 bug fixes or emergency enhancements | |||||||||||||||||
Target content | Enhancement - 60% Bug Fix - 25% Emergency - 15% | Enhancement - 25% Bug Fix - 60% Emergency - 15% | Enhancement - 0% Bug Fix - 0% Emergency - 100% | |||||||||||||||||
Description | Changes in the architecture, to the database, or that affect many different products in the NAVITAIRE product suite | Bug fixes, new reports, new stand-alone programs or features. Data structure changes that do not impact, the database or architecture | Critical changes to the software stemming from Severity 1 bug fixes or emergency enhancements | |||||||||||||||||
Approximate schedule | Annual | Quarterly to monthly | As needed or in the next available release | |||||||||||||||||
Implementation requirement | Downtime as required. | Downtime as required. | Downtime as required. |
9.4.6 | Release Stabilization Period. Following a Major Release as defined in Section 9.4.5 of this Exhibit, Hosted Services System performance for all or some of the Minimum System Availability Targets are subject to a reduction to ninety five percent (95%) during periods of time identified as Stabilization Periods. A Stabilization Period is defined as follows: |
• | As used herein, the term "Stabilization Period" means the first thirty (30) days following a Major Release. During the Stabilization Period incidents related to the functionality added for a particular third party service in the release that are directly related to that third party service are exempted from the Service Levels performance target. The Stabilization Period will not apply to Major Release 'sub-releases' or fixes. |
9.5 | Notification of Increased Usage. As previously stated in Section 4.3 of this Agreement, Customer agrees to use commercially reasonable efforts to provide NAVITAIRE with the designated advance notice of significant volume increases, according to a NAVITAIRE defined process. |
9.6 | Service Levels Reporting |
9.6.1 | General. Regular, standardized Service Levels reporting provides a common denominator, which measures and evaluates service performance. This provides a basis on which conclusions can more easily be drawn as to the actual Service Levels achieved. NAVITAIRE will monitor and measure performance of specified Service Levels items and send a Monthly Performance Report to Customer for review and approval. The report will be structured for Customer's internal use and metrics will be generated and distributed on a monthly basis. |
9.6.2 | Report Information |
• | Monthly Performance Report. The NAVITAIRE Account Manager will submit a Monthly Performance Report by the sixth business day of the subsequent month following the Reporting Period to the Customer Account Liaison. The report will contain the monthly indicator of Service Levels statistics and will be transmitted via email unless otherwise requested by the Customer. The report will also summarize all Interrupted Service Reports for the Reporting Period. |
• | Interrupted Service Report. The NAVITAIRE Account Manager will provide an Interrupted Service Report, created by the Global Support Centre, following an outage or Interrupted Service. This report will summarize circumstances, identified cause (if known) |
and will outline any identified corrective action. Each Interrupted Service Report will be given a tracking number for reference on the Monthly Performance Report. |
9.6.3 | Report Follow Up. If Customer has any questions or objections to the report, they will notify their NAVITAIRE Account Manager within ten (10) business days of receiving the report and NAVITAIRE shall respond within ten (10) business days of notification. If the parties cannot agree on the measurements reported, the matter will be escalated to the respective Executive Sponsors, and, if still unresolved, will be escalated as outlined in Section 19.5 of this Agreement (dispute resolution procedures). |
9.7 | Review and Correction |
9.7.1 | NAVITAIRE Account Manager Review. In addition to Support Centre Support and Emergency services, the NAVITAIRE Account Manager will coordinate a teleconference with the Customer Account Liaison within twenty-four (24) hours of the Interrupted Service to discuss the details outlined in the Interrupted Service Report and to update the Customer on any identified cause or status. The NAVITAIRE Account Manager will close the Interrupted Service Report with the Customer Account Liaison upon final report of identified cause and any outline of corrective action. |
9.7.2 | Executive Review. Upon the request of the NAVITAIRE or Customer Account Liaison, an Executive Sponsor teleconference and a further escalation to the CEO or President level of each company may be made depending on the severity of the Interrupted Service. |
9.8 | Remedies and Corrective Action. The remedies and corrective action described below will be applied with respect to each Reporting Period, which commences sixty (60) days following completion of Implementation Services. Conflict and Exhaustion of Provisions as stated at the beginning of this Exhibit will apply to this Section, |
9.8.1 | Corrective Action. The NAVITAIRE Account Manager shall monitor corrective action and report to the Executive Sponsors. In the event that Minimum System Availability Targets are not met during the Reporting Period, the NAVITAIRE Account Manager shall initiate corrective action during the subsequent Reporting Period. NAVITAIRE shall, at its own expense, use commercially reasonable efforts to correct the deficiency in order to meet future Minimum System Availability Targets. |
9.8.2 | Failure Notification. Upon a second failure of NAVITAIRE to meet Minimum System Availability Targets, the issue shall be escalated to the CEO or President level of each company. Customer may notify NAVITAIRE, in writing, of the failure to meet Minimum System Availability Targets. Upon receipt of such notice, NAVITAIRE will begin reporting System Availability in weekly Reporting Periods and |
will communicate to Customer within five (5) business days and in writing the status of improvement in performance. Subject to the remaining terms hereof, if NAVITAIRE fails to meet the Minimum System Availability Target for the Hosted Reservations Services in any given calendar month (Reporting Period) in any consecutive twelve (12) month period, NAVITAIRE will provide Customer a credit of the Monthly Recurring Service Fees for such month according to the following schedule: |
(i) | First Month Service Level is missed - [***] of the Monthly Recurring Service Fees for the Hosted Reservations Services as multiplied by the applicable percentage of outage as detailed in Section 9.2.1 of this Exhibit A. |
(ii) | Second Month Service Level is missed - [***] of the Monthly Recurring Service Fees for the Hosted Reservations Services as multiplied by the applicable percentage of outage as detailed in Section 9.2.1 of this Exhibit A. |
(iii) | Third Month Service Level is missed - [***] of the Monthly Recurring Service Fees for the Hosted Reservations Services as multiplied by the applicable percentage of outage as detailed in Section 9.2.1 of this Exhibit A. |
(iv) | Fourth Month Service Level is missed - [***] of the Monthly Recurring Service Fees for the Hosted Reservations Services as multiplied by the applicable percentage of outage as detailed in Section 9.2.1 of this Exhibit A. |
1 | NAVITAIRE Global Support Centre Contact |
2 | NAVITAIRE Account Manager |
Name: | Phone: | |||||||
Title: | Fax: | |||||||
Address: | E-mail: |
3 | NAVITAIRE Account Executive Sponsor |
Name: | Phone: | |||||||
Title: | E-mail: | |||||||
Address: |
4 | NAVITAIRE Account Technical Sponsor |
Name: | Phone: | |||||||
Title: | E-mail: | |||||||
Address: |
5 | NAVITAIRE Financial Contacts |
Name: | Julie Madigan | Phone: | (612) 317-7503 | |||||||||||||||||
Title: | Director, Finance | E-mail: | julie.madigan@navitaire.com | |||||||||||||||||
Fax: | (612) 317-7070 | |||||||||||||||||||
Name: | Gordon Evans | Phone: | (801) 947-7878 | |||||||||||||||||
Title: | Vice President | E-mail: | gordon.evans@navitaire.com | |||||||||||||||||
Fax: | (801) 947-7801 |
1 | Customer Emergency Contact |
2 | Customer Account Liaison |
Name: | Phone: | |||||||
Title: | Fax: | |||||||
Address: | E-mail: |
3 | Customer Revenue Management Contact (if applicable) |
Name: | Phone: | |||||||
Title: | E-mail: | |||||||
Fax: |
4 | Customer Executive Sponsor |
Name: | Phone: | |||||||
Title: | E-mail: | |||||||
Fax: |
5 | Customer Authorized Support Contact(s) |
Name: | Phone: | |||||||
Title: | E-mail: | |||||||
Fax: | ||||||||
Name: | Phone: | |||||||
Title: | E-mail: | |||||||
Fax: |
Name: | Phone: | |||||||
Title: | E-mail: | |||||||
Fax: | ||||||||
Name: | Phone: | |||||||
Title: | E-mail: | |||||||
Fax: |
6 | Customer Financial/Accounts Payable Contact |
Name: | Phone: | |||||||
Title: | E-mail: | |||||||
Address: |
7 | Customer Revenue Accounting Contact (if applicable) |
Name: | Phone: | |||||||
Title: | E-mail: | |||||||
Fax: |
1 | Use of the Mark |
2 | Guidelines for Using the NAVITAIRE Wired Mark |
2.1 | Sizing and Placement Requirements. Custom shall reasonably use the Mark to credit NAVITAIRE as follows: |
2.1.1 | NAVITAIRE will provide Customer with digital reproductions of the Mark in approved colors (including black and white) and sizing for use by Customer. The Mark may not be redrawn, typeset, altered or visually modified or distorted in any manner unless approved by NAVITAIRE in writing. |
2.1.2 | The Mark may only be used to indicate access to the Hosted Services System, specifically the SkySales® products or any publicly available application (e.g. web page, kiosk, etc.) which uses the NAVITAIRE Application Program Interfaces (APIs) for booking, check-in or flight information purposes. |
2.1.3 | Suggested sizing of the Mark is 115 pixels in width, and the proportions of the Mark shall be reasonably preserved. NAVITAIRE will provide modified digital marks for applications larger than 115 pixels in width. |
2.1.4 | The Mark should be placed on a contrasting background so that the Mark is clearly visible against its background. |
2.1.5 | A minimum amount of empty space must be left between the Mark and other objects on the screen. The Mark must appear by itself, with a suggested spacing of 20 pixels between each side of the Mark and other graphics imagery (typography, photography, illustrations, etc.) on the page. |
2.1.6 | Customer shall not combine the Mark with any other feature including, but not limited to, other marks or logos, words, graphics, photos, slogans, numbers, design features, or symbols. |
2.1.7 | Individual graphic elements of the Mark may not be used as design features on the travel product, travel product packaging, documentation, collateral materials, advertising, or for any purpose other than as permitted herein. |
2.1.8 | The Mark is an official mark and shall at all times remain the property of NAVITAIRE. The Mark includes graphic elements and accompanying words. The Mark shall always be expressed as an integrated whole. |
2.1.9 | NAVITAIRE may change the Mark or substitute a different mark at any time; provided however that NAVITAIRE provides ninety (90) days prior written notice. |
2.2.0 | Color Treatment. Approved Mark colors (included in the Mark as supplied by NAVITAIRE) are: |
2.2.1 | Two Color Applications. The Mark must be used in the colors supplied by NAVITAIRE, which are medium blue for "Powered by Navitaire" and light blue for the 'swoosh' below the NAVITAIRE portion of the graphic. |
2.2.2 | Black and White Applications. An all black Mark or an all white Mark may be used if this color scheme is more compatible with Customer's website branding. |
2.3 | Location. The Mark shall appear on all booking and information pages associated with SkySales booking products or on any publicly available application (e.g. web page, kiosk, etc.) which uses the NAVITAIRE Application Program Interfaces (APIs) for booking, check-in purposes and as otherwise specified by NAVITAIRE. |
2.4 | Quality Control |
2.4.1 | NAVITAIRE reserves the right to conduct spot checks on the travel product to ensure compliance with this policy. |
2.4.2 | Customer must correct any deficiencies in the use of the Mark within ten (10) business days after receiving notice from NAVITAIRE. |
2.4.3 | NAVITAIRE reserves the right to terminate Customer's license to use the Mark and, if necessary, take action against any use of the Mark that does not conform to these policies, infringes any NAVITAIRE intellectual property or other right, or violates other applicable law. |
3 | License Grants and Restrictions |
3.1 | NAVITAIRE hereby grants to Customer a worldwide, non-exclusive, non-transferable, royalty-free, revocable, personal right to use the Mark solely in conjunction with the travel product in the manner described in the guidelines set forth in Section 2 of this Exhibit, and as may otherwise be reasonably prescribed by NAVITAIRE from time to time, subject to the terms and conditions of this Agreement and this Exhibit. |
3.2 | All rights not expressly granted reserved by NAVITAIRE. Customer acknowledges that nothing in this Exhibit shall give it any right, title or interest in the Mark or any part thereof, other than the license rights granted herein. Customer may not use or reproduce the Mark in any manner whatsoever other than as described in Section 2 of this Exhibit. |
3.3 | Customer agrees that it will not at any time dispute or contest: (a) the validity of the Mark or any registrations of the Mark, whether now existing or hereafter obtained; (b) the exclusive ownership by NAVITAIRE, its successors or assigns, of the Mark or of any registrations of the Mark, whether now existing or hereafter obtained; (c) the exclusive ownership by NAVITAIRE of the present and future goodwill of the business pertaining to the Mark; or (d) NAVITAIRE's right to grant to Customer the rights and privileges conferred by the foregoing license. |
4 | No Further Conveyance |
1 | Definitions |
1.1 | Customer Revenue Accounting Contact has the meaning set forth in Exhibit D. |
1.2 | Direct Consultation has the meaning set forth in Section 5.5 hereof. |
1.3 | Executive Sponsors has the meanings set forth in Exhibits C and D. |
1.4 | Support Centre means the NAVITAIRE facility that accepts phone and Internet based Customer support tool service requests related to Hosted Services. |
1.5 | Scope Analysis has the meaning set forth in Section 3.5 hereof. |
1.6 | System Error has the meaning set forth in Section 10.1.1 hereof. |
2 | Scope of Services |
X | SkyLedger Hosted Revenue Accounting Services, including: |
• | PNR XML, Credit Shell XML, Voucher XML, Agency Billing and Commissions XML and the Flight Following XML from the NAVITAIRE Hosted Reservation Services. |
• | Creating account posting data for the events related to the XML input files. |
• | Providing a reporting capability from the summary journal level with a drill down capability to the PNR level. |
• | Providing the ability to map accounting events to airline specified general ledger accounts. |
• | Providing an output file for the airline to create an electronic interface to the general ledger. |
5 | No Endorsement |
5.1 | Customer may not use the Mark in any way as an endorsement or sponsorship of the travel product by NAVITAIRE. |
5.2 | Customer shall not use the Mark in any manner that disparages NAVITAIRE or its products or services, infringes any NAVITAIRE intellectual property or other rights, or violates any state, federal or international law. |
6 | Termination |
6.1 | NAVITAIRE reserves the right at its sole discretion to terminate or modify Customer's license to use the Mark at any time. |
6.2 | Customer may terminate its use of the Mark by: (a) terminating the Agreement as permitted therein; and (b) terminating Customer and/or Users access to the Hosted Services System. |
6.3 | Upon termination of the Agreement, any and all rights and or privileges to use the Mark shall expire and use of the Mark shall be discontinued. |
7 | The Mark |
NOTE: | The Mark above is depicted for print clarity, The required minimum size of 115 pixels in width is smaller than the above depiction. |
3 | Implementation Services |
3.1 | Data Center Implementation Services. NAVITAIRE will configure, install, activate, and test the necessary data center hardware and software for providing the Hosted Revenue Accounting Services to the Customer. Unless otherwise specified, these services do not include communication circuits, wireless data services, or any remote communication devices, including routers or network hardware. Client personal computers, workstations, or other Customer devices connected to the Hosted Services System are the responsibility of the Customer and must meet the minimum specifications as required by NAVITAIRE. |
3.2 | Virtual Private Network (VPN) Connectivity. If Customer desires to use a virtual private network (VPN) for connectivity to Hosted Revenue Accounting Services, NAVITAIRE will evaluate such a request to determine the viability of the use of a VPN connection for either a primary or back-up data circuit. After review, NAVITAIRE will advise Customer if the request is approved and any cost which may apply, provided, however, that NAVITAIRE will fully document any cost for which it will seek reimbursement under the foregoing, and the additional fee that will apply. |
3.3 | Network Configuration and Design Services. NAVITAIRE will supply recommended technical diagrams and will advise Customer on required network hardware requirements for client portion of application, as necessary. Customer shall have internal or third party network expertise available for the installation and configuration of their required network. |
3.4 | System Integration Services. As Customer uses the NAVITAIRE Hosted Reservation Services, NAVITAIRE will integrate daily reservations activity XML extract files from NAVITAIRE Hosted Reservation Services into the Hosted Revenue Accounting Services. |
3.5 | Scope Analysis |
3.5.1 | NAVITAIRE will conduct a Scope Analysis to gather information on Customer's desired use of the Hosted Revenue Accounting Services and outline functional capabilities of the Hosted Services System. During the Scope Analysis, NAVITAIRE will work with Customer to conduct a business process review that will define the scope of the implementation project. The Scope Analysis deliverable will be a statement of work, which defines project scope, project plan, project schedule, including NAVITAIRE and Customer responsibilities, used to determine the Target Date. |
3.5.2 | The Hosted Revenue Accounting Services installation process will include: |
• | Set up of physical and database environments |
• | Data import services |
• | Initialization of the Hosted Revenue Accounting Services software |
• | Import/load of reference and historical data |
• | Technical and functional testing |
• | User Training |
• | Conversion plan |
3.6 | Customer Site Services. NAVITAIRE will assist Customer with the testing of the required telecommunications connection between the NAVITAIRE data center and the designated Customer facility. Customer shall be responsible for the cost of troubleshooting or connecting the Customer's internal network. Additional technical support for on-site assistance after the initial conversion for production use of the Hosted Revenue Accounting Services shall be quoted on a project basis at the request of the Customer using the rates as outlined in Section 9.3 of this Exhibit G. |
3.7 | Initial Training Services. NAVITAIRE will supply the following training and Customer agrees to participate in such training for the Hosted Revenue Accounting Services: |
3.7.1 | Up to a maximum of three (3) days which may be attended by up to a maximum of three (3) Customer employees at the NAVITAIRE corporate offices located in Minneapolis, Minnesota or other location as mutually agreed. Training phases will include a follow up review of two (2) days approximately sixty (60) days after going live with the Hosted Revenue Accounting Services. If Customer desires on-site initial training, Customer will be responsible for providing the training site, all required computer hardware, stable technical environment, and any related expenses including NAVITAIRE trainer(s) travel and out-of-pocket expenses. All training will be conducted in English. |
3.7.2 | Customer will be provided an electronic copy of the manual in Adobe Acrobat (PDF) format for download via the NAVITAIRE web site. Technical specification and technical reference manuals are for internal NAVITAIRE use only, unless otherwise specified in this Agreement or by other arrangement. All materials provided by NAVITAIRE are in the English language unless otherwise specified within this Agreement. |
3.8 | Project Reporting |
3.8.1 | During the course of Implementation Services, the NAVITAIRE Hosted Revenue Accounting Services Project Manager will coordinate status reporting with the NAVITAIRE Hosted Reservation Services Project Manager. Following completion of installation of the Hosted Reservation Services, the NAVITAIRE Hosted Revenue Accounting |
Services Project Manager will provide Customer with status on the remaining Implementation Services for Hosted Revenue Accounting Services as follows: (a) Weekly Project Plan Update and Status Report: (b) Weekly Updated Issues/Resolution List; and (c) Executive Summary. |
(a) | Weekly Project Plan Update and Status Report. Weekly status reports will be transmitted to Customer each Monday during the provision of Implementation Services. This report will include updated status on the process and an updated project plan. A list of the following week's tasks and goals will be included in the report. |
(b) | Weekly Updated Issues/Resolution List. Weekly updated issues/resolution lists will be forwarded to Customer on the same schedule as the Weekly Project Plan Update and Status Report. The Issues/Resolution List will include specific additional items discovered in the project analysis, or critical issues that deserve heightened priority apart from the project plan. The Issues/Resolution List will include the task, party responsible, date, open/close status, priority, and date of closed task. Every issue will be given a priority relative to a mutually agreed priority with Customer. Priorities will be ranked 1 - 5, 1 being most critical. Below is a description of each priority: |
• | Priority 1 - Urgent. All issues included in this priority are deemed critical and will be given priority attention. These issues may affect a milestone or dependency related to the Target Date completion of conversion services. Issues in this category are critical to resolve prior to other project dependencies and milestones being completed. |
• | Priority 2 - High. Issues included in this priority may affect the Target Date and require resolution prior to the completion of conversion services. |
• | Priority 3 - Medium. Issues included in this priority are not required prior to completion of conversion services, but must be finished prior to the end of Implementation Services. |
• | Priority 4 - Low. These items are not critical to either the completion of conversion services or Implementation Services but require monitoring for subsequent follow up or entry into NAVITAIRE's Internet based customer support tool. |
• | Priority 5 - Excluded. These items are deemed excluded and are either unnecessary or may be addressed in a business process change or work-around. |
(c) | Executive Summary. An Executive Summary will be provided to both the NAVITAIRE and Customer Executive Sponsors upon reaching critical milestones. These milestones will be established mutually with the Customer as the final project plan has been established. |
3.9 | Implementation Services Time Frame |
3.9.1 | Beginning on the Effective Date of this Agreement, NAVITAIRE agrees to work with Customer, using commercially reasonable efforts, to plan, coordinate, and to make progress toward completion of the required Implementation Services within the time frame preceding the Target Date. NAVITAIRE further agrees to initiate, mutually with the Customer, project-scope-analysis and project-planning communication to establish the final schedule for Implementation Services. Depending on requirements for the loading of data included in the four XML Input files outlined as Interface Files in Section 7 below, into the Hosted Revenue Accounting Services and conversion, the project timeline and Target Date for Implementation Services of Hosted Revenue Accounting Services will be determined as part of the implementation project plan. |
3.9.2 | NAVITAIRE recommends at least four (4) weeks of data included in the four XML Input files outlined as Interface Flies in Section 7 below, containing Customer's open PNR data from NAVITAIRE's Hosted Reservation Services, prior to activation and initialization of the Hosted Revenue Accounting Services. Open PNR data will include future flight segments as well as any past unflown segments which still have a positive remaining balance which have not been converted to a voucher or credit shell. |
3.9.3 | Typical timelines for implementation average four (4) months for full project implementation. The Hosted Revenue Accounting Services implementation process will be conducted in parallel with the NAVITAIRE Hosted Reservation Services implementation (if applicable), however, the Hosted Reservation Services conversion to production will normally precede the conversion of the Hosted Revenue Accounting Services implementation. |
3.9.4 | The NAVITAIRE Hosted Revenue Accounting Services implementation team will have an assigned project lead and central contact point that will interface with the Customer Revenue Accounting Contact during the Implementation Services period. |
3.9.5 | If Customer is implementing Hosted Reservation Services concurrently with the Hosted Revenue Accounting Services implementation, the NAVITAIRE Revenue Accounting project lead will communicate and coordinate with the primary Hosted Reservation Services project manager during the Hosted Reservation Services implementation effort. After Hosted Reservation Services conversion, the NAVITAIRE Revenue Accounting project lead will communicate status with the Customer Project Manager. |
3.9.6 | Upon completion of the Implementation Services as described in Section 3 of this Exhibit, NAVITAIRE will provide written notification to the Customer Revenue Accounting Contact or Customer Account Liaison named in Exhibit D of this Agreement. |
4 | Data Circuits |
4.1 | Primary and Backup Data Circuits. Customer shall be responsible for all telecommunication dedicated, dial-up, or wireless circuits used by Customer in connection with the transmission of data between the Hosted Services System and the Customer's site(s), as stated in Section 4.9 of this Agreement. It is anticipated that Customer will use the same primary and back-up data circuits to transmit data for the Hosted Revenue Accounting Services as those used to support the delivery of the Hosted Reservation Services. Customer shall be responsible to ensure that the data circuits are capable of handling the additional data volume required for the Hosted Revenue Accounting Services. If Customer wishes to use any alternative arrangement to the Hosted Reservation Services data circuits, Customer must forward this request to NAVITAIRE for approval. |
4.2 | Facility Locations. The facility locations provided for in this Agreement are as follows: |
• | The NAVITAIRE Hosted Revenue Accounting Services data center will be located in Minneapolis, Minnesota, USA. |
• | The Customer's primary facility will be located in Miramar, Florida, USA. The Customer will be permitted to move the primary facility upon reasonable notice to NAVITAIRE. Customer will be responsible for any costs incurred by NAVITAIRE due to the move of the Customer's primary facility. The Customer will also be permitted to maintain one or more backup facilities in its discretion at Customer's sole cost. |
5 | Included Support |
5.1 | Support Centre Support. NAVITAIRE will include English-speaking Support Centre Support via e-mail, Customer Internet support tool, or telephone. An up-to-date version of NAVITAIRE's Support User Guide will be available to Customer on NAVITAIRE's Customer Care web site. |
5.1.1 | Initial Support. Included in the first thirty (30) days following the implementation of Hosted Revenue Accounting Services, Customer is allotted, at no additional charge, a maximum number of included Support Centre Support hours as described in Exhibit G, Section 9.3. If Customer utilizes the Support Centre more than the allotted number of hours, the Support Fees in Section 5.3 hereof will apply. |
5.1.2 | Basic Support. After the expiration of initial support, Customer is allotted, at no additional charge, a maximum number of included Support Centre Support hours as described in Exhibit G, Section 9.3. If Customer utilizes the Support Centre more than the allotted number of hours, the Support Fees in Section 5.3 hereof will apply. |
5.2 | Hours - Non-Emergency. NAVITAIRE Support Centre Support for Hosted Revenue Accounting Services is available Monday - Friday, 7am - 7pm CDT/CST, excluding NAVITAIRE holidays (Christmas Eve, Christmas Day and New Year's Day). |
5.3 | Support Rate. Charges for additional support hours exceeding the applicable initial or basic support for the Support Centre will be invoiced at the rate specified in Section 9.3 of this Exhibit. |
5.4 | Available Assistance. The NAVITAIRE Support Centre may be contacted for assistance. All services are in English, unless otherwise specified in this Agreement. This Section 5.4 outlines procedures for reporting Emergencies, errors, and requests. |
5.4.1 | Emergency. An Emergency is defined as the Hosted Revenue Accounting Services not functioning for the Customer due to an Interrupted Service. A Hosted Revenue Accounting Services Interrupted Service is defined as an outage due to: |
• | NAVITAIRE controlled primary circuit network line being down, |
• | NAVITAIRE controlled server or router being down, or |
• | System Error, |
Note: | The Customer must refer to the documentation that matches the version of software they are running. If Customer wants a feature that is not currently included in their software version, but the feature is included in a later software version, Customer must upgrade their software to that version to be able to take advantage of the new features and functionality. |
5.4.2 | Error Reporting. Customer may report an identified Hosted Revenue Accounting Services System Error at no additional cost through the Support Centre or the Internet based customer support facility. |
5.4.3 | Request Reporting. Customer may utilize the NAVITAIRE Internet support tool to contact the NAVITAIRE Support Centre electronically for the following service requests: |
• | Enhancement Requests |
• | New product concepts or requests |
• | Additional training requests |
• | Consulting services |
5.5 | Direct Consultation. Direct Consultation is defined as Customer-initiated contact directly to NAVITAIRE revenue accounting research & development personnel, thereby bypassing the NAVITAIRE Support Centre. The rates for Direct Consultation will also apply to any Customer issue which requires NAVITAIRE research & development personnel assistance that is not related to the resolution of a System Error. (Examples of this might include assistance with Customer's non-standard data extracts or data queries, etc.) Direct Consultation will be invoiced at the applicable rate described in this Exhibit. |
5.6 | Third Party Interfaces |
5.6.1 | NAVITAIRE will only supply and support defined interfaces to third party systems utilized by the Customer if listed in this Section. |
5.6.2 | Unless third party software is incorporated into the Hosted Services System and indicated specifically in the specifications included in this Exhibit, neither NAVITAIRE nor such third party shall be liable for the performance or failure to perform of the other. |
6 | Scheduled Maintenance |
7 | Hosted Revenue Accounting Services Functionality |
Hosted Revenue Accounting Services - SkyLedger | ||||||||
General Features | ||||||||
• | Captures financial events for NAVITAIRE reservation activity and relates the activity to the relevant financial accounting period. | |||||||
• | Maintains a historical PNR, Voucher, and Credit Shell database with a separate version whenever a financial change occurs. | |||||||
• | Provides periodic financial reporting with accounting period integrity. | |||||||
• | Provides a financial audit trail for financial activity related to the life of each PNR. | |||||||
• | Provides a financial audit trail for each accounting entry down to the specific transaction event detail. |
• | Provides data retention for PNRs, Vouchers, Credit Shells and accounting details. | |||||||
• | Includes a web based report creation tool which enables the user to create and view a set of reports. | |||||||
• | Provides the ability to map accounting events to airline specified general ledger accounts for reporting or electronically interfacing to the airline's general ledger system. | |||||||
• | Provides financial detail in the airline's designated "host" accounting currency without loss of the sales currency in the reporting data. | |||||||
• | Provides the ability to re-map transactions and automatically reprocess those affected by the mapping changes. | |||||||
• | Provides a pre-defined set of reports for critical accounting events with the flexibility of these reports being available in text, PDF, or Excel. | |||||||
• | Provides simple proration of fare over each leg within a given through segment. | |||||||
• | Provides flexibility to map account numbers to specific transactional data elements, e.g. aircraft type, tax code, or country code. | |||||||
• | Accepts credit card settlement data at the PNR level from the Customer's Payment Service Provider or NAVITAIRE's Payment Service, performing accounting for settled and chargeback amounts. | |||||||
• | Support accounting for multi-company structure when more than one airline operates within the Hosted Reservation system. | |||||||
Reports | ||||||||
Accounting Reports | ||||||||
• | Account Center Balance Report*. Displays account / center balances for each of the carrier's accounts. | |||||||
• | Journal Entry Detail Report*. Displays account / center balances grouped by Journal Entry. | |||||||
• | Activity Balance Report*. Summarizes daily postings by account event / account type. | |||||||
• | Account Mappings Report. Displays all relevant information related to an account mapping for a user-specified company code, effective period, account event and account type. | |||||||
• | Bulk Mappings Report. Displays the contents of all lists available for the Bulk Mappings user interface. | |||||||
• | Suspense Report. Displays account items that are currently in suspense. | |||||||
Revenue Reports | ||||||||
• | Revenue By Distance*. Displays base and gross revenue by seat mile/kilometer on a specific date or within a specified date range for flights between two cities. | |||||||
• | Revenue by Fare Class*. Displays revenue by fare class on a specific date or within a specified date range. | |||||||
• | Revenue by Flight*. Displays revenue by average seat mile/kilometer for individual flights. | |||||||
• | City Pair Load Factor*. Displays passenger totals, load factor, ASM, Revenue, RPM, yield, RASM, and other data by city pair as well as by individual flights serving each city pair. | |||||||
• | Earned / Unearned Revenue*. Displays information on earned and unearned revenue for flights between a designated city pair including analysis by booking date and equipment type. |
• | Route Profitability Report*. Displays a summary of revenue and costs by route. Costs must be entered through the Expenses User Interface before the report can be used. | |||||||
Business Reports | ||||||||
• | Credit Shell / Voucher Expiration*. Lists expired credit files, credit shells and vouchers for a specified time period. | |||||||
• | Fees and Discounts*. Displays fees and discounts, by currency and type, entered into the system. | |||||||
• | Tax History*. Displays information for selected tax payments. | |||||||
• | Payment Report*. Displays information about payments made against a PNR grouped by date, agent or type based on parameters specified. | |||||||
• | Flight Reconciliation Report*. Displays Flight Statistics and what has been received and accounted for within SkyLedger. | |||||||
• | Unearned Revenue Liability Report*. Displays all PNRs for which the total unearned revenue posted to the accounting detail database is not equal to the total amount of earned, no-show, and expired revenue. This report will provide the user with exposure to their unearned revenue liability (items sold, but not flown). | |||||||
• | Delta Report*. Displays all transactions for which the total debit and credit amount do not balance for the account specified by the user | |||||||
Operational Reports | ||||||||
• | Extract Load Errors Report. Displays all transactions that could not be successfully loaded to the historical database. | |||||||
• | Reconciliation Report*. Daily report that is used to ensure all transactions listed on the historical database are also posted to the accounting detail database with the appropriate amounts. Only discrepancies between the historical and accounting database are displayed. | |||||||
*indicates report drills down into one or more sub and/or detail reports. | ||||||||
Modules and Interfaces | ||||||||
Modules | ||||||||
• | PNR Load. Accept PNR XML from the NAVITAIRE reservation system and validate file, load to Temporary Database for further processing by Version History module. | |||||||
• | Voucher Load. Accept Voucher XML from the NAVITAIRE reservation system and validate file, load to Temporary Database for further processing by Version History module. | |||||||
• | Credit Shell Load. Accept Credit Shell XML from the NAVITAIRE reservation system and validate file, load to Temporary Database for further processing by Version History module. | |||||||
• | Flight Following Load. Accept Flight Following XML from the NAVITAIRE reservation system and validate file, load to Temporary Database for further processing by Version History module. | |||||||
• | Agency Billing and Commission Load. Accept Agency Billing and Commission file from the NAVITAIRE reservation system, validate file, and load to database. | |||||||
• | Credit Card Settlement Load. Accept credit card settlement data from the Customer's payment service provider, validate file, and load to database. | |||||||
• | PNR Version History. Version incoming PNR and insert a control row to trigger action by the accounting generator. |
• | Voucher Version History. Version incoming Voucher and insert a control row to trigger action by the accounting generator. | |||||||
• | Credit Shell Version History. Version incoming Credit Shell and insert a control row to trigger action by the accounting generator. | |||||||
• | Flight Following Version History. Version incoming Flight and insert a control row to trigger action by the accounting generator. | |||||||
• | Accounting Generator. Generate accounting transactions based on prior versions of PNR, Voucher and Credit Shell comparing differences to determine what financial events have changed. | |||||||
• | Account Mapping. Assign an account period, company code, journal entry, debit/ credit account/ center to a specific accounting transaction. | |||||||
• | Remap Request. Identify and process the transactions that must be reversed and remapped as a result of modifications to the account mapping table. | |||||||
• | Re-conversion Request. Identify and process the transactions that must be reversed and reposted as a result of modifications to the currency conversion rate table. | |||||||
• | Account Reversal. Update the accounting detail table to reverse all accounting related to the transaction key provided. | |||||||
• | Transaction Reconciliation. Ensure the accounting database is in sync with the historical transaction database. | |||||||
• | Monthly Close Processing. Perform a variety of actions related to the close of an accounting period. | |||||||
• | Simple Proration. Retrieve air miles for each leg within a given through segment and divide the fare among the constituent legs. Alternatively the square root of air miles can be used to divide the fare among the constituent legs. | |||||||
• | Expiration. Generate accounting to relieve liability related to unused transactions (PNRs, Credit Shells, Vouchers) following a user-specified expiration period. | |||||||
• | Purge. Delete fully-used, closed transactions from the historical and accounting databases following a user-specified retention period. | |||||||
• | General Ledger Creation. Extract all accounting records in local and/or host currency on a daily or monthly basis to be fed via XML interface into the Customer's General Ledger system. | |||||||
Interface Files | ||||||||
SkyLedger is populated by the XML extract files provided by the NAVITAIRE reservation system. The main output of the SkyLedger system will be the general ledger feed, which supplies the data that can be interfaced into the Customer's financial system. Please note that each of the interface files listed below has a standard file specification and all files accepted or created by the SkyLedger system must be formatted in accordance with these file specifications. | ||||||||
Inputs: | ||||||||
• | PNR XML. Daily XML Extract from the NAVITAIRE reservation system with PNR / Passenger information such as booking, flown, or payments. | |||||||
• | Credit Shell XML. Daily XML Extract from the NAVITAIRE reservation system with Credit Shell information such as creation of, usage. | |||||||
• | Voucher XML. Daily XML Extract from the NAVITAIRE reservation system with Voucher information such as creation of, usage. |
• | Flight Following XML. Daily XML Extract from the NAVITAIRE reservation system with flight information such as origin, destination, or passenger counts. | |||||||
• | Agency Data XML. XML extract from the NAVITAIRE reservation system with agent and contact information. This information is used to allow mapping by department and location for certain accounting events. | |||||||
• | Agency Billing and Commissions File. Comma-delimited extract file from the NAVITAIRE reservations system with commission allocations at a PNR level (optional). | |||||||
• | Credit Card Settlement XML. XML extract from the carrier's payment service provider with credit card settlement information provided at the PNR level (optional). | |||||||
• | PNR On Hold Extract File (Open Skies Only). Record Locators that were put on hold in the reservation system. Any associated accounting to these record locators is backed out since they are no longer valid bookings on the reservation side. | |||||||
Outputs: | ||||||||
• | General Ledger Feed. Daily/Monthly general ledger feed out of SkyLedger to an Customer's general ledger system to update the journal entry / account balances | |||||||
User Interface | ||||||||
SkyLedger provides a user interface for: a) viewing and managing accounts, b) viewing journals and account mappings to allow customization accounts, and c) viewing journal entries to track how transactions are applied to those specific accounts. The following six user interfaces will be included in SkyLedger: | ||||||||
• | Accounts. The accounts user interface will be used to insert, update, and delete entries from the SkyLedger account table, center table, and company account center table. These tables in turn are used to validate entries to the SkyLedger account mapping table. | |||||||
• | Journal Maintenance. The journal maintenance user interface will be used to insert, update, and delete entries on the SkyLedger journal entry table. This table in turn will be used to validate entries to the SkyLedger account mapping table. | |||||||
• | Journal Approval. The journal approval user interface will be used to approve the debit/credit balance for each journal entry. Please note that this interface is intended to be used in conjunction with the SkyLedger journal entry detail report. Quality Assurance and management approval of a journal entry is required before data related to this journal entry may be bridged to the user via the automated monthly G/L feed (where the carrier has requested user-approval of the journal entry balance). | |||||||
• | Mappings. The mappings user interface will be used to insert, update, and delete entries from the SkyLedger account mapping table. This table in turn will be used to assign a debit account/center and credit account/center to accounting transactions based upon the type of accounting event (account event/account code) and the specific characteristics of the transaction (mapping fields). The account mapping table also enables individual accounting transactions to be classified under the proper company code and journal entry. | |||||||
• | Currency Maintenance. This user interface will allow the user to enter the exchange rate from each currency to the host currency at the company level with an effective date for each exchange rate. |
• | Service Types. This user interface will allow the carrier to identify each service type and specify whether or not the revenue related to that service will be earned at the time of booking or the time of flight. | |||||||
Revenue Accounting System Data Storage and Access | ||||||||
General Features | ||||||||
• | Online access for historical revenue accounting system data up to 12 months from current date. | |||||||
• | Access to historical revenue accounting system data more than 12 months prior is available via archive database application or standard media (e.g. tape) stored offsite. Access to data more than 12 months prior is provided upon request through Internet based customer support facility at a price to be quoted upon receipt of such request. | |||||||
Revenue Accounting System Add-On Functionality | ||||||||
Inbound Interline | ||||||||
SkyLedger can identify bookings associated with inbound interline and operating codeshare requests and consolidate the information for accounting and billing purposes. SkyLedger facilitates billing and settlement by creating invoices, reports and output files. | ||||||||
Additional Reports provided include: | ||||||||
• | Outward Billing Report. Displays revenue and billable tax information by flight and partner for interline transactions. | |||||||
Additional Interface files include: | ||||||||
• | Invoice Summary Report. Displays interline invoice summary information based on the ATA/IATA Interline Passenger Summary Invoice format. | |||||||
• | Invoice Coupon Report. Displays interline invoice details based on the ATA/IATA Interline Passenger Summary Invoice format. | |||||||
• | Billing File. This file is created by SkyLedger and contains invoice and transaction details for interline billable activity. File format is based on the Interline Data Exchange Centre (IDEC) format. | |||||||
• | Passenger Reconciliation Data File. This file is created by SkyLedger and should be sent to the partner airline to advise them a flight has operated. | |||||||
• | Web F12 File. This file is an electronic claims file created by SkyLedger containing Forms One and invoice details only and enables Clearing House members to electronically communicate with the Clearing House system in order to submit electronic Forms One and generate an electronic Forms Two. | |||||||
• | Currency Conversion File. This file is required for SkyLedger. It can either be the IATA 5-day rate if settling through the clearinghouse, or a file of currency rates from Open Skies. | |||||||
Additional User Interfaces provided include: | ||||||||
• | Interline Configuration. Allows an airline to configure various properties related to outward billing for each partner airline. |
• | Billing Request. Enables the airline to request the creation and transfer of one or more outward billing files/reports. | |||||||
• | ISC Detail Application. Allows an airline to specify specific ISC rates that apply at the segment level. |
8 | Customer Hardware, Software, Connectivity and Network Requirements |
8.1 | Software Use and Upgrades. Subject to Article 7.3 of the Agreement, Customer is required to maintain the latest version of supported NAVITAIRE and related third party software as directed by the NAVITAIRE Support Centre. Upon receipt of upgraded software, newer versions or software, or notification of third party software updates, Customer must update their software version(s) within thirty (30) days. Failure to complete the advised upgrades may result, at NAVITAIRE's option, in the suspension of Included Support, as described in Section 5 of this Exhibit. |
8.1.1 | Unless third party software is incorporated into the Hosted Services System and indicated specifically in the specifications included in this Exhibit, neither NAVITAIRE nor such third party shall be liable for the performance or failure to perform of the other. |
8.2 | Equipment Specifications. The equipment specifications below outline the required, supported hardware and software necessary for the proper function and efficient operation of the Hosted Revenue Accounting Services and applicable products. Unless otherwise specified in this Section, the equipment and software listed below are the responsibility of the Customer. All specifications are subject to change, provided that not change may not place an unreasonable financial or operational burden on Customer. Customer will be provided with not less than sixty (60) days notice of incremental hardware upgrade requirements. |
Hosted Revenue Accounting Services - SkyLedger | ||||||||
The Hosted Revenue Accounting Services is anticipated to be a browser based application. NAVITAIRE will advise Customer of supported web browser versions to access the Hosted Revenue Accounting Services no later than thirty (30) days prior to a required change. | ||||||||
Workstation: | ||||||||
• | Windows XP | |||||||
• | Microsoft Office | |||||||
• | 2.0 gHz Intel Pentium 4 Processor with MMX (or higher) | |||||||
• | 512 MB RAM (or higher); AGP and PCI bus; 100-133 MHz FSB | |||||||
• | 17" Monitor minimum | |||||||
• | Internet Explorer Version 6.0 or higher | |||||||
• | 100 MB Network Card (with 100 MB network, end to end) | |||||||
Network Hardware, Software | ||||||||
• | Data Circuits: Customer must already have or must install the necessary equipment and circuits to support their primary revenue accounting site and any remote locations. NAVITAIRE requires a LAN/WAN network supporting TCP/IP protocols. |
• | Routers, DSU/CSUs, and Modems: Customer should contact NAVITAIRE for recent information regarding supported routers and other network communication equipment. | |||||||
• | IP Addressing: NAVITAIRE requires that all hosted Customers use Internet Registered IP addresses on all client workstations or devices that require connectivity to the Hosted Revenue Accounting Services. Alternatively, NAVITAIRE requires a NAT (Network Address Translation) router to be installed behind the NAVITAIRE gateway router. The NAT must then have the Internet Registered IP address. | |||||||
• | Customer Provided Data Circuits: NAVITAIRE requires a review of the proposed primary or backup data circuit(s) prior to a third party agreement and installation. Where possible, NAVITAIRE will use reasonable effort to provide all necessary specifications and extend management of the data circuit as permitted by the Customer and the third party supplying the data circuit(s). If VPN connectivity is desired, VPN providers require NAVITAIRE approval. |
8.2.1 | Data Circuits. Customer must arrange and pay for necessary circuits for Hosted Revenue Accounting Services file transmissions. NAVITAIRE may act as the Customer's agent to order and facilitate installation of these circuits upon written request by the Customer. |
9 | Fee Schedule |
9.1 | Service Fees |
9.1.1 | Monthly Recurring Service Fees - Revenue Accounting Services/Products: |
Year | Hosted Revenue Accounting Services SkyLedger | |||||||
Flat Monthly Fee | ||||||||
[***] | [***] |
9.1.2 | Settlement for Inbound Interline and Operating Codeshare Agreements |
Description | Fees (Per Each Interline or Codeshare Partner) | |||||||
Settlement for Inbound Interline and Operating Codeshare Agreements | [***] per Partner (pricing subject to change for any additional partner added after January 1, 2009) |
9.2 | Implementation Fees |
Product/Service Description | Implementation Fees* (Including Training) | |||||||
Hosted Revenue Accounting Services | [***] | |||||||
Reporting Service Tool | [***] |
* | Implementation Fees exclude travel expenses and any new development. |
9.3 | Support Fees |
Support Centre Support | Fees | |||||||
Initial Support: During the initial support period, as defined in Section 5.1.1 of this Exhibit, Support Centre Support for Hosted Revenue Accounting Services is included in the initial support for Hosted Reservation Services as outlined in Exhibit A, Section 8.3. | [***] | |||||||
Basic Support: After the initial support period, Support Centre Support for Hosted Revenue Accounting Services is included in the basic support for Hosted Reservation Services as outlined In Exhibit A, Section 8.3. | [***] | |||||||
Additional Normal Hourly Support, Additional Training Requests, or Additional Development scheduled through NAVITAIRE: User support more than initial or basic support hours or as otherwise described in the Agreement. | [***] |
Engineer Direct Support: Expert support for revenue accounting and Customer third party systems or interfaces as scheduled through the NAVITAIRE Support Centre. | [***] | |||||||
Direct Consultation Support: Customer initiated contact directly to NAVITAIRE research & development personnel and other direct consultation, thereby bypassing the NAVITAIRE Support Centre. | [***] |
9.4 | Other Fees |
Other Fees | Fees | |||||||
Custom Programming | [***] | |||||||
Dedicated Account Management | [***] | |||||||
Business Process and Consulting Services | [***] |
9.5 | Payment of Implementation Fees. Immediately upon signing this Agreement, all Implementation Fees are due and payable. The Implementation Fee due on signing is USD [***]. Any remaining balances of all Implementation Fees are due and payable on the earlier of: (a) the first day of production use of the Hosted Revenue Accounting Services; or (b) the Target Date as detailed in this Exhibit G, Section 3.9.1 provided, however, that NAVITAIRE does not request a delay as described in this Exhibit G, Sections 9.6.2 and 9.6.4. |
9.6 | Fee Commencement after Implementation. The following four (4) scenarios will determine the commencement schedule for the monthly recurring Service Fees as outlined in Section 9.1 of this Exhibit and the due date for the remaining balances of the implementation fees: |
9.6.1 | Implementation by Target Date. Upon availability of the Hosted Revenue Accounting Services for use by Customer, effective on the Target Date as detailed in this Exhibit G, Section 3.9.1, all remaining implementation fees are due and applicable monthly recurring Service Fees will commence. These fees will commence regardless of actual use of Hosted Revenue Accounting Services or subsequent delay by Customer. |
9.6.2 | Requested Delay by NAVITAIRE. In the event that NAVITAIRE requests a delay in order to complete remaining Implementation Services, the remaining implementation fees will be due and applicable monthly recurring Service Fees will commence only on the earlier of |
the actual date of completion of Implementation Services or the new Target Date. NAVITAIRE will provide written notice of the new planned Target Date and outline remaining Implementation Services. |
9.6.3 | Requested Delay by Customer. In the event the Customer requests a delay in the completion of Implementation Services past the Target Date, remaining implementation fees are due and any monthly recurring Service Fees will remain effective. Such requested delay may result in rescheduling portions or all of the remaining Implementation Services to the next available timeframe as evaluated by NAVITAIRE, unless mutually agreed in writing otherwise. |
9.6.4 | Mutual Agreement for Delay. In the event that both NAVITAIRE and the Customer agree to delay in order to complete the required Implementation Services, the remaining implementation fees will be due and the applicable monthly recurring Service Fees will commence on the newly agreed Target Date for the Implementation Services. |
10 | System Errors and System Changes |
10.1 | System Errors |
10.1.1 | System Error Definition. A System Error occurs when functionality that is included in the NAVITAIRE product user documentation is currently not working on Customer's site in the manner that it is described in the documentation. |
Note: | Customer must refer to the documentation that matches the version of software they are running. If Customer wants a feature that is not currently included in their software version, but the feature is included in a later software version, Customer must upgrade their software to that version to be able to take advantage of the new features and functionality. |
10.1.2 | System Error Reporting. Customer may report an identified Hosted Revenue Accounting Services System Error at no additional cost using the Remedy IPR schema. A System Error is defined in Section 10.1.1 above. |
10.1.3 | System Error Classification. When Customer reports an IPR for a System Error, it will be assigned a priority based on the severity of the issue. These priorities will be assigned using the following table: |
Impact Analysis | Business Functionality | |||||||||||||||||||||||||||||||
No loss of business function | Partial loss of business function. Work- around exists | Partial loss of business function. No work- around exists. | Complete loss of business function. Work- around exists. | Complete loss of business function. No work- around exists. | ||||||||||||||||||||||||||||
Immediate impact is significant. Affects many and/or critical users. | NA | Emergency | Emergency | Emergency | Emergency | |||||||||||||||||||||||||||
Immediate impact is moderate. Affects few and/or non-critical users. | Low | Medium | High | High | Emergency | |||||||||||||||||||||||||||
Immediate impact is marginal. Affects few or no users | Low | Medium | High | Medium | High |
• | Hosted Revenue Accounting Services are totally unavailable due to NAVITAIRE controlled communication line. |
• | Customer did not receive the daily Postings Report. |
• | Reporting Services is not displaying data accurately. |
• | Slow system response for specific tasks. |
10.1.4 | Emergency Response Procedure. In the event of a Customer Emergency, the NAVITAIRE Support Centre may be contacted for assistance, according to the procedures outlined in Section 5.4 of this Exhibit. |
10.2 | System Changes |
10.2.1 | Change Control. All events that impact application software, custom software, systems software, or hardware could be covered by Change Control. The Change Control process effectively plans and facilitates changes to the Hosted Revenue Accounting Services system, including ownership for mitigating problems that may occur with a change to minimize any associated downtime. This function is responsible for coordinating and controlling all change administration activities (i.e., document, impact, authorize, schedule, implementation control), and determining if and when a change will be implemented in the enterprise environment. |
10.2.2 | Enhancements. An "Enhancement" is a request for a new report or application or an improvement to an existing application related to usability, performance, additional functionality, or flexibility. Enhancements will be logged in the Support Centre Support tool. Such requests can be in response to: |
(a) | Mandates controlled by external third parties including governments, governing industry bodies such as International Air Transport Association [IATA], Société Internationale de Télécommunications Aéronautiques [SITA], or airport authorities. |
(b) | Customer requests that are initiated through a direct request, user conference, or through Customer's NAVITAIRE Account Manager. Examples include: |
• | Competitive advantage |
• | Improved passenger services |
• | Specific client requirements |
• | Improved business management |
(c) | Internal requests that are initiated through the sales cycle, Technology, Development, or NAVITAIRE line of business. Examples include: |
• | Cost reduction initiatives |
• | Product obsolescence |
• | Corporate business plan objective |
10.2.3 | Urgency Classifications for Enhancements. Enhancements will be assigned a priority according to the criteria in the table below. If there is a disagreement as to the priority of the requested Enhancements, these will be decided between NAVITAIRE Account Manager and |
Customer Account Liaison. If this cannot be resolved at this level, it will be escalated to the respective Executive Sponsors for determination. |
Customer Urgency | Description | |||||||||||||
Very High (Emergency) | A requirement from a business critical third party or other outside influence such as an airline buyout, purchase of another airline, a new government regulation, or a requirement that cannot be completed in a manual nature without severe negative impact. Such requests are Urgent only if a third party controls the requirement, it is non-discretionary to the customer, and the third party places an immediate time constraint on the customer. | |||||||||||||
Note: | Documentation from the governing entity, which clearly states the nature of the requirement, the time frame allowed for implementation, and the penalties for non-compliance may be required. Due to the nature of an Emergency request, we expect to receive no more than 2-3 such requests per year. Every attempt will be made to meet the established regulatory deadline communicated in these instances; however should the deadline be compromised NAVITAIRE will communicate specific issues that may make this deadline unattainable with an estimate of when it can be completed. | |||||||||||||
High | A requirement from a business critical third party or outside Influence such as an airline buyout, purchase of another airline, a new government regulation, or a requirement that cannot be completed in a manual nature without severe negative impact, but DOES NOT have an immediate time constraint placed on the customer by the 3rd party. | |||||||||||||
Note: | Such requests are classified as High to prevent them from becoming Very High/Emergencies. A new business requirement that cannot be completed in a manual nature without severe negative impact. Such requests are not Emergencies because the request is discretionary to the customer. | |||||||||||||
Medium | Supports all required Hosted Services System operations; the request is required eventually but could wait until a later release if necessary. Would enhance the product, but the product is not unacceptable if absent. More of a want than a need, but would provide benefit to the customer. |
Low | A functional or quality enhancement that corrects an aesthetic problem or improves usability from the customer's perspective. It does not greatly affect or alter core functionality. Examples: Adding more feeds (imports or exports) to 3rd party packages for data sharing. Making minor adjustments to screen layouts or design to increase readability. Adjusting reports to increase readability and decrease questions to support. |
10.2.4 | Releases. NAVITAIRE software changes are bundled into work units called releases. The type and content of each release will vary. |
10.2.5 | Month End Closure. SkyLedger operates with two (2) accounting periods open at all times. Prior to closing the accounting month end, Customers must ensure that following are managed: |
• | All flights for that month have been set to "Close" within the NAVITAIRE Reservation system. |
• | All no-show passengers on all flights for the month have been set to "No-Show". |
• | Balance in the SkyLedger Suspense account has been cleared to "Nil" balance or to a reasonable level. |
• | July and August 2007 accounting periods are open |
• | July accounting period is closed no later than Monday, August 7th, 2007 |
• | As soon as July 2007 is closed September 2007 accounting period will be open |
A. | NAVITAIRE and Customer are parties to that certain NAVITAIRE Hosted Service Agreement dated as of February 28, 2007 (the "Agreement"), pursuant to which NAVITAIRE performs Hosted Services for Customer. |
B. | Section 19.1 of the Agreement permits the parties to amended the terms and conditions of the Agreement provided such amendment is made in writing signed by the parties. |
C. | NAVITAIRE and Customer desire to amend the terms of the Agreement as provided below. |
1. | Amendment to add Data Store Products to the Agreement, as follows: |
a) | Scope of Services. Data Store Products are added to Section 2, Scope of Services, of Exhibit A. |
X | Data Store Workbench |
b) | Functionality. The following functionality is added to Section 6, New Skies by NAVITAIRE Functionality Included in Hosted Reservation Services, of Exhibit A, as follows: |
Data Store Workbench | ||
General Features | ||
The Data Store Workbench (DSW) offers customers read only access to the Historical Operational Data Store (HODS) and Data Warehouse (DW) data, as well as read/write access to the Data Store Workbench (DSW) database, for custom reporting, extraction, transformation, and loading. | ||
Customers can create and store custom objects in the DSW database, located on the same physical server as the HODS and DW, but cannot create custom objects in or modify the HODS or DW data. | ||
The DSW database size is capped at 50GB. | ||
Database user privileges are limited to DDL_ADMIN. | ||
NAVITAIRE IT staff provides basic database administration services for the DSW Database which include standard data backup and recovery support. | ||
Job scheduling is not permitted on the DSW database server. If implemented, customers will host scheduling services on their servers at their location (e.g., SQL Server Integration Services packages). | ||
Standard New Skies reports continue to run against the HODS. | ||
NAVITAIRE provides the following services for the Data Store Workbench: | ||
Delivery of data committed to the New Skies database via replication articles, typically within thirty (30) minutes | ||
Transactional Data Integrity where the data committed to the New Skies database are replicated to the DS. | ||
Documentation includes the data model, training curriculum, and explanations of the data store architecture, replication, and support processes. | ||
Note: This product is designed for light custom reporting and moving reservations data to another database, data warehouse, or other system outside of the New Skies environment for processing. Due to the detailed transactional nature of the data store database, this product does not support heavy data processing tasks. If replication to the HODS is delayed due to demanding user queries, NAVITAIRE reserves the right to abort such queries. |
c) | Services Fees. The following is added as Section 8.1.6, Monthly Recurring Services Fees - Data Store Products, of Exhibit A, as follows: |
8.1.6 | Monthly Recurring Service Fees - Data Store Products. |
Description | Data Store Products | |||||||
Monthly Fee | ||||||||
Data Store Workbench | [***] |
d) | Implementation Fees. The following is added to Section 8.2, Implementation Fees, of Exhibit A, as follows: |
Data Store Products - Data Store Workbench | [***] |
2. | Amendment to replace Section 3.10.3, of Exhibit A, in its entirety, as follows: |
3.10.3 | Data Import Services. NAVITAIRE will automatically convert and process 18 months of Customer's historical PNRs into the Hosted Services System. If additional NAVITAIRE staff is required to perform the historical data conversion, all work will be billed on a time and materials basis using the standard Support Fees quoted in Section 8.3 of Exhibit A. Customer will be notified in advance prior to any such work being performed. The data conversion process will take place in three steps: |
Extract. An extract process will retrieve all reservations that have a flight record with an open future travel date. Only complete, or valid, reservations will be extracted from the previous reservation system data file. |
i | Conversion. After a 'block' of reservation data is extracted, the corresponding output file will be transferred to the new environment. A data validations routine will perform audits of the data quality. |
i | Import. Upon completion of the first extract file of clean data, an import routine will transfer the clean data to the New Skies compliant databases in segmented extracts. While the first is transferring, a concurrent process will commence on the second extract, transfer and import to expedite data transfer. |
3. | Amend to replace Paragraph 3 of Section 4.3, of the Agreement, in its entirety, as follows: |
4. | Amendment to add Additional Test Environment to the Agreement, as follows: |
a) | Scope of Services. Additional Test Environment is added to Section 2, Scope of Services, of Exhibit A. |
X | Additional Text Environment |
b) | Service Fees. The following is added as Section 8.1.7, Monthly Recurring Service Fees - Additional Test Environment, of Exhibit A, as follows: |
8.1.7 | Monthly Recurring Service Fees - Additional Test Environment. |
Description | Monthly Fee | |||||||
Additional Test Environment | [***] |
c) | Implementation Fees. The following is added to Section 8.2, Implementation Fees, of Exhibit A, as follows: |
Additional Test Environment | [***] |
5. | No other Changes. Except as specifically amended by this Amendment, all other provisions of the Agreement remain in full force and effect. This Amendment shall not constitute or operate as a waiver of, or estoppel with respect to, any provision of the Agreement by any party hereto. |
6. | Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same Agreement. |
7. | Successors and Assigns. This Amendment shall inure to the benefit of and be binding upon NAVITAIRE and the Customer and their respective successors, heirs, and assigns. |
8. | Conflict of Provision. In the event that there exists a conflict between any term, condition, or provision contained within this Amendment, and in any term, condition, or provision contained within the Agreement, the term, condition, or provision contained within this Amendment shall control. |
By: | /s/ J. Dabkowski | |||||||
Its: | Managing Director | |||||||
CUSTOMER | ||||||||
By: | /s/ Scott Allard | |||||||
Its: | VP, CIO | |||||||
Airline: SPIRIT |
A. | NAVITAIRE and Customer are parties to that certain NAVITAIRE Hosted Service Agreement dated as of February 28, 2007 as amended, (the "Agreement") pursuant to which NAVITAIRE performs Hosted Services for Customer. |
B. | Section 19.1 of the Agreement permits the parties to amended the terms and conditions of the Agreement provided such amendment is made in writing signed by the parties. |
C. | NAVITAIRE and Customer desire to amend the terms of the Agreement as provided below. |
1 | Amendment to add Work Orders to the Agreement, as follows: |
a) | Recitals. The following is added to the Recitals of the Agreement. |
• | Navitaire, Inc., wholly owned by Accenture, is an airline technology services company, which provides various services such as hosted reservation and revenue management services to airline companies worldwide. Navitaire, Inc. will be the Service Provider for all NPS Services and Deliverables provided under this Agreement, if applicable. |
b) | Definitions. The following are added to Section 1, Definitions, of the Agreement. |
• | Deliverables means Materials that are originated and prepared for by Customer by the Service Provider (either independently or in concert with Customer or third parties) and delivered to Customer during the course of the NPS Services under this Agreement, within the scope of a Work Order, as described in the Work Order form included in Exhibit H of this Agreement. Deliverables shall include NAVITAIRE Property. |
• | Materials mean work product and other materials, including without limitation, reports, documents, templates, studies, software programs in both source code and object code, specifications, business methods, tools, methodologies, processes, techniques, solution construction aids, analytical frameworks, algorithms, know-how, processes, products, documentation, abstracts and summaries thereof. |
• | NPS means Navitaire Professional Services, a division of NAVITAIRE that specializes in providing custom solutions to NAVITAIRE customers. |
• | NPS Services means the services performed for Customer on a time and materials basis by the Service Provider within the scope of a Work Order, as described in the Work Order form included in Exhibit H of this Agreement. |
c) | Entire Agreement and Amendments. Section 19.1, Entire Agreement and Amendments, of the Agreement is replaced in its entirety with the following: |
19.1 | Entire Agreement, Amendments, and Work Orders. This Agreement and its Exhibits constitute the entire agreement between NAVITAIRE and Customer, and supersede any prior or contemporaneous communications, representations, or agreements between the parties, whether oral or written, regarding the subject matter of this Agreement. The terms and conditions of this Agreement may not be changed except by an amendment signed by an authorized representative of each party. Additional time and materials work to be performed under the commercial terms of this Agreement may be outlined in a Work Order, in a form similar to the example attached as Exhibit H, signed by an authorized representative of Customer and Service Provider. Without limiting the foregoing, both parties acknowledge that each may use preprinted forms, invoices, and/or other forms as it deems fit. The parties agree that, in the event of conflict between the text of such a form and this Agreement, the terms and conditions of this Agreement will prevail. No additional or different terms contained in any such form will be of any force or effect. |
d) | Exhibit H. Exhibit H, Work Order Terms and Form, is added to the Agreement, as shown as Attachment 1 to this Amendment. |
2 | No Other Changes. Except as specifically amended by this Amendment, all other provisions of the Agreement remain in full force and effect. This Amendment shall not constitute or operate as a waiver of, or estoppel with respect to, any provision of the Agreement by any party hereto. |
3 | Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same Agreement. |
4 | Successors and Assigns. This Amendment shall inure to the benefit of and be binding upon NAVITAIRE and the Customer and their respective successors, heirs, and assigns. |
5 | Conflicts of Provisions. In the event that there exists a conflict between any term, condition, or provision contained within this Agreement, and in any term, condition, or provision contained within the Agreement, the term, condition, or provision contained within this Amendment shall control. |
NAVITAIRE INC. | ||||||||
By: | /s/ J. Dabkowski | |||||||
Its: | Managing Director | |||||||
Date: Dec 15, 2008 | ||||||||
CUSTOMER | ||||||||
By: | /s/ Scott Allard | |||||||
Its: | VP, CIO | |||||||
Airline: Spirit | ||||||||
Date: 12/1/2008 |
1 | Additional Terms |
1.1 | Customer's Operation and Use of Deliverables. Customer is responsible for its operation and use of Deliverables and for ensuring that the Deliverables meet Customer's requirements. |
1.2 | Limited Warranties and Remedies |
1.2.1 | Notwithstanding anything contained in this Agreement, the following sections will apply to the NPS Services and Deliverables, in lieu of Section 10.2 of the Agreement. |
1.2.2 | NAVITAIRE warrants that its NPS Services will be performed in a good and workmanlike manner. NAVITAIRE agrees to re-perform any NPS Services not in compliance with this warranty brought to its attention in writing within thirty (30) days after those NPS Services are performed. Additionally, NAVITAIRE warrants that its Deliverables which are original content shall materially conform to their relevant specifications, for a period of thirty (30) days from delivery to Customer. NAVITAIRE agrees to correct any such Deliverable not in compliance with this warranty brought to its attention in writing within thirty (30) days after delivery of such Deliverable to Customer. THIS SECTION IS NAVITAIRE'S ONLY EXPRESS WARRANTY CONCERNING THE NPS SERVICES, ANY DELIVERABLES AND ANY WORK PRODUCT, AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, NON-INFRINGEMENT, INTERFERENCE WITH ENJOYMENT OR OTHERWISE. |
1.2.3 | Exclusions. The NAVITAIRE warranties under Section 1.2.2 of this Exhibit do not apply to any noncompliance resulting from any: (a) Customer-Furnished Items; (b) use not in accordance with this Agreement or any applicable Work Order; (c) modification, damage, misuse or other action of Customer of any third party; (d) combination with any goods, services or other items provided by Customer or any third party to the extent that the noncompliance arises out of such combination with the Deliverables provided under this Work Order, or (e) any failure of Customer to comply with this Agreement or any applicable Work Order to the extent that the failure to comply by the Customer causes NAVITAIRE's noncompliance. Further, NAVITAIRE does not warrant that the Deliverables or any other items furnished by NAVITAIRE under this Agreement or any Work Order are free from bugs, errors, defects or deficiencies. NAVITAIRE warrants that the Deliverable, when delivered to the Customer, shall not knowingly contain any virus, Trojan horse or self-replicating code. |
1.2.4 | Changes in Third Party Products. The NAVITAIRE warranty obligations in regard to a Deliverable will apply only where the version, release or model of any Third Party Product used in conjunction with such Deliverable is the same as that specified in the applicable Work Order. |
1.2.5 | Third Party Products. Except as otherwise agreed upon by the parties in writing (e.g., in the applicable Work Order), the warranties, obligations and liabilities of NAVITAIRE and the remedies of Customer with respect to Third Party Products or any other materials, tangible or intangible, provided by a third party in connection with this Agreement will be limited to whatever recourse may be available against the third party provider of such Third Party Products or materials and are subject to such additional restrictions and other limitations as may be set forth in the applicable Work Orders. |
1.2.6 | Customer-Furnished Items. NAVITAIRE MAKES NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY CUSTOMER-FURNISHED ITEMS. |
1.2.7 | Remedy. Customer's sole and exclusive remedy for any claim arising out of the NPS Services and Deliverables shall be for NAVITAIRE, upon receipt of written notice, to use commercially reasonable efforts to re-perform the NPS Services or correct the Deliverables as stated above, or failing that, NAVITAIRE will return the fees paid to NAVITAIRE for the portion of the work related to the breach. |
1.3 | License. |
1.3.1 | Notwithstanding anything contained in this Agreement, the following section will apply to the NPS Services and Deliverables, in lieu of Section 7.1 of the Agreement. |
1.3.2 | After acceptance of a Deliverable by the Customer, and pending final payment, NAVITAIRE hereby grants to Customer a revocable, nontransferable, non-exclusive unpaid right and license to use, copy, modify and prepare derivative works of such Deliverable for purposes of Customer's internal business only. Upon final payment, NAVITAIRE shall grant to Customer a perpetual, nontransferable, non-exclusive, paid-up right and license to use, copy, modify and prepare derivative works of the Deliverables, for purposes of Customer's internal business only. All licenses granted will be subject to any restrictions applicable to any third party materials embodied in the Deliverables. To the extent any Deliverable contains NAVITAIRE Confidential Information, it shall be subject to Section 9 of the Agreement. All other intellectual property rights in the Deliverables shall consist of NAVITAIRE Property, as defined in Section 7.2 of the Agreement. |
1.3.3 | The License does not include the right to, and Customer will not directly or indirectly: (a) grant any sublicense or other rights to any Deliverables; (b) authorize any other party to grant any sublicense with respect to any Deliverables; (c) reverse engineer, disassemble or decompile any of the Deliverables or attempt to discover or recreate the source code to any Deliverables; or (d) remove, obscure, or alter any notice of copyright, trademark, trade secret, or other proprietary right related to the Deliverables. |
2 | Form of Work Order |
1. | Scope of Work. The following will be provided to Customer (on and/or off-site): |
• | Plan |
• |
• | Analyze |
• |
• | Design |
• |
• | Build |
• |
• | Test |
• | Assist Customer in resolving issues identified during QA and/or user acceptance testing results. |
• | Deploy |
• |
• | Manage Project |
• | A delivery manager will monitor project status on a weekly basis for the duration of the project. |
• | A portfolio manager will monitor resource utilization, expenses, and billing statistics for the duration of the project. |
• | Depending on the scope and duration of the project, status information may occasionally be documented and distributed to interested parties. |
• | Performing project management duties as required by Customer's business needs. |
• | Creating and executing QA test cases and performing user acceptance on the solution. |
2. | Assumptions: The following assumptions are made: |
• | Customer shall perform those tasks and fulfill those responsibilities specified in this Work Order ("Customer Responsibilities") so that Service Provider can perform NPS Services and provide Deliverables. Customer understands that Service Provider's performance is dependent on Customer's timely and effective performance of Customer Responsibilities under this Work Order and timely decisions and approvals by Customer. |
• | Service Provider shall be entitled to rely on all decisions and approvals of the Customer in connection with the NPS Services or Deliverables. |
3. | NPS Services and Deliverables: The following NPS Services and/or Deliverables will be provided to Customer: |
• |
4. | Payment: Customer agrees to pay NAVITAIRE for the total actual work performed under this Work Order and for NAVITAIRE's expenses outlined in Section 6 below. The actual billable costs for this Work Order will be invoiced to Customer on a monthly basis, subject to the payment terms specified in the Agreement. |
5. | Estimated Dates of Performance: [Project Duration - Month Day, Year - Month Day, Year] |
Project Component | Hours | % of Total | ||||||||||||
Plan | 0 | 0% | ||||||||||||
Analyze | 0 | 0% | ||||||||||||
Design | 0 | 0% | ||||||||||||
Build | 0 | 0% | ||||||||||||
Test | 0 | 0% | ||||||||||||
Deploy | 0 | 0% | ||||||||||||
Manage Project | 0 | 0% | ||||||||||||
ESTIMATED TOTAL | 0 | 100% |
6. | Estimated Total Dollar Amount: $x,xxx USD: |
Expense Component | Cost | |||||||
Resources | $0 | |||||||
Travel and other related expenses | $0 | |||||||
ESTIMATED TOTAL | $0 |
7. | Planned Hosting Solution |
Signed for and on behalf of | Signed for and on behalf of | |||||||||||||||||||||||||
CUSTOMER* | SERVICE PROVIDER | |||||||||||||||||||||||||
By: | By: |
Name: | Name: |
Title: | Title: |
Company: | Date: |
Date: |
A. | NAVITAIRE and Customer are parties to that certain NAVITAIRE Hosted Services Agreement dated as of February 28, 2007, as amended (collectively the "Agreement"), pursuant to which NAVITAIRE performs Hosted Services for Customer. |
B. | Section 19.1 of the Agreement permits the parties to amend the terms and conditions of the Agreement provided such amendment is made in writing signed by the parties. |
C. | NAVITAIRE and Customer desire to amend the terms of the Agreement as provided below. |
1 | Amendment to add APIS Quick Query "AQQ" to the Agreement, as follows: |
a) | Scope of Services. The following is hereby added to Exhibit A, Section 2, Scope of Services: |
X APIS Quick Query "AQQ" |
b) | Functionality. The following is hereby added to Exhibit A, Section 6, New Skies by Navitaire Functionality Included in Hosted Reservation Services of the Agreement, as follows: |
APIS Quick Query "AQQ" | ||
General Features - APIS Quick Query | ||
• Ability to request real-time automated screening and processing of passenger data prior to printing a boarding pass. • Process can be invoked via: • Web check-in • Airport counter check-in • Kiosk check-in • IATC (Inter-Airline Through Check-in) • Boarding Process • Includes integration with SkySpeed, SkySales, Reporting, and core New Skies processing. Note: Customer is responsible for negotiating and maintaining the appropriate agreements and any costs associated with the other host provider(s) for this connectivity. |
c) | Service Fees. The Monthly Recurring Services Fees - APIS Quick Query Connectivity Services/Products are hereby added to Exhibit A, Section 8.1.8 of the Agreement, as follows: |
8.1.8 | Monthly Recurring Services Fees - APIS Quick Query Connectivity Services/Products. (Applicable only if selected in Section 2 of Exhibit A.) |
Description | APIS Quick Query Connectivity Services/Products | |||||||
Requires Base AVS Type B/Teletype | ||||||||
Monthly Infrastructure and Support Fee | [***] minimum fee per month (includes 150,000 AQQ segments)* | |||||||
Per Segment Transaction Fee | [***] per segment above 150,000 AQQ segments |
* | Any APIS Quick Query segment volumes collectively for all transactions above the included 150,000 AQQ segments will incur the additional Monthly Recurring Service Fees outlined in Section 8.1.8 above. |
Note: | Any applicable message fees, segment fees or data circuits pertaining to the CRS/GDS and/or SITA/ARINC are the responsibility of the Customer. |
d) | Implementation Fees. The Implementation Fees in Exhibit A, Section 8.2, are amended to include the following: |
Product/Service Description | Implementation Fees (including Training) | |||||||
APIS Quick Query "AQQ" | [***] |
* | Implementation Fee excludes travel expenses but does include the development fee. Implementation Fee will be invoiced to Customer upon signature of this Amendment. |
2 | Amendment to correct the Seasonality Allocation Schedule of the Agreement, as follows: |
a) | Seasonality Allocation Schedule. The two paragraphs immediately preceding the Seasonality Allocation Schedule and the Seasonality Allocation Schedule, located in Section 8.1.1 Recurring Service Fees - Core Services/Products, are hereby replaced in their entirety, as follows: |
Customer may designate the seasonality allocation of the Annual Minimum Guarantee of Passengers Boarded over the Agreement year. For example, if the Customer specified seasonality allocation for month 1 is 10% and the Annual Minimum Guarantee of Passengers Boarded for that year is 7,000,000, the minimum monthly amount invoiced and due would be 700,000 multiplied by the applicable Per Passenger Boarded fee. If the actual Passengers Boarded is in excess of this number then the amount for actual number of Passengers Boarded will be invoiced. |
Customer may designate changes to the Seasonality Allocation Schedule once each year. Changes to the Seasonality Allocation Schedule will be made in writing and acknowledged by both parties. Unless the parties mutually agree otherwise, prior to March 31 of each year, the Seasonality Allocation for the upcoming year will remain unchanged. The minimum Seasonality Percentage for any given month will be six percent (6%) or higher. The Drop Down Rate will apply for Passengers Boarded in excess of the Number of Guaranteed Minimum Passengers Boarded per month, as detailed in the Seasonality Allocation Schedule. |
Month | Guarantee Schedule for June 2008 - May 2009 Seasonality Percentage | Number of Guaranteed Minimum Passengers Boarded per month based on Annual Guaranteed Minimum Passengers Boarded (% multiplied by AMGPB)** | Minimum Monthly Fee | |||||||||||||||||
June | [***] | [***] | [***] | |||||||||||||||||
July | [***] | [***] | [***] | |||||||||||||||||
August | [***] | [***] | [***] | |||||||||||||||||
September | [***] | [***] | [***] | |||||||||||||||||
October | [***] | [***] | [***] | |||||||||||||||||
November | [***] | [***] | [***] | |||||||||||||||||
December | [***] | [***] | [***] | |||||||||||||||||
January | [***] | [***] | [***] | |||||||||||||||||
February | [***] | [***] | [***] | |||||||||||||||||
March | [***] | [***] | [***] | |||||||||||||||||
April | [***] | [***] | [***] | |||||||||||||||||
May | [***] | [***] | [***] |
* | All passengers boarded in excess of these monthly minimum guarantees will be invoiced per terms described in Section 6.3 of this Agreement. |
** | The total of this column will always equal the applicable year of Annual Minimum Guarantee of Passengers Boarded (AMGPB). |
3 | No Other Changes. Except as specifically amended by this Amendment, all other provisions of the Agreement remain in full force and effect. This amendment shall not constitute or operate as a waiver of, or estoppel with respect to, any provisions of the Agreement by any party hereto. |
4 | Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. |
5 | Successors and Assigns. This Amendment shall inure to the benefit of and be binding upon NAVITAIRE and the Customer and their respective successors, heirs and assigns. |
6 | Conflict of Provisions. In the even that there exists a conflict between any term, condition, or provision contained within this Amendment, and in any term, condition, or provision contained within the Agreement, the term, condition, or provision contained within this Amendment shall control. |
NAVITAIRE INC. | ||||||||||||||
By: | /s/ S. Dabkowski | |||||||||||||
Its: | Managing Director |
Date: | Jan 10, 2009 |
CUSTOMER | ||||||||||||||
By: | /s/ Scott Allard | |||||||||||||
Its: | VP, CIO |
Date: | Dec 17, 2008 |
Airline: | Spirit |
A. | NAVITAIRE and Customer are parties to that certain NAVITAIRE Hosted Services Agreement dated as of February 28, 2007, as amended by: (1) Amendment No. 1 dated as of October 23, 2008; (ii) Amendment No. 2 dated as of May 18, 2008; and (iii) Amendment No. 3 dated as of November 21, 2008 (the "Agreement"), pursuant to which NAVITAIRE performs Hosted Services for Customer. |
B. | Section 19.1 of the Agreement permits the parties to amend the terms and conditions of the Agreement provided such amendment is made in writing signed by the parties. |
C. | NAVITAIRE and Customer desire to amend the terms of the Agreement as provided below. |
1 | Amendment to add Secure Flight to the Agreement, as follows: |
a) | Scope of Services. The following is hereby added to Exhibit A, Section 2, Scope of Services: |
X Secure Flight |
b) | Functionality. The following functionality is hereby added to Exhibit A, Section 6, New Skies by NAVITAIRE Functionality Included in Hosted Reservation Services. as follows: |
Secure Flight | ||
Interim Solution - Secure Flight for New Skies 2.3 r2 series | ||
• Transmit Secure Flight Passenger Data (SFPD) using low-priority batch messages | ||
• Ability to deliver passenger records to DHS in a series of batch messages, which will be processed seventy-two (72) hours prior to the scheduled time of departure for qualifying flights. |
• Ability to generate messages for each booking, on each qualifying flight, that will contain full SFPD information as available in the reservation at that time. Transmission numbers and sequence numbers will not be used; however, PNR and passenger unique reference numbers will be included. | ||
• Ability to pass flight information that will include host airline operational legs in a single New Skies journey. | ||
• Batch responses from DHS will be accepted then dropped (boarding pass printing results will not be stored). | ||
• Generate interactive transmission during check-in which will be used to obtain authorization for boarding pass issuance for all passengers. | ||
• Ability to generate New Passenger messages per passenger for the host airline operational legs being checked in, including any lap infant accompanying the passenger. | ||
• Ability to halt check-in of a passenger upon receipt of an Inhibited or Error response. | ||
• Ability to allow agent to indicate photo ID has been verified for an additional attempt to obtain clearance. | ||
• Accept and acknowledge unsolicited messages from DHS. | ||
• Ability to accept unsolicited messages from DHS and generate an acknowledgement to DHS indicating the checked-in status of the passengers(s) contained within. | ||
• Ability to inhibit boarding of passengers already checked in who receive a more restrictive boarding pass printing result in the unsolicited message. | ||
• Ability to determine if APIS or SFPD documentation is required for an itinerary. | ||
• Ability to accept or generate the appropriate SFPD as well as APIS data during AQQ processing, based on itinerary. |
c) | Monthly Recurring Service Fee. The Monthly Recurring Services Fees - Secure Flight Connectivity Services/Products are hereby added as Exhibit A, Section 8.1.9, as follows: |
8.1.9 | Monthly Recurring Services Fees - Secure Flight Connectivity Services/Products. (Applicable only if selected in Section 2 of Exhibit A.): |
Description | Secure Flight | |||||||
Price per Service | ||||||||
Monthly Infrastructure and Support Fee | [***] (includes up to the monthly minimum number of Passengers Boarded as provided for in the Seasonality Allocation Schedule*) | |||||||
Per Passenger Boarded Transaction Fee | [***] per Passenger Boarded above the included monthly minimum transactions |
* | Section 8.1 (b) of the Agreement and Section 2 (a) of Amendment No. 3 to the Agreement contain further clarification of the Seasonality Allocation Schedule and the distribution of the number of guaranteed minimum Passengers Boarded per month. |
Note: | Any applicable message fees, segment fees or data circuit fees charged by a CRS/GDS/ARS and/or SITA/ARINC in connection with, or as a result of, the support of Secure Flight functionality, are the responsibility of Customer. |
d) | Implementation Fees. The Implementation Fees in Exhibit A, Section 8.2 are amended to include the following: |
Product/Services Description | Implementation Fees (Including Training) | |||||||
Secure Flight - Interim Solution | [***] Implementation Fee* |
* | Implementation Fees includes: (a) up to a maximum of [***] hours of implementation support including project management, operations, NAVITAIRE system training, and support personnel; and (b) development costs. Implementation hours in excess of the included [***] hours will be invoiced to Customer on a time and materials basis. Development costs include the Unsolicited Message work, as documented in CR 125614. If additional development costs are incurred due to new requirements coming out of UAT and/or government testing, they will be invoiced to Customer on a time and materials basis. |
Development Costs [***] and Implementation Costs [***]: [***] will be invoiced to Customer and is due upon signature of this Amendment, [***] will be invoiced to Customer and is due upon upgrade of the test account, and the remaining [***] will be invoiced to Customer and is due upon upgrade of the production account. |
2 | No Other Changes. Except as specifically amended by this Amendment, all other provisions of the Agreement remain in full force and effect. This agreement shall not constitute or operate as a waiver of, or estoppel with respect to, any provision of the Agreement by any party hereto. |
3 | Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. |
4 | Successors and Assigns. This Amendment shall inure to the benefit of and be binding upon NAVITAIRE and the Customer and their respective successors, heirs and assigns. |
5 | Conflict of Provisions. In the event that there exists a conflict between any term, condition, or provision contained within this Amendment, and in any term, condition, or provision contained within the Agreement, the term, condition, or provision contained within this Amendment shall control. |
NAVITAIRE INC. | ||||||||||||||
By: | /s/ J. Dabkowski | |||||||||||||
Its: | Managing Director | |||||||||||||
Date: August 28, 2009 | ||||||||||||||
CUSTOMER | ||||||||||||||
By: | /s/ Craig Maccubbin | |||||||||||||
Its: | Chief Information Officer | |||||||||||||
Airline: Spirit Airlines | ||||||||||||||
Date: 8-20-2009 |
A. | NAVITAIRE and Customer are parties to that certain NAVITAIRE Hosted Services Agreement dated as of February 28, 2007, as amended by: (i) Amendment No. 1 dated as of October 23, 2008; (ii) Amendment No. 2 dated as of May 18, 2008; (iii) Amendment No. 3 dated as of November 21, 2008; and (iv) Amendment No. 4 dated as of August 17, 2009 (the "Agreement"), pursuant to which NAVITAIRE performs Hosted Services for Customer. |
B. | Section 19.1 of the Agreement permits the parties to amend the terms and conditions of the Agreement provided such amendment is made in writing signed by the parties. |
C. | NAVITAIRE and Customer desire to amend the Agreement as provided below. |
1 | Amendment to Add Advanced Passenger information System (APIS) to the Agreement, as follows: |
a) | Scope of Services. The following is hereby added to Exhibit A, Section 2, Scope of Services: |
a) | Functionality. The following functionality is hereby added to Exhibit A, Section 6, New Skies by NAVITAIRE Functionality Included in Hosted Reservation Services, as follows: |
General Features - Advanced Passenger Information System (APIS) | ||
• Ability to collect via travel document information from various sources during the booking process and at check-in APIS is supported in the following products: | ||
• Call center applications (SkySpeed) • Airport (SkyPort) via passport scanner or manual input • API (Booking and shack-in) • GDS • Code-Share | ||
• System supports document verification processes during check-in and passenger boarding (as required). |
General Features - Advanced Passenger Information System (APIS) | ||
• APIS date is transmitted via SITA/ARINC in UN-EDIFACT/PAXLST format with the following information | ||
• Flight • Passenger • Travel Documents (mandatory and optional) • Functionality is available in New Skies release 2.2 and higher. | ||
Note: Customer is responsible for negotiating and maintaining the appropriate agreements and any costs associated with the other host provider(s) for this connectivity. Customer should also note that this APIS section refers to US message requirements. Other APIS may require some adjustment/development depending on any differences between US APIS and these other government APIS requirement. | ||
NAVITAIRE may in some instances be precluded under governmental regulations and laws from providing this functionality in whole or in part. |
b) | Monthly Recurring Service Fees. The Monthly Recurring Services Fees - Advance Passenger Information System (APIS) Connectivity Services/Products are hereby added to Exhibit A, Section 8.1.10 of the Agreement, as follows: |
Monthly infrastructure and Support Fee | [***] | |||||||
Per Messages Transaction Fee | [***] |
* | Pricing is valid for the functionality described In Exhibit A, Section 5, in support of the Advanced Passenger Information System (APIS). | |||||||
** | Any APIS message volumes collectively for all APIS transactions above the included fifty thousand (50,000) APIS messages will incur the additional Monthly Recurring Service Fees outlined in Section 8.1.10 above. | |||||||
Note: | Any applicable message fees, segment fees or data circuit fees charged by a CRS/GDS/ARS and/or SITA/ARINC In connection with, or as a result of, the support of APIS functionality, are the responsibility of Customer. |
Advanced Passenger Information System (APIS) | [***] |
* | Support for each country-specific APIS implementation requires initiation of an implementation project and may be subject to additional development Teas. Implementation Fees will be invoiced to Customer per the standard terms of the Agreement. |
2 | No Other Changes. Except as specifically amended by this Amendment, all other provisions of the Agreement remain in full force and effect. This Amendment shall not constitute or operate as a waiver of, or estoppel with respect to, any provisions of the Agreement by any party hereto. |
3 | Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. |
4 | Successors and Assigns. This Amendment shall Inure to the benefit of and be binding upon NAVITAIRE and the Customer and their respective successors, heirs and assigns. |
5 | Conflict of Provisions. In the event that there exists a conflict between any term, condition, or provision contained within this Amendment, and in any term, condition, or provision contained within the Agreement, the term, condition, or provision contained within this Amendment shall control. |
NAVITAIRE INC. | ||||||||
By: | /s/ J.D. Dabkowski | |||||||
Its: | Managing Director | |||||||
Date: | February 8, 2010 | |||||||
CUSTOMER | ||||||||
By: | /s/ Craig Maccubbin | |||||||
Its: | CIO | |||||||
Date: | December 4, 2009 | |||||||
Airline | Spirit Airlines |
Hosted Services Agreement - Confidential | NAVITAIRE INC. |
A. | NAVITAIRE and Customer are parties to that certain NAVITAIRE Hosted Services Agreement dated as of February 28, 2007, as amended by: (i) Amendment No. 1 dated as of October 23, 2008; (ii) Amendment No. 2 dated as of May 18, 2008; (iii) Amendment No. 3 dated as of November 21, 2008; (iv) Amendment No. 4 dated as of August 17, 2009; and (v) Amendment No. 5 dated as of November 4, 2009 (the "Agreement"), pursuant to which NAVITAIRE performs Hosted Services for Customer. |
B. | Section 19.1 of the Agreement permits the parties to amend the terms and conditions of the Agreement provided such amendment is made in writing signed by the parties. |
C. | NAVITAIRE and Customer desire to amend the terms of the Agreement as provided below. |
1 | Amendment to add Secure Flight to the Agreement, as follows: |
a) | Functionality. The following functionality is hereby added to Exhibit A, Section 6, New Skies by Navitaire Functionality Included in Hosted Reservation Services. as follows: |
Secure Flight | ||
General Features - Secure Flight Solution for New Skies 3.2.x series | ||
• Ability to collect Secure Flight Passenger Data (SFPD) through all booking channels and during the check-in process. | ||
• Ability to create and transmit SFPD UN-EDIFACT messages to the United States Department of Homeland Security (US-DHS) message router for passengers. | ||
• Ability to collect Gate Pass Holder information with subsequent creation and transmission of SFPD Gate Pass UN-EDIFACT messages to US-DHS message router prior to issuance of gate passes via SkyPort. The gate pass is a document issued to non-travelers, allowing them entry though airport security to a sterile area normally reserved for passengers. | ||
• Ability to process US-DHS response messages by assigning boarding pass printing results and Electronic System for Travel Authorization (ESTA) status to the passenger. | ||
• Ability to process US-DHS unsolicited messages by creating and transmitting acknowledgement messages to the US-DHS router. | ||
• Ability to evaluate the Boarding Pass Printing Result and ESTA status during the check-in and boarding process. | ||
• Ability to display the Boarding Pass Printing Result and ESTA status in SkyPort. | ||
• Ability to perform batch and interactive transmission of SFPD messages during the Secure Flight transmission window (the 72 hours prior to departure). | ||
• Ability to collect, store, and include Passenger Redress Number in SFPD messages. | ||
• Ability to collect, store, and include Known Traveler Number in SFPD messages. | ||
Note: Customer is responsible for negotiating and maintaining the appropriate agreements and any costs associated with the other host provider(s) for this connectivity. | ||
Limitations and Exclusions - Secure Flight Solution for New Skies 3.2.x series | ||
• Transmission of crew data is not supported. | ||
• Domestic to domestic international flights for United States carriers (e.g. ORY to NCE). | ||
• Ability to receive Passenger Redress number and Known Traveler number is not currently available via IATCI messaging. | ||
• Additional industry or IATA requirements not specifically included above. |
Hosted Services Agreement - Confidential | NAVITAIRE Inc. |
b) | Monthly Recurring Service Fees. The following note is added to Section 8.1.9, Monthly Recurring Services Fees - Secure Flight Connectivity Services/Products, of Exhibit A of the Agreement: |
Note 2: | Monthly Recurring Service Fees for Secure Flight include cost savings realized by leveraging the existing AQQ infrastructure. Should Customer request termination of the current AQQ commercial arrangements, whether voluntarily or by government mandate, the Monthly Recurring Service Fees for Secure Flight will be increased. |
c) | Implementation Fees. The Implementation Fees in Exhibit A, Section 8.2 are amended to include the following: |
Product/Service Description | Implementation Fees (Including Training) | |||||||
Secure Flight - Full Solution | [***] |
* | Implementation Fee includes: (a) up to a maximum of [***] of implementation support including project management, operations, NAVITAIRE system training, and support personnel; and (b) development costs. Implementation hours in excess of the included [***] will be invoiced to Customer on a time and materials basis. If additional development costs are incurred due to new requirements coming out of UAT and/or government testing, they will be invoiced to Customer on a time and materials basis. |
Implementation Fee will be invoiced to Customer as follows: |
Secure Flight implementation is dependent upon Customer obtaining required commercial agreements between system providers and contingent upon Customer's prior upgrade to the required release of New Skies. If NAVITAIRE Project Management assistance is required for further upgrades to New Skies, it will be requested via the NAVITAIRE standard Work Order process and is billable to Customer on a time and materials basis. |
2 | No Other Changes. Except as specifically amended by this Amendment, all other provisions of the Agreement remain in full force and effect. This Amendment shall not constitute or operate as a waiver of, or estoppel with respect to, any provisions of the Agreement by any party hereto. |
3 | Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. |
4 | Successors and Assigns. This Amendment shall inure to the benefit of and be binding upon NAVITAIRE and the Customer and their respective successors, heirs and assigns. |
5 | Conflict of Provisions. In the event that there exists a conflict between any term, condition, or provision contained within this Amendment, and in any term, condition, or provision contained within the Agreement, the term, condition, or provision contained within this Amendment shall control. |
Hosted Services Agreement - Confidential | NAVITAIRE INC. |
NAVITAIRE INC. | ||||||||
By: | J. Dabowski | |||||||
Its: | MANAGING DIRECTOR | |||||||
Date: JUNE 9, 2010 |
CUSTOMER | ||||||||
By: | Craig Maccubbin | |||||||
Its: | CIO | |||||||
Airline: SPIRIT AIRLINES | ||||||||
Date: 4-9-2010 |
Hosted Services Agreement - Confidential | NAVITAIRE LLC |
A. | NAVITAIRE and Customer are parties to that certain NAVITAIRE Hosted Services Agreement dated as of February 28, 2007, as amended by: (i) Amendment No. 1 dated as of October 23, 2008; (ii) Amendment No. 2 dated as of May 18, 2008; (iii) Amendment No. 3 dated as of November 21, 2008; (iv) Amendment No. 4 dated as of August 17, 2009; (v) Amendment No. 5 dated as of November 4, 2009; and (vi) Amendment No. 6 dated as of February 1, 2010 (the "Agreement"), pursuant to which NAVITAIRE performs Hosted Services for Customer. |
B. | Section 19.1 of the Agreement permits the parties .to amend the terms and conditions of the Agreement provided such amendment is made in writing signed by the parties. |
C. | NAVITAIRE and Customer desire to amend the terms of the Agreement as provided below. |
1 | Settlement and Clarification of Invoices, as follows: |
a) | The parties have reached agreement to settle any and all issues related to the provision of services by NAVITAIRE to Customer accruing from February 28, 2007 to the Effective Date (the "Settled Issues") by providing the accomodations listed in Sections 1 and 2 of this Amendment in consideration for Customer's release provided in Section 7. |
b) | Invoice 1020007332. NAVITAIRE releases Customer from the obligation of paying the amount of [***] issued on June 10, 2010. This invoice is for the Secure Flight development fee, as per Amendment No. 6 of the Agreement. |
c) | Invoice 1020007377. Customer will pay in full to NAVITAIRE the amount of [***] issued on June 16, 2010. This invoice is for the New Skies 3.2 upgrade, as per Work Order 80224 of the Agreement. |
d) | Amounts Not Yet Invoiced. NAVITAIRE releases Customer from the obligation of paying the remaining amount that has not yet been invoiced for the a) New Skies 3.2 upgrade, as per Work Order 80224 of the Agreement (excluding travel expenses which remain payable by Customer) and b) Secure Flight Implementation, as per Amendment No. 6 of the Agreement. All other invoices will be paid by Customer as per the Agreement. |
2 | Amendment to reduce the Monthly Minimum Segment Guarantees, as follows: |
Hosted Services Agreement - Confidential | NAVITAIRE LLC |
Year | Annual Minimum Guarantee of Passengers Boarded "AMGPB"* | |||||||
(Passengers Boarded) | ||||||||
1 (June 1, 2008 - May 31, 2009) | [***] | |||||||
2 (June 1, 2009 - May 31, 2010) | [***] | |||||||
3 (June 1, 2010 - May 31, 2011) | [***] | |||||||
4 (June 1, 2011 - May 31, 2012) | [***] | |||||||
5 (June 1, 2012 - May 31, 2013) | [***] | |||||||
6 (June 1, 2013 - May 31, 2014) | [***] | |||||||
7 (June 1, 2014 - May 31, 2015) | [***] | |||||||
8 (June 1, 2015 - May 31, 2016) | [***] | |||||||
9 (June 1, 2016 - May 31, 2017) | [***] | |||||||
10 (June 1, 2017 - May 31, 2018) | [***] | |||||||
11* (June 1, 2018 - August 31, 2018) | [***] |
* | Contract year eleven (11) will be a partial year with an average of [***] Guaranteed Minimum Passengers Boarded per month. |
3 | Amendment to modify the Term of the Agreement, as follows: |
5.1 | Term. Unless otherwise terminated earlier under this Section 5, this Agreement shall commence on June 1, 2008 and continue for an Initial Term of ten (10) years and three (3) months for the respective Hosted Services. This Agreement will renew automatically for two (2) additional one (1) year renewal terms unless one party provides written notice of termination to the other party at least [***] calendar days prior to the end of the initial or any renewal term. NAVITAIRE may increase the Service Fees payable by Customer with respect to any renewal term; provided that NAVITAIRE gives Customer written notice of such increase in Service Fees at least [***] prior to the end of the then current term, but otherwise the terms hereof shall likewise apply to each renewal term. |
4 | Amendment to provide Annual Service Credits, as follows: |
5 | Amendment to add New Skies SAS70 reports to the Agreement, as follows: |
Hosted Services Agreement - Confidential | NAVITAIRE LLC |
6 | Amendment to add Third-Party Procurement as Section 19.7 of the Agreement, as follows: |
19.7 | Third Party Procurement. Both Accenture and Navitaire have alliance relationships with third party product and services vendors. As part of many such relationships, Accenture and Navitaire LLC are able to resell certain products and services and/or may receive compensation from vendors in the form of fees or other benefits in connection with the marketing, technical and other assistance provided by Accenture and/or Navitaire. Customer acknowledges that such relationships may be beneficial to Accenture and/or Navitaire LLC. |
7 | Customer Release of Claims. Upon execution of this Amendment No. 7 to the Agreement by both parties, Customer hereby agrees to fully and irrevocably waive any and all claims it may have against NAVITAIRE prior to the Effective Date, provided that Customer does not forfeit or waive any rights it may have under the Agreement associated with failures to meet the Minimum System Availability Target SLA by Navitaire prior to the Effective Date. For the avoidance of doubt, the parties agree that through the Effective Date there have been two (2) failures of NAVITAIRE to meet Minimum System Availability Target (January 2010 and March 2010) as described in Exhibit A Section 9.8.2. In consideration for the various credits and monthly minimum reductions to be provided by NAVITAIRE pursuant to this Amendment No. 7, Customer hereby waives and releases all rights, claims, demands, and causes of action, of any nature whatsoever, known and unknown, arising out of or related to NAVITAIRE'S services for Customer in connection with the Settled Issues. |
8 | No Other Changes. Except as specifically amended by this Amendment, all other provisions of the Agreement remain in full force and effect. This Amendment shall not constitute or operate as a waiver of, or estoppel with respect to, any provisions of the Agreement by any party hereto. |
9 | Counterparts. This Amendment may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. |
10 | Successors and Assigns. This Amendment shall inure to the benefit of and be binding upon NAVITAIRE and the Customer and their respective successors, heirs and assigns. |
11 | Conflict of Provisions. In the event that there exists a conflict between any term, condition, or provision contained within this Amendment, and in any term, condition, or provision contained within the Agreement, the term, condition, or provision contained within this Amendment shall control. |
Hosted Services Agreement - Confidential | NAVITAIRE LLC |
NAVITAIRE LLC | ||||||||
By: | /s/ Illegible | |||||||
Its: | ||||||||
Date: |
CUSTOMER | ||||||||
By: | Craig Maccubbin | |||||||
Its: | CIO | |||||||
Airline: SPIRIT AIRLINES | ||||||||
Date: 8-31-2010 |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] | (U.S. Transactions) |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] | (U.S. Transactions) |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] | (U.S. Transactions) |
ATTENTION: | David Lancelot, Senior Vice President and Chief Financial Officer Fax: (954) 447-7967 or Email: david.lancelot@spiritair.com and David Bradford, Vice President and Treasurer Fax: (954) 447-7967 or Email: david.bradford@spiritair.com | |||||||
With a copy to: | Spirit Airlines, Inc. 2800 Executive Way Miramar, Florida 33025 | |||||||
ATTENTION: | Thomas Canfield, Senior Vice President and General Counsel Fax: (954) 447-7854 or Email: thomas.canfield@spiritair.com | |||||||
TO MEMBER: | U.S. Bank National Association Mail Station BC-MN-H22P 800 Nicollet Mall Minneapolis, Minnesota 55415 | |||||||
ATTENTION: | Credit Manager Telecopy: (612) 303-3653 | |||||||
TO SERVICER: | U.S. Bank National Association Mail Station BC-MN-H22P 800 Nicollet Mall Minneapolis, Minnesota 55415 | |||||||
ATTENTION: | Credit Manager Telecopy: (612) 303-3653 |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] | (U.S. Transactions) |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] | (U.S. Transactions) |
Signature: | /s/ D. Bradford | |||||||||||||||||||
Title: | VP Treasurer | |||||||||||||||||||
Date: |
Signature: | /s/ John R. Follert | |||||||||||||||||||
Title: | Its Authorized Representative | |||||||||||||||||||
Date: | 5/21/2009 |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] | (U.S. Transactions) |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] | (U.S. Transactions) |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
SECTION 1. | DEFINITIONS | 1 | ||||||||||||||||||
SECTION 2. | RULES AND REGULATIONS | 6 | ||||||||||||||||||
SECTION 3. | HONORING CARDS. | 7 | ||||||||||||||||||
SECTION 4. | CARDHOLDER ACCOUNT INFORMATION; SECURITY PROGRAM COMPLIANCE | 11 | ||||||||||||||||||
SECTION 5. | RETURNED UNUSED TRAVEL COSTS; CREDIT ADJUSTMENT | 13 | ||||||||||||||||||
SECTION 6. | SUBMISSION OF ELECTRONIC SALES RECORDS AND ELECTRONIC CREDIT RECORDS | 13 | ||||||||||||||||||
SECTION 7. | ELECTRONIC TRANSMISSION. | 15 | ||||||||||||||||||
SECTION 8. | CHARGEBACKS. | 16 | ||||||||||||||||||
SECTION 9. | REPRESENTATIONS AND WARRANTIES | 17 | ||||||||||||||||||
SECTION 10. | SERVICE MARKS AND TRADEMARKS | 19 | ||||||||||||||||||
SECTION 11. | AUDIT | 20 | ||||||||||||||||||
SECTION 12. | DISPUTES WITH CARDHOLDERS | 20 | ||||||||||||||||||
SECTION 13. | ASSIGNMENT; DELEGATION OF DUTIES | 20 | ||||||||||||||||||
SECTION 14. | INDEMNIFICATION; LIMIT ON LIABILITY | 21 | ||||||||||||||||||
SECTION 15. | TERMINATION AND WAIVER | 22 | ||||||||||||||||||
SECTION 16. | NOTICES | 23 | ||||||||||||||||||
SECTION 17. | RULES AND REGULATIONS; APPLICABLE LAW | 23 | ||||||||||||||||||
SECTION 18. | REIMBURSEMENT BY CARRIER | 24 | ||||||||||||||||||
SECTION 19. | COST AND EXPENSES | 24 | ||||||||||||||||||
SECTION 20. | ASSISTANCE | 25 | ||||||||||||||||||
SECTION 21. | REPORTING | 25 | ||||||||||||||||||
SECTION 22. | GENERAL | 26 | ||||||||||||||||||
SECTION 23. | REMEDIES CUMULATIVE | 27 | ||||||||||||||||||
SECTION 24. | CONFIDENTIALITY | 27 |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
SECTION 25. | FORCE MAJEURE | 28 | ||||||||||||||||||
SECTION 26. | ASSOCIATION OBLIGOR | 28 | ||||||||||||||||||
SECTION 27. | JUDGMENT CURRENCY | 28 | ||||||||||||||||||
SECTION 28. | WAIVER OF SOVEREIGN IMMUNITY | 29 | ||||||||||||||||||
Exhibits and Schedules | ||||||||||||||||||||
Exhibit A | Payment Days |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
Settlement Currency | Applicable Rate | ||||||||||
U.S. Dollars | [***] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
File Received by Member or Servicer by 9:00 P.M. (prevailing Central time, U.S.) | Day Funded (via wire) | ||||||||||
Monday | Tuesday | ||||||||||
Tuesday | Wednesday | ||||||||||
Wednesday | Thursday | ||||||||||
Thursday | Friday | ||||||||||
Friday | Monday | ||||||||||
Saturday | Tuesday | ||||||||||
Sunday | Tuesday |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
A. | [***] |
B. | [***] |
C. | [***] |
D. | [***] |
E. | [***] |
F. | [***] |
G. | [***] |
H. | [***] |
I. | [***] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] [page 1 of 61] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
1. | Certain Definitions. |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] [page1 of 61] | (U.S. Transactions) |
2. | Exposure Protection |
(a) | Upon commencement of the Agreement, Member or Servicer may retain and hold all funds paid to Member by a Card Association on account of Sales Records submitted by Carrier to Servicer or Member as Reserved Funds until the amount of the Aggregate Protection equals the Required Amount, as determined in accordance with Sections 3 and 8 of this Exposure Protection Schedule. In lieu of retaining Reserved Funds, or in addition to retaining and holding Reserved Funds, Member or Servicer, in its sole discretion, may, based upon the Net Activity report delivered under Section 6.4 of the MTOS or other relevant documentary evidence, demand that Carrier, and Carrier shall upon such demand, remit to Servicer within two (2) Business Days of Servicer's demand immediately available funds to hold as the Deposit in an amount that when added to amounts (if any) retained and held by or on behalf of Member or Servicer as the Deposit causes the amount of the Aggregate Protection to equal the Required Amount. The Deposit amount shall be |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
subject to adjustment as provided in Section 3 of this Exposure Protection Schedule. Member, Servicer or any Secured Party will hold the Deposit as security for the due and punctual payment of and performance by Carrier of the Obligations. |
(b) | To the extent Carrier has or may at any time acquire any rights in Carrier's Rights, Carrier grants to each of Servicer, Member, and all other Secured Parties a Lien on the Deposit and all other Carrier's Rights to secure the payment and performance by Carrier of all Obligations. Each Secured Party shall act as agent for all Secured Parties to the extent that any such Secured Party controls or possesses the Deposit or any collateral hereunder or is named as Secured Party on any filing, registration or recording. Carrier hereby acknowledges that notwithstanding the foregoing grant of a Lien, Reserved Funds represent only a future right to payment owed to Carrier under the Agreement, payment of which is subject to the terms and conditions of the Agreement and to Carrier's complete and irrevocable fulfillment of its obligations and duties under the Agreement and do not constitute funds of Carrier. |
(c) | Carrier further agrees that during the term of the Agreement, Carrier shall not grant, or attempt to grant, to any other Person or suffer to exist in favor of any other Person any Lien or other interest in Carrier's Rights (if any) or in any proceeds thereof unless any such Lien or other interest and the priority thereof are subject to a subordination agreement in favor of Member, Servicer and all other Secured Parties and reasonably satisfactory to Servicer. This prohibition against the granting of any liens does not include a prohibition against the granting of liens in Carrier's right to payment under this Agreement from Member or Servicer after Member or Servicer has setoff any amounts that may be owing from Carrier to Member or Servicer under this Agreement (a "Right to Payment") and Member and Servicer acknowledge that they have received notice that Carrier has granted a lien in its Right to Payment in favor of Goldman Sachs Credit Partners LP ("Goldman") and certain other lenders pursuant to that certain Security Agreement and Chattel Mortgage, dated as of July 25, 2005, between Carrier and Wells Fargo Bank Northwest, National Association, as collateral agent on behalf of Goldman (the "Goldman Lien") |
(d) | Carrier hereby acknowledges that Member and Servicer dispute the existence of any interest of Carrier in any rights to payment from Cardholders or Card Issuers arising out of the Sales Records and further acknowledges that to the extent it may have an interest therein, such interest is subordinate to the interests of the Secured Parties and of any of their respective subrogees. |
(e) | Carrier will do all acts and things, and will execute, endorse, deliver, file, register or record all instruments, statements, declarations or agreements (including pledges, assignments, security agreements, financing statements, continuation statements, etc.) reasonably requested by Servicer, in form reasonably satisfactory to Servicer, to establish, perfect, maintain and continue the perfection and priority of the security interest and hypothec of Secured Parties in all Carrier's Rights and in all proceeds of the foregoing, as granted by Carrier pursuant to Section 2(b) and 2(d) of this Exposure Protection |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
Schedule. Carrier will pay the reasonable costs and expenses of all filings and recordings, including taxes thereon or fees with respect thereto and all searches reasonably necessary or deemed necessary by Servicer, to establish and determine the validity and the priority of such security granted in favor of Servicer. Carrier hereby irrevocably appoints Servicer (and all persons, officers, employees or agents designated by Servicer), its agent and attorney-in-fact to do all such acts and things contemplated by this paragraph in the name of Carrier. Without limiting the foregoing, Carrier hereby authorizes Servicer to file one or more financing statements or continuation statements in respect hereof, and amendments thereto, relating to any part of the collateral described herein without the signature of Carrier. A carbon, photographic or other reproduction of the Agreement or of a financing statement shall be sufficient as a financing statement and may be filed in lieu of the original in any or all jurisdictions which accept such reproductions. |
3. | Adjustments to Deposit |
(a) | Servicer will use the Methodology described in Section 8 of this Exposure Protection Schedule (the "Methodology") to calculate Gross Exposure each Business Day. Carrier acknowledges that Servicer has explained to it and it understands Servicer's Methodology for determining Gross Exposure and the amount of the Aggregate Protection and hereby agrees to be bound by such Methodology and the determinations made by Servicer as a result thereof, absent manifest error. Among other things, Carrier understands that Gross Exposure includes the value of Travel Costs for goods or services sold to Cardholders who used their Cards to purchase such goods or services with respect to which Carrier has not yet provided such goods or services. Servicer and Carrier may change the Methodology by mutual agreement. |
(b) | The amount of the Deposit shall be increased or decreased each Business Day, as appropriate, based on the Methodology so that the amount of the Aggregate Protection will at all times equal the Required Amount. Any necessary increases to the Deposit may be made, at Servicer's sole discretion by Member or Servicer withholding as Reserved Funds an amount up to [***] of amounts otherwise payable to Carrier under Section 6.2 of the MTOS until the amount of the Aggregate Protection is at least equal to the Required Amount, or by federal wire transfer of immediately available funds from Carrier to an account designated by Servicer, on the first (1st) Business Day after Carrier's receipt of notice from Servicer that an increase is required and the amount thereof. If the Servicer agrees to permit increases to the amount of the Deposit by wire transfer and the funds required to increase the amount of the Deposit so that the Aggregate Protection is equal to the Required Amount are not transferred to Servicer as required by this Section 3, Member or Servicer may immediately withhold on a daily basis as Reserved Funds an amount up to [***] of amounts otherwise payable to Carrier under Section 6.2 of the MTOS until the amount of the Aggregate Protection at least equals the Required Amount. Member or Servicer shall remit to Carrier from the Deposit the amount necessary to reduce the amount of the Aggregate Protection to equal the Required Amount on each Business Day in accordance with Section 6.2 of the MTOS. |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
(c) | The amount of the Deposit to be maintained hereunder may be reduced in accordance with Section 9 of this Exposure Protection Schedule pursuant to which Servicer accepts Letter of Credit in lieu of all or a portion of the Deposit so long as the Aggregate Protection equals the Required Amount. Similarly, Servicer shall accept a Letter of Credit meeting the terms contained herein in replacement of an existing Letter of Credit that is either (i) within 120 days of expiration or (ii) may, after the expiration of the appropriate time frame set forth in Section 9, be subject to a draw due to a downgrade of the bank that issued such Letter of Credit. |
(d) | Although Servicer has the right at all times to require that the amount of the Aggregate Protection equal the Required Amount, Servicer may, from time to time, in its sole discretion make remittances to Carrier or release portions of any Letter of Credit such that the Aggregate Protection is less than the Required Amount. The duration of any such reduction is within the sole discretion of Servicer. At any time that the amount of the Aggregate Protection is less than the Required Amount Servicer, in its sole discretion, may again require that the amount of the Aggregate Protection equal the Required Amount. Any required increase may be made as provided in Section 3(b) of this Exposure Protection Schedule as determined by Servicer. Any reductions in the amount of the Aggregate Protection as described in this paragraph shall not be deemed a course of dealing nor give rise to any rights by Carrier in the future to require that the amount of the Aggregate Amount be less than the Required Amount. |
(e) | If an event or series of events occurs that can reasonably be determined to have a materially positive effect on Carrier's present and prospective financial condition, then within ten days of each anniversary date of the Commencement Date Carrier may submit a written request to Servicer to review the Required Amount for consideration of a reduction in the percentage of Gross Exposure required to be maintained as the amount of the Aggregate Protection (a "Modification Request"). Servicer shall review the Modification Request and information presented by Carrier and attempt to respond to such request within thirty (30) days. Any determination of whether to agree to the Modification Request shall be made in the sole discretion of Servicer. If Servicer does not agree to the Modification Request, then Carrier shall have a period of fifteen (15) days from such response by Servicer to provide written notice to Servicer of Carrier's election to terminate the Agreement ninety days from the date Carrier's notice to terminate is delivered to Servicer. Carrier shall have no right to terminate the Agreement prior to its then current term (other than as a result of Servicer or Member's breach) if it fails to (i) deliver a Modification Request within the time frame stated in this Section or (ii) provide notice of termination as a result of a negative response by Servicer to a Modification Request within the time frame stated in this Section. |
4. | Control of Deposit |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
5. | Investment |
(a) | To the extent permitted by applicable law or regulation, all amounts held as the Deposit will be deemed to earn a yield equal to the Applicable Rate. The amount so earned shall be credited to the Deposit. |
6. | Right of Offset; Recoupment; Application |
7. | Retention of Deposit After Cessation |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
8. | [***] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
9. | Standby Letter of Credit |
(a) | The amount of the Aggregate Protection which Servicer or Member may maintain pursuant to this Exposure Protection Schedule shall include the sum of (a) the amount remaining to be drawn upon any valid and outstanding Letter of Credit and (b) the proceeds of any previous draw on a Letter of Credit held by Servicer or Member and not applied. At such time as the Servicer or Member may no longer draw on the Letters of Credit, Servicer may require that the amount of the Deposit plus proceeds of any draw on the Letters of Credit held by Servicer or Member and not applied equal the Required Amount. |
(b) | Upon the occurrence of any event that gives rise to Servicer's right under this Agreement to make demand on Carrier for payment to Servicer or Member of any Obligations and after (i) application of all amounts held as part of the Deposit and (ii) application of all amounts that would otherwise be payable to Carrier from Member or Servicer under the Agreement on such date, if any, then the Servicer, at its option, may draw on any Letter of Credit issued for its benefit with respect to the Agreement to pay such Obligations in an amount that does not exceed the sum of (A) the amount the Servicer has a right to demand that the Carrier pay the Servicer or Member under this Agreement on such date plus (B) the amounts the Servicer reasonably believes it will have a right to demand that the Carrier pay the Servicer or Member as Obligations during the following seven day period. |
(c) | Notwithstanding anything to the contrary contained in this Section 9 to the contrary, Servicer may draw upon the full amount of a Letter of Credit if sixty (60) days have passed since Servicer delivered written notice to Carrier that |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
the rating of the bank that issued the Letter of Credit has fallen below (A) [***] under the Moody's Investors Service rating system or (B) [***] under the Standard and Poor's rating system, or (C) if ratings from either of those services are unavailable, the equivalent rating of any of the foregoing under any similar rating system. |
(d) | Notwithstanding anything to the contrary contained in this Section 9 to the contrary, Servicer may draw upon the full amount of a Letter of Credit if (i) five (5) Business Days have passed since the rating of the bank that issued the Letter of Credit has fallen below (A) [***] under the Moody's Investors Service rating system or (B) [***] under the Standard and Poor's rating system, or (C) if ratings from either of those services are unavailable, the equivalent rating of any of the foregoing under any similar rating system, (ii) an Insolvency Proceeding is commenced by or against Carrier or (iii) the Letter of Credit is set to expire within 60 days and Servicer has not received notice of renewal of the Letter of Credit or an replacement letter of credit acceptable as to form and issuer in the sole discretion of Servicer. |
(e) | Carrier acknowledges that subject to its right to receive payments under this Agreement, it has no interest in any proceeds of any draw on any Letter of Credit issued for the benefit of Servicer or Member and that upon any valid draw on any Letter of Credit, Servicer or Member shall be entitled to hold the proceeds thereof for payment of the Obligations under the Agreement and apply such proceeds in payment thereof as and when Servicer reasonably deems appropriate, subject to the provisions of Section 7 of this Exposure Protection Schedule. Neither Servicer nor Member shall have any obligation to remit to any Person any excess proceeds of any draw on any Letter of Credit until expiration of the period specified in Section 7 of this Exposure Protection Schedule. In the event of any dispute between Carrier and the issuer of a Letter of Credit or any subrogee thereof, or any other Person with respect to entitlement to any proceeds of a Letter of Credit, Servicer or Member may retain all such proceeds until final resolution of such dispute by a court of competent jurisdiction, subject to the right of Servicer or Member to retain and apply proceeds in payment of the Obligations. In the event that Servicer or Member draws on a Letter of Credit and holds the proceeds thereof at a time when Carrier is conducting normal flight operations, Servicer or Member, at its option, may include such proceeds in its calculation of coverage for the Required Amount and remittances to Carrier may be made in accordance with Section 2 of this Exposure Protection Schedule as if the proceeds were part of the Deposit. Carrier further agrees that at Servicer's option, any excess proceeds of a Letter of Credit, as determined by Servicer in good faith after taking into account all obligations of the Carrier to the Secured Parties, may be remitted to the issuer of a Letter of Credit, or if the issuer has been reimbursed in full for all amounts owed to it on account of the draw on the Letter of Credit, to the account party thereof. |
10. | Fare Club Exposure |
(a) | The "Fare Club Exposure," as determined in accordance with this Section 10 shall be added to the calculation of Gross Exposure at all times; provided, |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
however, (i) the Fare Club Exposure will first be added to the calculation of Gross Exposure on the last Business Day of the first full month after the Commencement Date and (ii) the amount of the Fare Club Exposure will only be modified as of the last Business Day of each month. |
(b) | The initial calculation of the Fare Club Exposure shall be based upon the assumption that (i) the Fare Club memberships are only for a [***] period and (ii) sales of Fare Club membership average [***] per month. |
(c) | During the initial six month period beginning with the first full month after the Commencement Date, the following amounts shall constitute the Fare Club Exposure: |
Month No. | 1 | 2 | 3 | 4 | 5 | 6 | ||||||||||||||||||||||||||||||||
Fare Club Exposure Amount | [***] | [***] | [***] | [***] | [***] | [***] |
(d) | Within 10 days of the end of each month, Carrier shall provide Servicer with a report of its Fare Club membership sales for the preceding month made through the use of a Card (the "Fare Club Sales Report"). The first Fare Club Sales Report shall cover the first full calendar month after the Commencement Date. |
(e) | At the conclusion of each six month period, Servicer shall complete a reconciliation between the actual Fare Club Exposure then held and the actual exposure based upon the Fare Club Sales Reports (the "Reconciled Exposure"). The actual exposure for determining the Reconciled Exposure shall be determined by taking the fare club sales for any particular month and reducing such amount by [***] of the original monthly sale amount in each month after such sale until the amount reaches zero, with the first [***] reduction occurring in the month the fare club sale occurs (the "Exposure Reduction Methodology"). Based upon such reconciliation, the amount of Fare Club Exposure will modified to be equal to the Reconciled Exposure. |
(f) | During each successive six month period, the Fare Club Exposure will be determined by (i) using the most recent Reconciled Exposure and reducing such amount in each successive month in accordance with the Exposure Reduction Methodology and (ii) adding to the Fare Club Exposure each month an amount equal to the average monthly amount of fare club sales as determined by the most recent six Fare Club Sales Reports, but subtracting from the Fare Club Exposure an amount determined by applying the Exposure Reduction Methodology in succeeding months to the amounts added to the Fare Club Exposure. |
(g) | Servicer reserves the right to modify the Fare Club Exposure to the extent that Carrier sells fare club memberships with a term longer than one year. Carrier may request that Servicer adjust the calculation of Fare Club Exposure if at any time more the 40% of the fare club memberships then outstanding, when originally sold, were for terms materially shorter than one year. |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
Amount: | Initial Expiry Date/Place: | |||||||||||||||||||
See Exhibit C | 1 October 2010/New York, NY |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
[6.2.36] [U.S. Bank - Signatory Agreement.pdf] |
Re: | Irrevocable Standby Letter of Credit Number: SB246653 (the "Letter of Credit") |
Very truly yours, | ||||||||
U.S. Bank National Association | ||||||||
By: | ||||||||
Name: | ||||||||
Authorized Signatory |
Re: | Irrevocable Letter of Credit No. |
Name of Transferee | ||
Address |
[NAME OF TRANSFEROR] | ||||||||
By: | ||||||||
Title: |
[NAME OF TRANSFEREE] | ||||||||
By: | ||||||||
Title: | ||||||||
Address: | ||||||||
[insert address] |
Date | Available Amount | |||||||
[***] | [***] |
30/09/10-12:50:34 | LCPrinter-1386-000002 | 2 |
Instance Type and Transmission | ||||||||||||||||||||||||||||||||
Message Header | ||||||||||||||||||||||||||||||||
Message Text | ||||||||||||||||||||||||||||||||
DATE: | AVAILABLE AMOUNT: | |||||||||||||
OCTOBER 1, 2010 TO AND INCLUDING | ||||||||||||||
FEBRUARY 28, 2011 | USD15,000,000.00 | |||||||||||||
. | ||||||||||||||
MARCH 1,2011 TO AND INCLUDING | ||||||||||||||
MARCH 31, 2011 | USD13,000,0000.00 | |||||||||||||
. | ||||||||||||||
APRIL 1, 2011 TO AND INCLUDING | ||||||||||||||
APRIL 30, 2011 | USD11,000,000.00 | |||||||||||||
. | ||||||||||||||
MAY 1, 2011 | USD 0.00 |
30/09/10-12:50:34 | LCPrinter-1386-000003 | 3 |
Instance Type and Transmission | ||||||||||||||||||||||||||||||||
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Message Text | ||||||||||||||||||||||||||||||||
a. | A Cardholder's Debit Card information and PIN are confidential. |
b. | During the Transaction process, Carrier will employ an Internet PIN Pad with appropriate technology to maintain the confidentiality of the Cardholder's Debit Card information and PIN. |
c. | Carrier shall use appropriate technology when initiating every Debit Card Transaction so as to prevent the unauthorized recording or disclosure of a Cardholder's PIN. |
d. | Carrier shall require that each holder of a Debit Card enter his or her PIN on a Internet PIN Pad when initiating a PIN-based Internet Debit Card Transaction. |
• | Amount of the Debit Card Transaction, |
• | Date of the Debit Card Transaction, |
• | Truncated Debit Card number or another account number or code that uniquely identifies the Cardholder, |
• | Carrier's name, and |
• | Reference number or authorization number. |
CARRIER: | |||||||||||||||||
SPIRIT AIRLINES, INC. | |||||||||||||||||
By: | /s/ David Bradford | ||||||||||||||||
Title: VP Treasurer |
BANK: | |||||||||||||||||
U.S. BANK NATIONAL ASSOCIATION | |||||||||||||||||
By: /s/ Michael Kennedy | |||||||||||||||||
Title: Its Authorized Representative |
A. | A fee for all PIN-based Internet Debit Card Transactions equal to [***] of all Gross Card Sales during such period. "Gross Card Sales" means the total gross dollar amount of Debit Card sales transactions submitted by Carrier in an applicable period. In addition, Carrier shall be charged a [***] per item fee based upon Gross Card Transactions. "Gross Card Transactions" means the total gross number of transaction items, including sales and refunds submitted by Carrier in an applicable period. |
B. | Card Authorization costs, data capture costs, and equipment rental or purchase costs (to the extent Carrier requests such equipment) will be paid directly by Carrier. |
C. | Bank will assess a [***] handling fee for each and every Chargeback received by Bank during any 30 calendar day period in which there is at least a [***] ratio of Chargebacks received by Bank to net sales volume. Carrier acknowledges and agrees that such fees constitute reasonable compensation to Bank for the services provided by Bank in connection with the handling of Chargebacks, taking into account, among other things, the costs and expenses, whether direct or indirect, and whether out-of-pocket or attributable to an increased administrative burden, incurred or suffered by Bank as a result of such Chargeback activity. As an accommodation to Carrier, Bank will charge the handling fee specified herein only when the ratio of Chargebacks to net sales volume equals or exceeds [***] during any applicable period. |
D. | The rate specified in paragraph A for Gross Card Sales above may be adjusted from time to time to reflect and correspond to: (1) increases or decreases in applicable rates, fees and assessments established and levied by the applicable Card Associations and (2) increases or decreases in Bank's transaction processing costs. |
E. | Upon the upgrade of Bank's systems, Carrier and Bank shall endeavor to amend this Debit Card Transaction Fee Schedule to convert from the flat rate pricing to a pricing model in which interchange and assessments from the EFT Networks and the Credit Card Associations are passed through at cost and (i) a mark up as Bank's fee equal to [***], plus (ii) Acculynk's fee equal to [***] plus [***] for Acculynk's fee, each assessed on Gross Card Sales. |
1. | SCOPE OF THIS AGREEMENT |
• | scheduled passenger air transport over Carrier's lines and incidental air transport over the lines of other carriers consistent with industry interlining standards |
• | land or sea arrangements in connection with the purchase of tours from Carrier which include air transport as described above |
• | excess baggage and baggage freight charges |
• | private charters (where permitted by law) |
1 | Some terms are defined as they appear but for quick reference see the Glossary. Other parts of this Agreement are: |
• | Schedule I-Discount and Speed of Pay |
• | Schedule II-Operational and Other Procedures |
• | governmental fees and taxes relating to any of the above |
• | courier/package/air cargo services |
• | duty-free goods sold on Carrier's international flights |
• | membership fees (dues, initiation fees, and the like) for Carrier's passenger air club/lounge |
• | any fees related to Carrier's frequent flyer or similar program |
• | in-flight games/other non-gambling in-flight entertainment |
• | all government fees and taxes relating to any of the above |
(1) | Carrier Affiliate Group. The obligation to accept Cards under this Agreement applies to members of your Carrier Affiliate Group. You are financially and otherwise liable to |
us for ensuring the compliance by each such member with all the terms and conditions of this Agreement. |
(2) | Agents. You agree to use best efforts to cause each Agent to (a) accept Cards at all worldwide locations of Agent in the same manner and on the same terms and conditions |
as are applicable to your acceptance of Cards under this Agreement, and (b) comply with all other provisions of this Agreement with respect to Charges. |
2. | [***] |
3. | HOW TO ACCEPT THE CARD |
4. | SENDING CHARGES TO US |
5. | PAYMENT FOR CHARGES |
6. | FULL RECOURSE |
• | failure to obtain Authorization for a Charge in accordance with Schedule II, Section 4 |
• | splitting a Charge into two or more Charges to avoid obtaining Authorization |
• | failure to conform with our procedures and specifications when accepting, preparing or submitting a Charge or Credit, including failure to include all required information |
• | failure to submit to us (1) a Charge within 30 days of the date the Charge was made or (2) a Credit within 7 days of issuance |
• | failure to provide a substantive response within 25 days of your receipt from us of a Disputed Charge and resolve the dispute (as detailed in Section 9 of Schedule II), but in such case Full Recourse is only to the extent of the amount in dispute |
• | if, notwithstanding your response, the Cardmember withholds payment and we believe, in good faith, that he or she has the right under law to do so, but in such case Full Recourse is only to the extent of the amount in dispute |
• | if Cardmember disputes having made a Charge for which no signature was obtained on a Charge Record or where signature is only on file |
• | If Cardmember disputes the authenticity of his/her signature on a Charge Record and provides us with a signed statement to that effect |
• | failure to provide us with the original Charge or Credit Record or a copy within 25 days of your receipt of our request. |
• | receipt by us of disproportionately high number of (1) Disputed Charges regarding you or (2) Charges without Authorization due to downtime of your systems, in each instance relative to your prior history or industry standards. |
• | failure by you to comply with respect to a Charge with any other term or condition of this Agreement. |
7. | COMPLIANCE WITH LAWS |
• | fully authorized and licensed by all necessary domestic and international governmental, industry and other authorities to provide Air Transport and other goods and services covered by this Agreement, and |
• | in compliance with all local laws and regulations (including those relating to currency and foreign exchange) in each state, province and country where you fly or do business. |
8. | TERM AND TERMINATION |
9. | MISCELLANEOUS |
By: | /s/ John R. Severson | |||||||
(signature) | ||||||||
Title | Vice President & CFO | |||||||
(print or type) |
By: | /s/ David C. Horn | |||||||
(signature) | ||||||||
Name | David C. Horn | |||||||
(print or type) | ||||||||
Title | Pres. ESG | |||||||
(print or type) |
1. | GENERAL |
2. | PROCEDURES FOR CARD ACCEPTANCE |
• | the Card is being used within the valid dates embossed on the face of the Card |
• | the Card is not visibly altered or mutilated |
• | the Card bears the signature in the name of the person whose name is embossed on its face |
• | you have not been notified by us of the cancellation or other invalidity of the Card |
• | Authorization for the Charge has been received |
• | the Charge Record is created as described in Section 3 below and is signed by the Cardmember with what appears, after reasonable inspection, to be the same signature as that written on the space for signature on the Card. |
• | the Charge Record is created as required in Section 3 below and specifies if the Charge was made by mail, telephone, or automatic ticketing machine |
• | Authorization for the Charge is obtained. |
3. | CREATING CHARGE RECORDS |
• | our standard Record of Charge form |
• | the current Standard Credit Card Charge form approved by the Air Traffic Conference of America, ARC, or the International Air Transport Association |
• | any other record format we approve in advance |
• | Cardmember's name and passenger name (if not the Cardmember) |
• | Card account number and Card validity dates |
• | the date and the amount of the Charge approved by the Cardmember including any applicable taxes and fees |
• | the Authorization number, except as provided in Section 4.B below |
• | the ticket number and the origin and destination of each flight and class code or, if not a ticket, a description of the goods or services being purchased |
• | Carrier's and, if an Agent is involved, Agent's name and the location where Charge is being made |
• | Cardmember's signature (if an in-person Charge) |
• | If applicable, the election by Cardmember of Extended Payment |
• | such other information reasonably required by us, which may vary by country. |
4. | OBTAINING AUTHORIZATION |
5. | SUBMITTING CHARGES |
• | comply with the local American Express Format, as amended from time to time, which we will provide you |
• | include all information identified as "required" in such format and, if available, all information identified as "optional". The Transmission must include any other additional information that is or may be required by applicable law or that may be mutually agreed upon |
• | be sent to us at such location as we designate |
• | Charges incurred in each currency listed in Appendix A to this Schedule II. |
• | Charges incurred in any other currency (we are not obliged to accept such Charges but to the extent we do it is fully at our discretion and will not create any obligation to accept such Charges in the future) |
• | all Charges on Extended Payment |
• | all Charges for Related Services |
• | each batch may contain no more than 150 Charge Records |
• | each batch must be accompanied by a Summary Form on which must be prominently indicated the gross amount and number of Charges, the currency, Carrier's name, and your assigned service establishment number. |
6. | PAYING YOU FOR CHARGES |
7. | RECONCILING SUBMISSIONS |
• | the adjustments will be calculated in the currency in which the Charges were submitted |
• | if monies are due you, we will add the amount to subsequent payments due to you |
• | if monies are due to us, we will deduct the amount due from your bank account (if you have an electronic pay arrangement with us) or from payments due to you, or we will invoice you for it; if you request, we will provide you with substantiating documentation |
8. | REFUNDING CARDMEMBERS: CREDIT |
9. | DISPUTED CHARGES |
10. | CHARGEBACKS |
11. | ASSISTANCE RECOVERING CARDS |
Current List | Additional by Mutual Agreement (must be initialed by both parties) | |||||||||||||||||||||||||||||||||||||||||||||||||
Currency | Date | Carrier Initials | Amex Initials | |||||||||||||||||||||||||||||||||||||||||||||||
Argentine Pesos** | ||||||||||||||||||||||||||||||||||||||||||||||||||
Austrian Schillings | ||||||||||||||||||||||||||||||||||||||||||||||||||
Australian Dollars | ||||||||||||||||||||||||||||||||||||||||||||||||||
Belgian Francs | ||||||||||||||||||||||||||||||||||||||||||||||||||
Brazilian Reais** | ||||||||||||||||||||||||||||||||||||||||||||||||||
British Pounds Sterling | ||||||||||||||||||||||||||||||||||||||||||||||||||
Canadian Dollars | ||||||||||||||||||||||||||||||||||||||||||||||||||
Cyprus Pounds | ||||||||||||||||||||||||||||||||||||||||||||||||||
Danish Kroner | ||||||||||||||||||||||||||||||||||||||||||||||||||
Dutch Guilders | ||||||||||||||||||||||||||||||||||||||||||||||||||
Finnish Markka | ||||||||||||||||||||||||||||||||||||||||||||||||||
French Francs | ||||||||||||||||||||||||||||||||||||||||||||||||||
German Marks | ||||||||||||||||||||||||||||||||||||||||||||||||||
Greek Drachmas | ||||||||||||||||||||||||||||||||||||||||||||||||||
Hong Kong Dollars | ||||||||||||||||||||||||||||||||||||||||||||||||||
Indian Rupees | ||||||||||||||||||||||||||||||||||||||||||||||||||
Indonesian Rupiah | ||||||||||||||||||||||||||||||||||||||||||||||||||
Irish Punts | ||||||||||||||||||||||||||||||||||||||||||||||||||
Italian Lira | ||||||||||||||||||||||||||||||||||||||||||||||||||
Japanese Yen | ||||||||||||||||||||||||||||||||||||||||||||||||||
Korean Won | ||||||||||||||||||||||||||||||||||||||||||||||||||
Macau Patacas | ||||||||||||||||||||||||||||||||||||||||||||||||||
Malaysian Ringgit | ||||||||||||||||||||||||||||||||||||||||||||||||||
Maltese Pounds | ||||||||||||||||||||||||||||||||||||||||||||||||||
Mexican Pesos** | ||||||||||||||||||||||||||||||||||||||||||||||||||
New Taiwan Dollars | ||||||||||||||||||||||||||||||||||||||||||||||||||
New Zealand Dollars | ||||||||||||||||||||||||||||||||||||||||||||||||||
Norwegian Kroner | ||||||||||||||||||||||||||||||||||||||||||||||||||
Philippine Pesos | ||||||||||||||||||||||||||||||||||||||||||||||||||
Portuguese Escudos | ||||||||||||||||||||||||||||||||||||||||||||||||||
Singapore Dollars | ||||||||||||||||||||||||||||||||||||||||||||||||||
South African Rand | ||||||||||||||||||||||||||||||||||||||||||||||||||
Spanish Pesetas | ||||||||||||||||||||||||||||||||||||||||||||||||||
Swedish Kroner | ||||||||||||||||||||||||||||||||||||||||||||||||||
Swiss Francs | ||||||||||||||||||||||||||||||||||||||||||||||||||
Thai Baht | ||||||||||||||||||||||||||||||||||||||||||||||||||
U.S. Dollars | ||||||||||||||||||||||||||||||||||||||||||||||||||
Venezuelan Bolivars** |
* | Payment for these Charges will be made in the currency submitted or, as provided in Section 6.C of this Schedule II, in U.S. dollars. |
** | A Discount table, Speed of Pay and a mode of pay plans different from those set forth in Schedule I may apply in certain countries at certain times. Currently there are Argentina, Brazil, Mexico, and Venezuela but we reserve the right to modify this list. In addition, we reserve the right, with notice to you, to increase the Discount, lengthen the Speed of Pay, or cease electronic pay in any country where we determine there is unusual inflationary, political, foreign exchange or other risks beyond our control. If you do not agree with the changes we made for a given |
country, and if you and we are unable to reach agreement with respect to it within 30 days, either party will have the option to discontinue Card acceptance in that country on written notice to the other party of an additional 30 days (except that you may not so discontinue if the changes we offer to our terms are comparable or more favorable to the terms, or changes thereto, offered by other issuers of credit or charge cards you do business with in that country). If you wish to resume Card acceptance in a country so discontinued, we will review your request and if we agree, we will apply a Discount, Speed of Pay, and mode of pay plan we deem appropriate for such country. |
1. | Section 9A of the Terms and Conditions of the Agreement is deleted in its entirety and replaced with the following: |
2. | Sections 9A and 9 B of the Operational and Other procedures of he Agreement are deleted in their entirety and replaced with the following: |
3. | Sections 9 C and 9 D of the Operational and Other Procedures of Agreement shall become Sections 9 B and 9 C, respectively. |
4. | Effective December 31, 2002, any addendum, supplement, amendment or other instrument relating to marketing or advertising funds/programs [or alternative cash options] shall terminate. For calendar year 2003, Amex will instead make a cash payment to you, no later then August 1, 2003 in an amount equaling [***] of your 2002 Net Annual Worldwide Volume of Charges. Should the Agreement terminate for any reason before the end of 2003, you shall immediately reimburse us for the pro rata portion of such cash payment representing the duration of 2003 after such termination, calculated as follows: |
5. | The following provision is added to the Agreement: |
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC. | ||||||||
By: | /s/ Kelly Fisher | |||||||
Name: | Kelly Fisher | |||||||
Title: | Director, Account Development | |||||||
Date: | 10/31/02 |
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC. | ||||||||
By: | /s/ John Hopkinson | |||||||
Title: | Director, Account Development | |||||||
Date: | Aug. 28, 2003 |
January 1-31, 2000 Rent: | [***] | |||||||||||||
Lessee's Proportionate Share of January 1-31, 2000 Estimated Expenses (per Paragraph 28): | [***] | |||||||||||||
Sales Tax: | [***] | |||||||||||||
Security Deposit: | [***] | |||||||||||||
Partial Payment toward Lessee's Contribution (per Paragraph 37(e)) | [***] | |||||||||||||
Total | [***] |
Spirit Airlines, Inc. | ||||||||
1400 Lee Wagner Boulevard | ||||||||
Ft. Lauderdale, FL 33315 |
With a copy to: | Bill Bloom | |||||||
Holland & Knight LLP | ||||||||
701 Brickell Avenue | ||||||||
Suite #3000 | ||||||||
Miami, Florida 33131 |
Estimated Final Improvement Cost: | [***] | |||||||||||||
Lessor's Improvement Allowance: | [***] | |||||||||||||
Lessee's Contribution: | [***] | |||||||||||||
Portion of Lessee's Contribution paid to Lessor per Witnesseth Paragraph: | [***] | |||||||||||||
Estimated balance due to Escrow Account (per Paragraph 37(e)): | [***] |
LESSOR: SUNBEAM DEVELOPMENT CORPORATION | ||||||||||||||||||||
/s/ Frances Hernandez | By: | /s/ Andrew L. Ansin | ||||||||||||||||||
Witness Sign Name | Vice President | |||||||||||||||||||
Date | 6/17/99 | |||||||||||||||||||
/s/ Tomme J. Gomez | ||||||||||||||||||||
Witness Sign Name | ||||||||||||||||||||
LESSEE: SPIRIT AIRLINES, INC. | ||||||||||||||||||||
/s/ Tammy Micakovia | By: | /s/ John R. Severson | ||||||||||||||||||
Witness Sign Name | Title: | SVP & CFO | ||||||||||||||||||
Date | 6-11-99 | |||||||||||||||||||
/s/ Patricia M. Warwick | ||||||||||||||||||||
Witness Sign Name | ||||||||||||||||||||
ESCROW AGENT: MILLENE & IDEN | ||||||||||||||||||||
By: | /s/ Bruce Iden | |||||||||||||||||||
Title: | Partner | |||||||||||||||||||
Date | June 18, 1999 |
LESSOR: Sunbeam Properties, Inc. | ||||||||||||||||||||
/s/ Clara Pink | By: | /s/ Andrew L. Ansin | ||||||||||||||||||
Witness Sign Name | Its: | Vice President | ||||||||||||||||||
5/7/09 | ||||||||||||||||||||
Date | ||||||||||||||||||||
/s/ Lisette Garcia | ||||||||||||||||||||
Witness Sign Name |
LESSEE: Spirit Airlines, Inc. | ||||||||||||||||||||
/s/ Jake Filene | By: | /s/ David Lancelot | ||||||||||||||||||
Witness Sign Name | Its: | SVP & CFO | ||||||||||||||||||
4/30/09 | ||||||||||||||||||||
Date | ||||||||||||||||||||
/s/ Rene R. Fisher | ||||||||||||||||||||
Witness Sign Name |
Demo the wall and associated cabling per the attached plan |
Prep floor for carpet in CLASSROOM 1 and CLASSROOM 2 |
Remove interior windows as shown on the attached plan and replace openings with studs and drywall |
Install studs for 2 new below-the-ceiling walls with drywall on the south side of the southernmost wall and drywall on the north side of the northernmost wall (drywall will not be taped or painted in Phase 1) |
Install Miramar Park of Commerce standard carpet and vinyl base in CLASSROOM 1 and CLASSROOM 2 |
Remove exterior doors and window frames to allow for Lessee's installation of training equipment. Lessor will have doors and window frames reinstalled the same day. Date and timing of door and window frame removal and reinstallation to be coordinated with Lessee's scheduled installation of training equipment. |
complete walls begun in Phase 1 including providing sound insulation |
To accommodate the creation of CLASSROOM 1 and CLASSROOM 2: |
adjust existing 2 x 4 lay-in lights |
add light switches for each classroom and breakroom (each to be isolated) |
add quad outlets along new walls and one additional outlet on adjacent wall (One quad for every row of tables shown on floorplan). |
add a duplex outlet in each classroom ceiling for overhead projectors |
install a ceiling-mounted junction-box in CLASSROOM 1 and CLASSROOM 2 |
Install conduit for data cables next to every quad and duplex outlet in the classrooms and stub same in the ceiling with 90 degree bends |
adjust HVAC ductwork (no new HVAC units to be installed) |
adjust fire sprinklers |
paint new walls to match existing |
All else existing to remain including flooring in the BREAKROOM |
a. | Term. Extend the term of the Lease thru January 31, 2025. . |
b. | Rent. To reflect the extension described in this Lease Modification and Extension Agreement, the rent schedule is hereby extended and revised as shown below: |
c. | Bioterrorism. To the extent applicable, Lessee shall comply with the registration requirements of the Public Health Security and Preparedness and Response Act of 2002, and shall provide Lessor with written proof of such compliance not less than annually. |
d. | Move-Out Inspection. Lessee shall give written notice to Lessor not less than thirty (30) days prior to the end of the term of this Lease for the express purpose of arranging a meeting with Lessor for a joint inspection of the Premises. At such meeting, Lessee and Lessor shall make a list of all repairs that are required to be made by Lessee, if any. In the event (i) Lessee does not |
e. | Lessor's Maintenance. To clarify possible ambiguity in Lease Paragraph 25(b), Lessee and Lessor hereby agree that Lessor's maintenance obligations include exterior lighting and exterior loading areas and exclude any interior lighting or interior loading areas. |
f. | Exclusives. A number of lessees and owners at Miramar Park of Commerce have exclusive use rights. Accordingly, Lessee shall not use the Premises for any of the uses described in Exhibit "1". |
g. | Air Conditioning. [***]. |
LESSEE: | Spirit Airlines, Inc. |
March 1-31, 2014 Rent: | [***] | ||||
Lessee's Proportionate Share of March 1-31, 2014 | |||||
Estimated Expenses (per Paragraph 28): | [***] | ||||
Sales Tax: | [***] | ||||
[***] | |||||
Total: | [***] |
i. | Repairs or other work occasioned by fire, windstorm or other casualty of any nature or by the exercise of the right of eminent domain. Notwithstanding, uninsured repairs and replacements to landscaping and irrigation required due to fire, windstorm or other casualty shall be included in Lessee's Proportionate Share of Expenses. |
ii. | Leasing commissions, attorneys' fees, costs and disbursements and other expenses incurred in connection with (i) leasing negotiations, or (ii) with respect to disputes, settlements, compromises, collection actions or litigation with other tenants, concessionaires, occupants, prospective tenants, or mortgages or with vendors, agents, independent contractors and others, unless such settlements or other expenses relate to work done at the common area of the Complex and is otherwise not an excluded expense pursuant to this Paragraph 28(f). |
iii. | Renovating or otherwise improving or decorating, painting or redecorating interior space for tenants, concessionaires and other occupants of the Complex. |
iv. | Lessor's costs of electricity and other services and materials furnished to other tenants of the Complex. |
v. | Costs incurred by Lessor for construction, alteration. or remodeling of the Building, the Complex, or the Common Area or any costs in accordance with sound accounting principles consistently applied considered to be capital improvements or replacements, unless such capital improvements or replacements are done to lower operating costs, in which event such capital cost shall be amortized over the longest period allowed by Generally Accepted Accounting Principles (GAAP) to the extent of such savings. |
vi. | Depreciation or amortization, bad debts, or reserves of any kind, including replacement reserves and reserves for bad debts or lost rent. |
vii. | Interest, penalties, principal payments, late fees, default interest. and other costs and expenses with respect to debt or amortization payments on any mortgages on any part of the Building, and/or the Complex, rental under any ground lease or underlying leases, or payments in the nature of a return on or of equity of any kind. |
viii. | Costs incurred due to a violation by Lessor or any tenant of the terms and conditions of any lease. |
ix. | Fines, penalties and any other costs incurred due to any violation by Lessor or any tenant, of any governmental code, regulation, and/or rule, and/or the terms of a lease. |
x. | Fees and costs paid to subsidiaries or affiliates of Lessor for services on or to the Building or the Complex in excess of market rates. |
xi. | Lessor's general, corporate overhead, general administrative expenses, travel and entertaining, and administrative expenses not specifically incurred in the operation of the Building or Complex; any compensation paid to clerks, tenants or other persons in commercial concessions operated by Landlord. xii. Wages, salaries and other compensation (including employee benefits) of all personnel, to the extent that they are involved in leasing space in the Complex and of all management personnel who are above the grade of general manager, and of their respective |
xiii. | Rentals and other related expenses incurred in leasing air-conditioning systems, elevators or other equipment ordinarily considered to be of a capital nature. |
xiv. | All items and services for which any occupant or tenant of the Complex directly reimburses Lessor. |
xvi. | Charitable-type and political contributions of Lessor. |
xvii. | Cost and maintenance of paintings, sculptures or other art work leased and/or purchased for display in the Building or on the Complex. |
xviii. | Cost of office space occupied by Lessor, its agents, employees or independent contractors for leasing or for other purposes other than property management activities. |
xix. | Any other expense which under sound accounting principles consistently applied, would not be considered as reasonable management, security, maintenance or other operating expense. |
xx. | Any concessions including but not limited to rent abatement, construction of improvements or other use granted by Lessor in favor of any occupant or tenant of the Complex. |
xxi. | Any legal, accounting or other professional fees incurred by Lessor in connection with any mortgage indebtedness or underlying lease transactions including disputes between any persons holding such mortgage indebtedness or lease(s), refinancing costs, income or corporate taxes, capital gains taxes, inheritance taxes, taxes on rents or gross receipts (other than sales or use taxes), penalties and/or interest on late payments, consulting fees and personnel costs relating to capital expenditures, market study fees and costs, appraisals, structural repairs and replacements and any other fees, costs and expenses which are not applicable to the repair, replacement, maintenance, operation and/or security of the Complex. |
xxii. | The cost of any capital repairs, alterations, additions, changes, replacements and other capital cost items required by any law or governmental regulation imposed after the date of this Lease. |
(1) | Notice of Commencement. File a Notice of Commencement with Broward County and provide Lessor with a copy of same; |
(2) | Subcontracts. Enter into a contract with its contractor and/or other persons who will do the work and install the equipment referred to, which contract will provide, among other things, that said work shall be done and equipment installed in a good workmanlike manner in accordance with the plans and specifications previously approved and consents, authorizations, and licenses previously obtained and which contract shall provide that the contractor, subcontractor, or other person referred to above will look solely to Lessee for payment and will hold Lessor and the premises free from all liens and claims of all persons furnishing labor or materials therefor, and will also provide that similar waivers of the rights to file liens shall be obtained from any and all said contractors or materialmen. A copy of said contract, together with a duly executed waiver of the right to file liens executed by the contractor, subcontractor, or other persons referred above, shall be furnished to Lessor as a condition of Lessor approving such alterations or installations. |
(3) | Indemnification. Indemnify and save Lessor harmless against any and all bills for labor performed and equipment, fixture, and materials furnished to Lessee in connection with said work as aforesaid and against any and all liens, bills or claims therefore or against the premises and from and against all loss, damages, costs, expenses, suits, claims, and demands related to such work. |
(4) | Insurance. Lessee and/or all contractors which Lessee employs shall procure and maintain at Lessee's and/or Lessee's contractors' own cost and expense insurance against claims under Workman Compensation Acts with limits of [***] for Employers Liability Insurance. |
(5) | Inspections. Lessor shall have the right to place its supervisory personnel or representatives on the job during the course of construction, at Lessor's expense, for the purpose of making inspections and insuring that Lessee and Lessee's contractors, suppliers, and materialman comply with these conditions. |
(6) | Impact Fees. In the event Lessee's alterations to the Premises cause the City of Miramar to assess impact fees, Lessee shall be solely responsible for paying same. (In particular, Lessee acknowledges that the addition of plumbing fixtures may result in water and sewer impact fees being assessed by the City and that such fees shall be Lessee's sole responsibility to pay. |
• | Furniture |
• | Cabinetry |
• | Phone and data wiring |
• | Phone Switch |
• | Fire Alarm System |
• | Security System |
• | Computers and other equipment that is not attached to the Premises |
• | Shelving |
• | Racks |
• | Scissor gates at overhead doors |
• | Dock lights at overhead doors |
• | Generator and fuel tank(s) |
• | UPS and other backup power systems |
NKS-A320 FAMILY-PA | i |
CLAUSES | TITLE | |||||||||||||||||||
0 - | DEFINITIONS | 2 | ||||||||||||||||||
1 - | SALE AND PURCHASE | 9 | ||||||||||||||||||
2 - | SPECIFICATION | 10 | ||||||||||||||||||
3 - | PRICE | 12 | ||||||||||||||||||
4 - | PRICE REVISION | 16 | ||||||||||||||||||
5 - | PAYMENT TERMS | 17 | ||||||||||||||||||
7 - | CERTIFICATION | 21 | ||||||||||||||||||
8 - | TECHNICAL ACCEPTANCE | 23 | ||||||||||||||||||
9 - | DELIVERY | 25 | ||||||||||||||||||
10 - | EXCUSABLE DELAY AND TOTAL LOSS | 27 | ||||||||||||||||||
11 - | INEXCUSABLE DELAY | 29 | ||||||||||||||||||
12 - | WARRANTIES AND SERVICE LIFE POLICY | 31 | ||||||||||||||||||
13 - | PATENT AND COPYRIGHT INDEMNITY | 48 | ||||||||||||||||||
14 | TECHNICAL DATA | 51 | ||||||||||||||||||
15 - | SELLER REPRESENTATIVES | 56 | ||||||||||||||||||
16 - | TRAINING AND TRAINING AIDS | 59 | ||||||||||||||||||
17 | SUPPLIER PRODUCT SUPPORT | 76 | ||||||||||||||||||
18 - | BUYER FURNISHED EQUIPMENT | 78 | ||||||||||||||||||
19 - | INDEMNITIES AND INSURANCE | 82 | ||||||||||||||||||
20 - | ASSIGNMENTS AND TRANSFERS | 85 | ||||||||||||||||||
21 | TERMINATION | 87 |
NKS-A320 FAMILY-PA | ii |
22 - | MISCELLANEOUS PROVISIONS | 92 | ||||||||||||||||||
23. | CERTAIN REPRESENTATIONS OF THE PARTIES | 97 |
Spirit Airlines-A320 FAMILY - PA | iii |
EXHIBITS | ||||||||
EXHIBIT A-1 | A319 STANDARD SPECIFICATION | |||||||
EXHIBIT A-2 | A320 STANDARD SPECIFICATION | |||||||
EXHIBIT A-3 | A321 STANDARD SPECIFICATION | |||||||
EXHIBIT A-4 | SCN's | |||||||
EXHIBIT B-1 | A319 SCN FORM | |||||||
A320 SCN FORM | ||||||||
A321 SCN FORM | ||||||||
EXHIBIT B-2 | A319 MSCN FORM | |||||||
A320 MSCN FORM | ||||||||
A321 MSCN FORM | ||||||||
EXHIBIT C | SELLER SERVICE LIFE POLICY | |||||||
EXHIBIT D | CERTIFICATE OF ACCEPTANCE | |||||||
EXHIBIT E | BILL OF SALE | |||||||
EXHIBIT F | TECHNICAL DATA AND SOFTWARE SERVICES | |||||||
APPENDIX 1 TO EXHIBIT F | LICENSE FOR USE OF SOFTWARE | |||||||
APPENDIX 2 TO EXHIBIT F | LICENSE FOR USE OF AIRBUS ON-LINE SERVICES | |||||||
ATTACHMENT 1 TO APPENDIX 2 TO EXHIBIT F | AIRBUS ON LINE SERVICES | |||||||
EXHIBIT G | SELLER PRICE REVISION FORMULA | |||||||
EXHIBIT H | PROPULSION SYSTEMS PRICE REVISION FORMULA |
Spirit Airlines-A320 FAMILY - PA | iv |
NKS-A320 FAMILY-PA - Draft 4 | 1 |
Spirit Airlines - A320 FAMILY - PA | 2 |
Spirit Airlines - A320 FAMILY - PA | 3 |
(1) | Airbus France S.A.S., whose principal office is at |
316, route de Bayonne |
31060 Toulouse |
France |
(2) | Airbus UK Ltd, whose principal office is at |
Warwick House |
PO Box 87 |
Farnborough Aerospace Centre |
Farnborough |
Hants GU14 6YU |
England |
(3) | Airbus Espana S.L., whose principal office is at |
404 Avenida de Aragon |
28022 Madrid |
Spain |
(4) | Airbus Deutschland GmbH, whose principal office is at |
Kreetslag 10 |
Postfach 95 01 09 |
21111 Hamburg |
Germany |
Spirit Airlines - A320 FAMILY - PA | 4 |
Spirit Airlines - A320 FAMILY - PA | 5 |
Spirit Airlines - A320 FAMILY - PA | 6 |
Spirit Airlines - A320 FAMILY - PA | 7 |
Spirit Airlines - A320 FAMILY - PA | 8 |
1 - | SALE AND PURCHASE |
Spirit Airlines - A320 FAMILY - PA | 9 |
2 - | SPECIFICATION |
2.1 | Specification Documents |
2.1.1 | The A319 Aircraft will be manufactured in accordance with the A319 Specification. The A320 Aircraft will be manufactured in accordance with the A320 Specification. The A321 Aircraft will be manufactured in accordance with the A321 Specification. |
2.1.2 | Specification Change Notice |
2.1.3 | Manufacturer Specification Change Notice |
2.1.4 | Development Changes |
2.2 | Propulsion Systems |
Spirit Airlines - A320 FAMILY - PA | 10 |
2.3 | Customization Milestones Chart |
Spirit Airlines - A320 FAMILY - PA | 11 |
3 - | PRICE |
3.1 | Base Price of the Aircraft |
3.1.1 | The Base Price of each applicable Aircraft is the sum of: |
(i) | the Base Price of the applicable Airframe |
(ii) | the Base Price of the applicable Propulsion Systems for the Aircraft. |
3.1.1.2 | Base Price of the Airframe |
3.1.1.2.1 | A319 Airframe |
(i) | the Base Price of the A319 Airframe , as defined in the A319 Standard Specification (excluding Buyer Furnished Equipment and SCNs), at delivery conditions prevailing in January 2003, is: |
(ii) | the Base Price of any and all SCNs for the A319 Aircraft mutually agreed upon prior to the signature of this Agreement and set forth in Exhibit B-1 hereto, at delivery conditions prevailing in January 2003, is: |
3.1.1.2.2 | A320 Airframe |
(i) | the Base Price of the A320 Airframe , as defined in the A320 Standard Specification (excluding Buyer Furnished Equipment and SCNs), at delivery conditions prevailing in January 2003, is: |
(ii) | the Base Price of any and all SCNs for the A320 Aircraft mutually agreed upon prior to the signature of this Agreement and set forth in Exhibit B-1 hereto, including [***], is: |
3.1.1.2.3 | A321 Airframe |
Spirit Airlines - A320 FAMILY - PA | 12 |
The Base Price of the A321 Airframe is the sum of the Base Prices set forth below in (i) and (ii): |
(i) | the Base Price of the A321 Airframe, as defined in the A321 Standard Specification (excluding Buyer Furnished Equipment and SCNs), at delivery conditions prevailing in January 2003, is: |
(ii) | the Base Price of any and all SCNs for the A321 Aircraft mutually agreed upon prior to the signature of this Agreement and set forth in Exhibit B-1 hereto, at delivery conditions prevailing in January 2003, is: |
3.1.1.3 | Base Price of the Propulsion Systems |
3.1.1.3.1 | A319 Propulsion Systems |
The Base Price of the IAE V2524-A5 Propulsion Systems, at delivery conditions prevailing in January 2003, is: |
[***] |
Said Base Price has been calculated from the Reference Price for the A319 Propulsion Systems indicated by International Aero Engines of [***] in accordance with delivery conditions prevailing in January 2001. |
3.1.1.3.2 | A320 Propulsion Systems |
The Base Price of the Propulsion Systems IAEV2527-A5, at delivery conditions prevailing in January 2003, is: |
[***] |
Said Base Price has been calculated from the Reference Price for the A320 Propulsion Systems indicated by International Aero Engines of [***] in accordance with delivery conditions January 2001. |
3.1.1.3.3 | A321 Propulsion Systems |
The Base Price of the IAEV2533-A5 Propulsion Systems for the A321 Aircraft, at delivery conditions prevailing in January 2003, is: |
[***] |
Said Base Price has been calculated from the Reference Price for the A321 Propulsion Systems indicated by International Aero Engines of US $[***] in accordance with delivery conditions January 2001. |
Spirit Airlines - A320 FAMILY - PA | 13 |
3.2 | Final Contract Price |
3.2.1 | The Final Contract Price of an A319 Aircraft will be the sum of: |
(i) | the Base Price of the A319 Airframe, as adjusted to the Delivery Date of such A319 Aircraft in accordance with the Seller Price Revision Formula; |
(ii) | the price of any SCNs for the A319 Aircraft entered into after the date of signature of this Agreement, as adjusted to the Delivery Date of such A319 |
(iii) | the Reference Price of the A319 Propulsion Systems constituting a part of such A319 Aircraft, as adjusted to the Delivery Date of such A319 Aircraft in accordance with the Propulsion Systems Price Revision Formula; and |
(iv) | any other amount resulting from any other provisions of this Agreement and/or any other written agreement between the Buyer and the Seller relating to the A319 Aircraft. |
3.2.2 | The Final Contract Price of an A320 Aircraft will be the sum of: |
(i) | the Base Price of the A320 Airframe, as adjusted to the Delivery Date of such A320 Aircraft in accordance with the Seller Price Revision Formula; |
(ii) | the price of any SCNs for the A320 Aircraft entered into after the date of signature of this Agreement, as adjusted to the Delivery Date of such A320 |
(iii) | the Reference Price of the A320 Propulsion Systems constituting a part of such A320 Aircraft, as adjusted to the Delivery Date of such A320 Aircraft in accordance with the Propulsion Systems Price Revision Formula; and |
(iv) | any other amount resulting from any other provisions of this Agreement and/or any other written agreement between the Buyer and the Seller relating to the A320 Aircraft. |
3.2.3 | The Final Contract Price of an A321 Aircraft will be the sum of |
(i) | the Base Price of the A321 Airframe, as adjusted to the Delivery Date of such A321 Aircraft in accordance with the Seller Price Revision Formula; |
(ii) | the price of any SCNs for the A321 Aircraft entered into after the date of signature of this Agreement, as adjusted to the Delivery Date of such A321 |
(iii) | the Reference Price of the A321 Propulsion Systems constituting a part of such A321 Aircraft, as adjusted to the Delivery Date of such A321 Aircraft in accordance with the Propulsion Systems Price Revision Formula; and |
(iv) | any other amount resulting from any other provisions of this Agreement and/or any other written agreement between the Buyer and the Seller relating to the A321 Aircraft. |
3.3 | Taxes, Duties and Imposts |
3.3.1 | [***] |
Spirit Airlines - A320 FAMILY - PA | 14 |
3.3.2 | [***] |
3.3.3 | [***] |
3.3.4 | [***] |
Spirit Airlines - A320 FAMILY - PA | 15 |
4 - | PRICE REVISION |
4.1 | Seller Price Revision Formula |
4.2 | Propulsion Systems Price Revision |
4.2.2 | Modification of Propulsion Systems Reference Price and Propulsion Systems Price Revision Formula |
Spirit Airlines - A320 FAMILY - PA | 16 |
5 - | PAYMENT TERMS |
5.1 | The Buyer will pay the Predelivery Payments, the Balance of the Final Contract Price and any other amount due hereunder in immediately available funds in United States dollars to Credit Lyonnais, New York Branch, for transfer by Credit Lyonnais to the Seller's account with Credit Lyonnais at 1, Esplanade Compans Caffarelli, 31000 Toulouse, France, or to such other account as may be designated by the Seller in writing to the Buyer. |
5.2 | Predelivery Payments |
5.2.1 | Predelivery Payments will be paid by the Buyer to the Seller for each Aircraft. Predelivery payments are nonrefundable (although amounts equal to Predelivery Payments may be paid to the Buyer under Clause 10.4 and 11.3 of this Agreement). The aggregate Predelivery Payment amount is [***] of the Predelivery Payment Reference Price defined below in Clause 5.2.2. |
5.2.2 | The Predelivery Payment Reference Price is defined as: |
Spirit Airlines - A320 FAMILY - PA | 17 |
5.2.3 | Predelivery Payments will be paid according to the following schedule. |
Payment Date | Percentage of Predelivery Payment Reference Price | |||||||||||||
**** | **** | **** |
5.2.4 | **** The Seller will be under no obligation to segregate any Predelivery Payment, or any amount equal thereto, from the Seller's funds generally. |
5.2.5 | SCN Predelivery Payment |
Spirit Airlines - A320 FAMILY - PA | 18 |
5.3 | Initial Payment |
5.4 | Payment of Balance of the Final Contract Price |
5.5 | Payment Setoff |
5.6 | Overdue Payments |
5.7 | Proprietary Interest |
5.8 | Payment in Full |
Spirit Airlines - A320 FAMILY - PA | 19 |
6 - | INSPECTION |
6.1 | Inspection Procedures |
6.1.1 | All work to be carried out on the Aircraft and all materials and parts thereof will be open to inspection during business hours by duly authorized representatives of the Buyer or its designee at the respective works of the Associated Contractors and, subject to coordination and agreement with their relevant subcontractors, at the works of such respective subcontractors. The representatives will have access to such relevant technical data as are 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 on with the Buyer before any inspection. |
6.1.2 | All inspections, examinations and discussions with the Seller's, the Associated Contractors' or their respective subcontractors' engineering or other personnel by the Buyer and its representatives will be performed in such a manner as not to delay or hinder either 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. |
6.2 | Representatives |
Spirit Airlines - A320 FAMILY - PA | 20 |
7 - | CERTIFICATION |
7.1 | Type Certification |
7.2 | Export Certificate of Airworthiness |
7.3 | Specification Changes Before Delivery |
7.3.1 | If, any time before the date on which the Aircraft is Ready for Delivery, any law, rule or regulation is enacted, promulgated, becomes effective and/or an interpretation of any law, rule or regulation is issued by the EASA that requires any change to the Specification for the purposes of obtaining the Export Certificate of Airworthiness (a "Change in Law"), the Seller will make the required modification and the parties hereto will sign an SCN. |
7.3.2 | The Seller will as far as practicable, but at its sole discretion, take into account the information available to it concerning any proposed law, rule or regulation or interpretation that could become a Change in Law, in order to minimize the costs of changes to the Specification as a result of such proposed law, regulation or interpretation becoming effective. |
Spirit Airlines - A320 FAMILY - PA | 21 |
7.3.3 | ***** |
7.3.4 | Notwithstanding the provisions of Clauses 7.3.3 (i).and (ii), if a Change in Law relates to an item of BFE or to the Propulsion Systems (and, in particular, to engine accessories, quick engine change units or thrust reversers) the costs will be borne in accordance with such arrangements as may be made separately between the Buyer and the manufacturer of the BFE or the Propulsion Systems, as applicable, and the Seller will have no obligation with respect thereto. |
7.4 | Specification Changes After Delivery |
Spirit Airlines - A320 FAMILY - PA | 22 |
8 - | TECHNICAL ACCEPTANCE |
8.1 | Technical Acceptance Process |
8.1.1 | Prior to Delivery, the Aircraft will undergo a technical acceptance process developed by the Seller (the "Technical Acceptance Process"). Successful completion of the Technical Acceptance Process will demonstrate the satisfactory functioning of the Aircraft and will be deemed to demonstrate compliance with the applicable Specification. Should the Aircraft fail to complete the Technical Acceptance Process satisfactorily, the Seller will without hindrance from the Buyer be entitled to carry out any necessary changes and, as soon as practicable thereafter, resubmit the Aircraft to the Technical Acceptance Process. |
8.1.2 | The Technical Acceptance Process Will |
(i) | start on a date notified by the Seller to the Buyer at least ten (10) Working Days in advance, |
(ii) | take place at the Delivery Location. |
(iii) | be carried out by the personnel of the Seller, subject to 8.2.2 below, |
(iv) | include a technical acceptance flight and |
(v) | normally be expected to conclude in five (5) Working Days. |
8.2 | Buyer's Attendance |
8.2.1 | The Buyer or its permitted assignee is entitled to attend and observe the Technical Acceptance Process. |
8.2.2 | If the Buyer or its permitted assignee attends the Technical Acceptance Process, the Buyer |
(i) | will comply with the reasonable requirements of the Seller, with the intention of completing the Technical Acceptance Process within five (5) Working Days, and |
(ii) | may have a maximum of four (4) of its representatives (no more than three (3) of whom will have access to the cockpit at any one time) accompany the Seller's representatives on the technical acceptance flight, during which the Buyer's representatives will comply with the instructions of the Seller's representatives. |
8.2.3 | If the Buyer does not attend (other than as a result of Seller's failure to notify the Buyer as required in Clause 8.1.2(i)) or fails to cooperate in the Technical Acceptance Process, the Seller will be entitled to complete the Technical |
Spirit Airlines - A320 FAMILY - PA | 23 |
Acceptance Process in compliance with Clause 8.1.1., without the Buyer's attendance, and the Buyer will be deemed to have accepted that the Aircraft is functioning satisfactorily and is in compliance with the Specification, in all respects. |
8.3 | Certificate of Acceptance |
8.4 | Finality of Acceptance |
8.5 | Aircraft Utilization |
Spirit Airlines - A320 FAMILY - PA | 24 |
9 - | DELIVERY |
9.1 | Delivery Schedule |
9.1.1 | Subject to Clauses 2, 7, 8, 10 and 18, the Seller will have the Firm Aircraft Ready for Delivery at the Delivery Location within the following months (each a "Scheduled Delivery Month"). |
Quantity of A319 Firm Aircraft | Month/Year of Delivery | |||||||
1 Aircraft | ***** | |||||||
1 Aircraft | ***** | |||||||
2 Aircraft | ***** | |||||||
2 Aircraft | ***** | |||||||
2 Aircraft | ***** | |||||||
1 Aircraft | ***** | |||||||
1 Aircraft | ***** | |||||||
1 Aircraft | ***** |
Quantity of A321 Firm Aircraft | Month/Year of Delivery | |||||||
1 Aircraft | ***** | |||||||
1 Aircraft | ***** | |||||||
2 Aircraft | ***** |
9.1.2. | Delivery Notices |
9.2 | The Buyer will send its representatives to the Delivery Location to take Delivery within seven (7) Working Days after the date on which the Aircraft is Ready for Delivery. |
9.2.1 | The Seller will transfer title to the Aircraft to the Buyer free and clear of all liens, charges, hypothecations, mortgages and other encumbrances, provided that the Balance of the Final Contract Price has been paid by the Buyer pursuant to Clause 5.4 and that the Certificate of Acceptance bas been signed and delivered to the Seller pursuant to Clause 8.3. The Seller will provide the Buyer with a bill of sale in the form of Exhibit E hereto and/or such other documentation confirming transfer of title and receipt of the Final Contract Price as may reasonably be requested by the Buyer. Property interest in and risk of loss of or damage to the Aircraft will also be transferred to the Buyer on Delivery. |
9.2.2 | If, when the Aircraft is Ready for Delivery, the Buyer falls to (i) deliver the signed Certificate of Acceptance to the Seller on or before the Delivery Date, or (ii) pay the Balance of the Final Contract Price for the Aircraft to the Seller on the Delivery Date, then the Buyer will be deemed to have rejected Delivery without warrant when the Aircraft was duly tendered to the Buyer hereunder. If the Buyer rejects the Aircraft without warrant the Seller will retain title to the Aircraft and the Buyer will indemnify and hold the Seller harmless against any and all actual costs, resulting from the Buyer's rejection. These rights of the Seller will be in addition to the Seller's other rights and remedies in this Agreement. It is understood that, while the Seller will use commercially reasonable efforts to store, park; or otherwise protect the Aircraft, the Seller will in no event be liable for any loss or damage to the Aircraft following Buyer's rejection. |
Spirit Airlines - A320 FAMILY - PA | 25 |
9.3 | Flyaway |
9.3.1 | The Buyer and the Seller will cooperate to obtain any licenses that may be required by the relevant Aviation Authority for the purpose of exporting the Aircraft. |
9.3.2 | All expenses of, or connected with, flying the Aircraft from the Delivery Location after Delivery will be borne by the Buyer. The Buyer will make direct arrangements with the supplying companies for the fuel and oil required for all post-Delivery flights. |
Spirit Airlines - A320 FAMILY - PA | 26 |
10 - | EXCUSABLE DELAY AND TOTAL LOSS |
10.1 | Scope of Excusable Delay |
10.2 | Consequences of Excusable Delay |
10.2.1 | If an Excusable Delay occurs the Seller will |
(i) | notify the Buyer of such Excusable Delay as soon as practicable after becoming aware of the same; |
(ii) | not be deemed to be in default in the performance of its obligations hereunder as a result of such Excusable Delay; |
(iii) | not be responsible for any damages arising from or in connection with such Excusable Delay suffered or incurred by the Buyer; |
Spirit Airlines - A320 FAMILY - PA | 27 |
(iv) | as soon as practicable after the removal of the cause of the delay resume performance of its obligations under this Agreement and in particular will notify the Buyer of the revised Scheduled Delivery Month. |
10.3 | Termination on Excusable Delay |
10.3.1 | ***** |
10.3.2 | ***** |
10.3.3 | ***** |
10.4 | Total Loss, Destruction or Damage |
(i) | the Buyer notifies the Seller within one (1) month of the date of receipt of the Seller's notice that it desires the Seller to provide a replacement aircraft during the month quoted in the Seller's notice; and |
(ii) | the parties execute an amendment to this Agreement recording the variation in the Scheduled Delivery Month. |
10.6 | REMEDIES |
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11 - | INEXCUSABLE DELAY |
11.1 | Liquidated Damages |
11.2 | Renegotiation |
11.3 | Termination |
11.4 | Setoff Payments |
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11.5 | REMEDIES |
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12 - | WARRANTIES AND SERVICE LIFE POLICY |
12.1 | WARRANTY |
12.1.1 | Nature of Warranty |
(i) | in material, |
(ii) | in workmanship, including, without limitation, processes of manufacture, |
(iii) | in design (including, without limitation, selection of materials) having regard to the state of the art at the date of such design, and |
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(iv) | arising from failure to conform to the Specification, except as to those portions of the Specification that are expressly stated in the Specification to be estimates or approximations or design aims. |
For the purposes of this Agreement, the term "Warranted Part" will mean any Seller proprietary component, equipment, accessory or part, which is installed on an Aircraft at Delivery and (a) which is manufactured to the detail design of the Seller or a subcontractor of the Seller and (b) which bears a part number of the Seller at the time of Delivery. |
12.1.2 | Exceptions |
The warranties set forth in Clause 12.1.1 will not apply to Buyer Furnished Equipment, Propulsion Systems, or to any component, accessory, equipment or part purchased by the Buyer that is not a Warranted Part, provided, however, that: |
(i) | any defect in the Seller's workmanship in respect of the installation of such items in the Aircraft, including any failure by the Seller to conform to the installation instructions of the manufacturers of such items that invalidates any applicable warranty from such manufacturers, will constitute a defect in workmanship for the purpose of this Clause 12.1 and be covered by the warranty set forth in Clause 12.1.1(ii), and |
(ii) | any defect inherent in the Seller's design of the installation, considering the state of the art at the date of such design, that impairs the use of such items will constitute a defect in design for the purposes of this Clause 12.1 and be covered by the warranty set forth in Clause 12.1.1(iii). |
12.1.3 | Warranty Periods |
The warranties described in Clauses 12.1.1 and 12.1.2 hereinabove will be limited to those defects that become apparent within [***] after Delivery of the affected Aircraft, (the "Warranty Period"). |
12.1.4 | Limitations of Warranty |
12.1.4.1 | The Buyer's remedy and the Seller's obligation and liability under Clauses 12.1.1 and 12.1.2 hereinabove are limited to, at the Seller's expense and option, the repair, replacement or correction of, or the supply of modification kits rectifying the defect to any defective Warranted Part. However, the Seller may furnish a credit to the Buyer for the future purchase of goods and services (not including Aircraft) equal to the price at which the Buyer is then entitled to acquire a replacement for the defective Warranted Part. Unless otherwise agreed, any replacement part shall have no fewer cycles, hours, or less calendar time remaining or be of a lesser modification status than the replaced Warranted Part would have had in the absence of the relevant defect. |
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12.1.4.2 | If the Seller corrects a defect covered by Clause 12.1.1(iii) that becomes apparent within the Warranty Period set forth in Clause 12.1.3, on the Buyer's written request the Seller will correct any such defect in any Aircraft that has not already been delivered to the Buyer. The Seller will not be responsible nor deemed to be in default on account of any reasonable delay in Delivery of any Aircraft or otherwise, in respect of performance of this Agreement, due to the Seller's undertaking to make such correction and, 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. The parties shall use all reasonable efforts to minimize any delays. |
12.1.5 | Cost of Inspection |
12.1.5.1 | In addition to the remedies set forth in Clauses 12.1.4.1 at the rates set forth in Clause 12.1.8(v) (b) and 12.1.4.2, the Seller will reimburse the direct labor costs spent by the Buyer in performing inspections of the Aircraft that are conducted: |
(i) | to determine whether a defect exists in any Warranted Part within the Warranty Period or |
(ii) | pending the Seller's provision of a corrective technical solution. |
12.1.5.2 | The above commitment is subject to the following conditions: |
(i) | the inspections are not performed during a scheduled maintenance check as recommended by the Seller's Maintenance Planning Document; |
(ii) | the labor rate for the reimbursements will be the labor rate defined in Clause 12.1.8(v)(b), and |
(iii) | the hours used to determine such reimbursement will not exceed the Seller's reasonable estimate of the hours required for such inspections. |
12.1.6 | Warranty Claim Requirements |
The Buyer's remedy and the Seller's obligation and liability under this Clause 12.1, with respect to each claimed defect, are subject to the following conditions precedent: |
(i) | the defect becomes apparent within the Warranty Period; |
(ii) | the Buyer submits to the Seller evidence reasonably satisfactory to the Seller that the claimed defect is due to a matter covered, under the provisions of this Clause 12.1 |
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(iii) | the Buyer returns the Warranted Part claimed to be defective to the repair facilities designated by the Seller as soon as practicable, unless the Buyer elects to repair a defective Warranted Part in accordance with the provisions of Clause 12.1.8, |
(iv) | the Seller's receives a "Warranty Claim" substantially complying with the provisions of Clause 12.1.7(v) below. |
12.1.7 | Warranty Administration |
(i) | Claim Determination |
(ii) | Transportation Costs |
(iii) | Return of an Aircraft |
(iv) | On-Aircraft Work by the Seller |
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(v) | Warranty Claim Substantiation |
(a) | Description of the defect and action taken, if any |
(b) | Date of incident and/or removal |
(c) | Description of the Warranted Part claimed to be defective |
(d) | Part number |
(e) | Serial number (if applicable) |
(f) | Position on Aircraft, according to Catalog Sequence Number (CSN) of the Illustrated Parts Catalog or Component Maintenance Manual or Structural Repair Manual (as such documents are defined in Clause 14 and Exhibit F hereto), as applicable |
(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 appearance of defect |
(i) | Manufacturers serial number (MSN) of the Aircraft and/or its registration number |
(j) | Aircraft total flying hours and/or number of landings at the date of appearance of defect |
(k) | Claim number |
(l) | Date of claim |
(m) | Date of delivery of an Aircraft or Warranted Part to the Buyer |
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Warranty Claims are to be addressed as follows: |
AIRBUS |
CUSTOMER SERVICES DIRECTORATE |
WARRANTY ADMINISTRATION |
ROND-POINT MAURICE BELLONTE |
B.P. 33 |
F-31707 BLAGNAC CEDEX |
FRANCE |
(vi) | Replacements |
(vii) | Rejection |
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(viii) | Inspection |
12.1.8 | In-house Warranty |
(i) | Authorization |
(ii) | Conditions of Authorization |
(a) | if the relevant facilities and personnel are certified and/or qualified under applicable FAA regulations to perform the subject repairs; |
(b) | provided that repairs are to be performed in accordance with the Seller's written instructions set forth in applicable Technical Data; and |
(c) | only to the extent specified by the Seller, or, in the absence of the Seller's specifying, to the extent reasonably necessary to correct the defect, in accordance with the standards set forth in Clause l2.1.11. |
(iii) | Seller's Rights |
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(iv) | In-house Warranty Claim Substantiation |
(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, |
- | related Seller's or third party's invoices (if any), |
- | total price of parts |
(c) | detailed number of labor hours |
(d) | In-house Warranty Labor Rate (defined below in Clause 12.1.8(v)(b)), and |
(e) | total claim value |
(v) | Credit |
(a) | To determine direct labor costs, only the man-hours spent on removal and re-installation, disassembly, inspection, repair, reassembly, and final inspection and test (including flight tests if flight tests are necessary to complete a repair under the In-house Warranty) of the Warranted Part alone will be counted. The hours required for maintenance work concurrently being carried out on the Aircraft or Warranted part, if any, will not be included. |
(b) | The hours counted as set forth above will be multiplied by the labor rate below, which is deemed to represent the Buyer's composite average hourly labor rate (excluding all fringe benefits, premium time allowances, social security charges, business taxes and similar items) paid to the Buyer's employees or to a third party that the Buyer has authorized to perform the |
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repair, whose jobs, in both cases, are directly related to the performance of the repair. This labor rate is [***] at economic conditions prevailing in January 2003 (the "In-house Warranty Labor Rate"). |
The In-house Warranty Labor Rate is subject to adjustment .annually by multiplying by the ratio ECIn/ECIb. For the purposes of this Clause 12.1.8(v) only, ECIn is equal to the Labor Index defined in the Seller Price Revision Formula hereto for January of the year in which the hours are spent and ECIb is equal to such Labor Index for January 2003. |
(c) | Direct material costs are determined by the prices at which the Buyer acquired such material, excluding any parts and materials used for overhaul furnished free of charge by the Seller. |
(vi) | Limitation on Credit |
(vii) | Scrapped Material |
(viii) | DISCLAIMER OF SELLER LIABILITY FOR BUYER'S REPAIR |
THE SELLER WILL NOT BE LIABLE FOR ANY RIGHT, CLAIM OR REMEDY, AND THE BUYER WILL INDEMNIFY THE SELLER AGAINST |
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THE CLAIMS OF ANY THIRD PARTIES FOR LOSSES DUE TO ANY DEFECT, NONCONFORMANCE OR PROBLEM OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH ANY REPAIR OF WARRANTED PARTS UNDERTAKEN BY THE BUYER UNDER THIS CLAUSE 12.1.8 OR ANY OTHER ACTIONS UNDERTAKEN BY THE BUYER UNDER THIS CLAUSE 12.1.8, WHETHER SUCH CLAIM IS ASSERTED IN CONTRACT OR IN TORT, OR IS PREMISED ON ALLEGED, ACTUAL, IMPUTED, ORDINARY OR INTENTIONAL ACTS OR OMISSIONS OF THE BUYER OR THE SELLERUNLESS SUCH CLAIMS ARE BASED SOLELY ON THE INACCURACY OF WRITTEN INSTRUCTIONS OR DESIGNS SUPPLIED BY THE SELLER AND STRICTLY FOLLOWED BY THE BUYER. |
12.1.9 | Warranty Transferability |
12.1.10 | Warranty for Corrected, Replacement or Repaired Warranted Parts |
12.1.11 | Standard, Airline Operation - Normal Wear and Tear |
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(i) | any Aircraft or component, equipment, accessory or part thereof that has been repaired, altered or modified after Delivery in a manner other than that approved by the Seller; |
(ii) | any Aircraft or component, equipment, accessory or part thereof that has been operated in what the Buyer knew, or in the exercise of due care, should have known, was in a damaged state; or |
(iii) | any component, equipment, accessory or part from which all identifying marks such as the trademark, trade name, part or serial number have been removed, such that the origin of the relevant part cannot reasonably be determined, |
except that if, in each case (other than in respect of (iii) above) the Buyer submits evidence reasonably acceptable to the Seller that the defect for which warranty coverage is sought did not arise as a result of, or was not materially worsened by, such causes. |
12.2 | SELLER SERVICE LIFE POLICY |
12.2.1 | Scope and Definitions |
(i) | "Item" means any of the Seller components, equipment, accessories or parts listed in Exhibit C hereto that are installed on an Aircraft at any time during the period of effectiveness of the Service Life Policy as defined below in Clause 12.2.2. |
(ii) | "Failure" means any breakage of, or defect in, an Item that materially impairs the utility or safety of the Item, provided that (a) 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 and (b) has occurred or can reasonably be expected to occur on a repetitive basis. |
12.2.2 | Periods and Seller's Undertaking |
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(i) | design and furnish to the Buyer a correction for such Item and provide any parts required for such correction (including Seller designed standard parts but excluding industry standard parts), or |
(ii) | 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 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: |
[***] |
12.2.4 | General Conditions and Limitations |
12.2.4.1 | Notwithstanding any provision of this Clause 12.2, during the Warranty Period, all Items will be covered by the provisions of Clause 12.1 of this Agreement and not by the provision of Clause 12.2. |
12.2.4.2 | The Buyer's remedies and the Seller's obligations and liabilities under this Service Life Policy are subject to compliance by the Buyer with the following conditions: |
(i) | The Buyer will maintain log books and other historical records with respect to each Item adequate to enable the Seller to determine whether the alleged Failure is coveted by this Service Life Policy and, if so, to define the portion of the cost to be borne by the Seller in accordance with Clause 12.2.3 above. |
(ii) | The Buyer will keep the Seller informed of all incidents that are reportable to the FAA or the National Transportation Safety Board (NTSB). |
(iii) | The conditions of Clause 12.1.11 will have been complied with. |
(iv) | The Buyer will implement specific structural inspection programs for monitoring purposes as may be established from time to time by the Seller. Such programs will be compatible with the Buyer's operational requirements and will be carried out at the Buyer's expense. Reports relating thereto will be regularly furnished to the Seller. |
(i) | The Buyer will report any breakage or defect in writing to the Seller within sixty (60) days after any breakage or defect in an Item becomes apparent, whether or not the breakage or defect can reasonably be expected to occur in any other Aircraft, and the Buyer will provide the Seller with sufficient detail |
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about the breakage or defect to enable the Seller acting reasonably to determine whether said breakage or defect is subject to this Service Life Policy. |
12.2.4.3 | Except as otherwise provided in this Clause 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, Clause 12.1.6. |
12.2.4.4 | If the Seller has issued a service bulletin applicable to an Aircraft, the purpose of which is to avoid a Failure, the Seller may elect to supply the necessary service bulletin free of charge or under a pro rata 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 Clause 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 COMPONENT TO CONFORM TO NEW DEVELOPMENTS OCCURRING IN THE STATE OF AIRFRAME DESIGN AND MANUFACTURING ART. THE SELLER'S OBLIGATION UNDER THIS CLAUSE 12.2 IS TO MAKE ONLY THOSE CORRECTIONS TO THE ITEMS OR FURNISH REPLACEMENTS THEREFOR AS PROVIDED IN THIS CLAUSE 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 CLAUSE 12.2 IN RESPECT OF SUCH CORRECTED OR REPLACEMENT ITEM. WITHOUT LIMITING THE EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS OF LIABILITY PROVISIONS SET FORTH IN CLAUSE 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. |
12.2.4.6 | Transferability |
The Buyer's rights under this Clause 12.2 will not be assigned, sold, transferred or otherwise alienated by operation of law or otherwise, except as permitted in Clause 20 of this Agreement. |
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Any unauthorized assignment, sale, transfer or other alienation of the Buyer's rights under this Service Life Policy will, as to the particular Aircraft involved, immediately void this Service Life Policy in its entirety. |
12.3 | SUPPLIER WARRANTIES AND SERVICE LIFE POLICIES |
12.3.1 | Seller's Support |
Before Delivery of the first Aircraft, the Seller will provide the Buyer with the warranties and service life policies that the Seller has obtained pursuant to the Supplier Product Support Agreements. |
12.3.2 | Supplier's Default |
12.3.2.1 | [***] |
12.3.2.2 | [***] |
12.3.2.3 | [***] |
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, except for the reasonable cost of transportation |
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of the Seller's or its designee's personnel to the Buyer's facilities, the Buyer will reimburse the Seller for business class air transportation when the Seller's personnel must travel internationally, and for confirmed coach class fares, on the Buyer's routes wherever possible for Seller's personnel traveling domestically and reasonable food and lodging expenses of the representative(s) of Seller, promptly conduct or have conducted an investigation and analysis of such problem to determine, if possible, the cause or causes of the problem and to recommend such corrective action as may be feasible, provided, however, that if the Seller determines, after such due and reasonable investigation, that the Interface Problem was, in the reasonable judgment of the Seller, due to or caused by any act or omission of the Buyer in its performance of its obligations hereunder, the Buyer will pay to the Seller all reasonable costs and expenses incurred by the Seller during such investigation. The Buyer will furnish to the Seller all data and information in the Buyer's possession relevant to the Interface Problem and will cooperate with the Seller in the conduct of the Seller's investigations and such tests as may be required. 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 Seller determines, in the exercise of good faith and diligence, that the Interface Problem is primarily attributable to the design of a Warranted Part, the Seller will, if requested by the Buyer, correct the design of such Warranted Part, pursuant to the terms and conditions of Clause 12.1. |
12.4.3 | Suppliers Responsibility |
If the Seller determines, in the exercise of good faith and diligence, that the Interface Problem is primarily attributable to the design of any Supplier Part, the Seller will at the Buyer's request, reasonably assist the Buyer in processing any warranty claim the Buyer may have against the manufacturer of such Supplier Part. |
12.4.4 | Joint Responsibility |
If the Seller determines, in the exercise of good faith and diligence, that the Interface problem is attributable partially to the design of a Warranted Part and partially to the design of any Supplier Part, the Seller will, if requested by the Buyer, seek a solution to the Interface Problem through cooperative efforts of the Seller and any Supplier involved. The Seller will promptly advise the Buyer of any corrective action proposed by the Seller and any such Supplier. Such proposal will be consistent with any then existing obligations of the Seller hereunder and of any such Supplier to the Buyer. Such corrective action, unless reasonably rejected by the Buyer, will constitute full satisfaction of any claim the Buyer may have against either the Seller or any such Supplier with respect to such Interface Problem. |
12.4.5 | General |
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12.4.5.1 | All requests under this Clause 12.4 will be directed both to the Seller and the affected Suppliers. |
12.4.5.2 | Except as specifically set forth in this Clause 12.4, this Clause 12.4 will not be deemed to impose on the Seller any obligations not expressly set forth elsewhere in this Agreement. |
12.4.5.3 | All reports, recommendations, data and other documents furnished by the Seller to the Buyer pursuant to this Clause 12.4 will be deemed to be delivered under this Agreement and will be subject to the terms, covenants and conditions set forth in this Clause 12 and in Clause 22.5. |
12.5 | [***] |
12.6 | DUPLICATE REMEDIES |
The remedies provided to the Buyer under this Clause 12 as to my defect in respect of the Aircraft or any part thereof are mutually exclusive and not cumulative. The Buyer will be entitled to the remedy that provides the maximum benefit to it, as the Buyer may elect, pursuant to the terms and conditions of this Clause 12 for any such particular defect for which remedies are provided under this Clause 12; provided, however, that the Buyer will not be entitled to elect a remedy under one part of this Clause 12 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 the Buyer will not have any right to require specific performance by the Seller. |
[***] |
12.7 | NEGOTIATED AGREEMENT |
The Buyer specifically recognizes that: |
(i) | the Specifications have been agreed upon after careful consideration by the Buyer using its judgment as a professional operator of, and maintenance provider with respect to, aircraft used in public transportation and as such is a professional within the same industry as the Seller; |
(ii) | this Agreement, and in particular this Clause 12, has been the subject of discussion and negotiation and is fully understood by the Buyer; |
(iii) | the price of the Aircraft and the other mutual agreements of the Buyer set forth in this Agreement were arrived at in consideration of, inter alia, the provisions of this Clause 12, specifically including the Exclusivity of Warranties set forth in Clause 12.5. |
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13 - | PATENT AND COPYRIGHT INDEMNITY |
13.1 | Indemnity |
13.1.1 | [***] |
(i) | [***] |
(ii) | [***] |
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(1) | [***] |
(2) | [***] |
(iii) | [***] |
13.1.2 | [***] |
(i) | [***] |
(ii) | [***] |
(iii) | [***] |
(iv) | [***] |
13.1.3 | [***] |
(i) | [***] |
(ii) | [***] |
13.2 | Administration of Patent and Copyright Indemnity Claims |
13.2.1 | If the Buyer receives a written claim or a suit is threatened or begun against the Buyer for infringement of a patent or copyright subject to indemnity under this Clause 13 referred to in Clause 13.1, the Buyer will |
(i) | promptly, after becoming aware thereof notify the Seller, giving particulars thereof; |
(ii) | furnish to the Seller all data, papers and records within the Buyer's control or possession relating to such claim; |
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(iii) | refrain from admitting any liability or making any payment, or assuming any expenses, damages, costs or royalties, or otherwise acting in a manner prejudicial to the defense or denial of the suit or claim, it being agreed that nothing in this Clause 13.2.1(iii) will prevent the Buyer from paying the sums that may be required to obtain the release of the Aircraft, provided that payment is accompanied by a denial of liability and is made without prejudice; |
(iv) | at the expense of Seller, fully cooperate with, and render all reasonable assistance to, the Seller as may be pertinent to the defense or denial of the suit or claim; |
(v) | to the extent commercially reasonable, act to mitigate damages and/or to reduce the amount of royalties that may be payable, and act to minimize costs and expenses. |
13.2.2 | The Seller will be entitled either in its own name or on behalf of the Buyer to conduct negotiations with the party or parties alleging infringement and may assume and conduct the defense or settlement of any suit or claim in the manner that, in the Seller's reasonable opinion, it deems proper. Buyer may participate, at its own expense, with Seller in the defense or appeal of any such suit, claim, or judgment; provided, however, that Seller retain sole control and authority regarding any such defense, compromise, settlement, appeal, or similar action, as set forth in this Clause 13.2.2. |
13.2.3 | The Seller's liability hereunder will be conditional on the substantial and timely compliance by the Buyer with the terms of this Clause and is in lieu of any other liability to the Buyer, whether express or implied, which the Seller might incur at law as a result of any infringement or claim of infringement of any patent or copyright. |
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14 | TECHNICAL DATA |
14.1 | Scope |
This Clause covers the terms and conditions for the supply of technical data and software services (hereinafter, "Technical Data") to support operation and maintenance of the Aircraft. |
14.1.2 | Range, form, type, format, ATA/non-ATA compliance, revision, and quantity of the Technical Data are covered in Exhibit F hereto. |
14.1.3 | The Technical Data will be supplied in the English language using aeronautical terminology in common use. |
14.1.4 | The Buyer will not receive credit or compensation for any partially used or unused Technical Data provided pursuant to this Clause 14. |
14.2 | Aircraft Identification for Technical Data |
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14.3 | Integration of Equipment Data |
14.3.1 | Data On Supplier Equipment |
lf necessary for the understanding of the affected systems, information relating to Supplier equipment that is installed on the Aircraft by the Seller will be included free of charge in the basic issue of the customized Technical Data. |
14.3.2 | The Buyer will supply to the Seller, at the Buyer's expense, the technical data related to Buyer Furnished Equipment, in English, at least [***] before the scheduled delivery of the customized Technical Data. The Seller will incorporate the technical data related to the BFE into the Technical Data basic issue at no additional cost to the Buyer, provided such data is provided in accordance with the conditions set forth in Clauses 14.3.3 through 14.3.6. |
14.3.3 | The BFE data supplied will be in compliance with ATA 100/2200 standard Specification, in the revision applicable to the corresponding Aircraft type. Subsequent revisions will be considered as applicable. |
14.3.4 | The Buyer and the Seller will enter into an agreement with the aim of managing the BFE data integration process (the "Data Supply/Exchange Agreement".) |
14.3.5 | The BFE data will be delivered in digital format (SGML) and/or in Portable Document Format (PDF). |
14.3.6 | All costs related to the delivery of BFE data to the Seller will be borne by the Buyer. |
14.4 | Delivery |
14.4.1 | The Technical Data and corresponding revisions to be supplied by the Seller will be sent to one address only as advised by the Buyer. |
14.4.2 | Technical Data and revisions will be packed and shipped by the quickest transportation methods reasonably available. Shipment will be Free Carrier (FCA) Toulouse, France, and/or Free Carrier (FCA) Hamburg, Germany. |
Reasonable quantities of the Technical Data will be delivered according to a mutually agreed schedule, designed to correspond to Aircraft deliveries. The Buyer will provide no less than [***] notice to the Seller if a change is requested to the delivery schedule for the Technical Data. |
14.4.3 | The Buyer shall be responsible for coordinating with, and satisfying the needs of the Aviation Authorities with respect to the Technical Data. |
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14.5 | Revision Service |
Unless otherwise specifically stated, revision service will be offered [***] after delivery of the last Aircraft. Thereafter, revision service will be provided in accordance with the terms and conditions found in the then current Airbus North America Customer Services Catalog. |
14.6 | Service Bulletin (SB) Incorporation |
During the period of revision service and upon the Buyer's request for incorporation, which will be made within [***] after issuance of a Service Bulletin, Seller's Service Bulletin information will be incorporated into the Technical Data for the Buyer's Aircraft, after formal notification by the Buyer of its intention to accomplish a Service Bulletin. The split effectivity for the corresponding Service Bulletin will remain in the Technical Data until notification from the Buyer that embodiment has been completed on all the Buyer's Aircraft. For the operational Technical Data only, the pre or post Service Bulletin status will be shown. |
14.7 | Future Developments |
The Buyer agrees to consider (without obligation) for implementation any new technological development applicable to, and deemed by the Seller to be beneficial and economical for, the production and transmission of data and documents. |
14.8 | Technical Data Familiarization |
Upon request by the Buyer, the Seller will provide [***] of Technical Data familiarization training, at the Seller's or Buyer's facility. If such familiarization is conducted at the Buyer's facilities, the Buyer will reimburse the Seller for business class air transportation when the Seller's personnel must travel internationally, and for confirmed coach class fares, on the Buyer's routes wherever possible for Seller's personnel traveling domestically and reasonable food and lodging expenses of the representative(s) of Seller conducting the familiarization training. |
14.9 | Customer Originated Changes |
14.9.1 | Data on Customer Originated Changes (COC) may be incorporated into the following Technical Data customized to the Buyer: |
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14.9.2 | COC data will be developed by the Buyer according to the "Guidelines for Customer Originated Changes" issued by the Seller. The Buyer will ensure that any such COC data is in compliance with the requirements of its local Aviation Authorities. |
COC data will be incorporated by the Seller in the customized Technical Data listed in Clause 14.9.1 unless the Buyer specifies in writing into which customized Technical Data the Buyer desires that the COC data be incorporated. Following incorporation of the COC data as requested by the Buyer, the relevant customized Technical Data will show only the aircraft configuration that reflects the COC data and not the configuration before incorporation of the COC data. |
14.9.3 | The Buyer hereby acknowledges and accepts that the incorporation of any COC into the Technical Data will be at the Buyer's sole risk, and the Seller will have no liability whatsoever with respect to: (a) the contents of any COC (including any omissions or inaccuracies therein) (b) any effect that the incorporation of such COC may have on the Technical Data or (c) any costs of any nature that any COC may have on all subsequent Service Bulletins and modifications. |
The Seller will not be required to check the accuracy or validity of any COC data submitted for incorporation into the Technical Data. |
14.9.4 | The Buyer will indemnify and hold the Seller harmless from and against any losses (including reasonable attorneys' fees) arising from claims by any third party for injury, loss or damage incurred directly or indirectly as a result of incorporation of any COC into the Technical Data issued by the Seller. |
14.9.5 | No liability on the part of the Seller will arise, and no obligations of the Buyer under the foregoing Clause 14.9.4 will be reduced, by any communication, whether written or oral, between the Seller and the Buyer with respect to COC data or the incorporation of such data into the Technical Data. |
14.9.6 | The Seller's costs with respect to the incorporation of any COC will be invoiced to the Buyer under conditions specified in ANACS' Customer Services Catalog in effect at the time of the Buyer's request for incorporation. |
14.10 | Software Services |
14.10.1 | Performance Engineer's Programs |
In addition to the standard operation manuals, the Seller will provide to the Buyer Performance Engineer's Programs (PEPs) under the terms and conditions of the License for use of Software attached as Appendix 1 to Exhibit F hereto (the "Software License"). Use of PEP will be limited to one (1) copy installed on one (l) computer. PEP is intended for use on the ground only and will not be installed on an Aircraft The Seller will provide the Buyer with a three-day installation and review visit regarding the PEPs. |
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The Software License for use of PEP will be granted [***]. At the expiration of that period, the Buyer will be entitled to continue to use the PEP Software [***], in accordance with the terms and conditions of the then-current Airbus North America Customer Services Catalog. |
14.10.2 | Basic AirN@V |
The following Technical Data are provided on DVD (digital video disk) and shall also be governed by the terms and conditions of the Software License: |
From time to time, the Seller may make additional Technical Data available on DVD and may impose other reasonable license conditions with respect thereto. |
The Software License for use of Basic AirN@v will be granted [***]. At the expiration of that period, the Buyer will be entitled to continue to use the software [***], in accordance with the terms and conditions of the then current Airbus North America Customer Services Catalog. |
14.10.3 | Airbus On-Line Services |
14.10.3.1 | AOLS is a database allowing the Buyer to access a wide range of services through a web portal. AOLS, including a description of those Technical Data that are available through the use of AOLS, are described in Attachment 1 to Appendix 2 to Exhibit F. AOLS described in Paragraph A of such Attachment are available [***]. |
14.10.3.2 | The Seller will provide to the Buyer Airbus On-Line Services ("AOLS") under the terms and conditions of the License Agreement for use of AOLS attached as Appendix 2 to Exhibit F here to (the "AOLS License") and to the Software License attached as Appendix 1 to Exhibit F. [***] |
14.10.3.3 | Those Technical Data that are available through AOLS and individual documents, contained therein will be subject to change, revision and/or replacement from time to time. [***] |
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14.11 | Warranty |
14.12 | Proprietary Rights |
14.13 | Confidentiality. |
15 - | SELLER REPRESENTATIVES |
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15.1 | Resident Customer Support Representatives |
15.1.1 | The Seller will provide representatives to act in an advisory capacity at the Buyer's main base or at other locations ("Resident Customer Support Representative") to be mutually agreed. |
(i) | [***] |
(ii) | [***] |
15.1.2 | The Seller will provide to the Buyer an annual written account of the consumed man-months of Resident Customer Support Representative's time consumed in the preceding year together with any remaining balance. |
15.1.3 | Should the Buyer request Resident Customer Support Representative time that exceeds the amounts set forth in Clause 15.1.1(ii), the Seller may provide additional service subject to the terms and conditions agreed by the Buyer and the Seller at the time of such request. |
15.1.4 | The Seller will cause similar resident customer support services to be provided by the representatives of the Propulsion System manufacturer and by representatives of the Suppliers when necessary and applicable. |
15.2 | Customer Support Director |
The Seller will assign the services of one (l) Customer Support Director based in Herndon, Virginia, to liaise between the Manufacturer and the Buyer on product support matters after signature of this Agreement and for as long as the Buyer operates at least one (1) Aircraft. |
15.3 | [***] |
15.4 | Buyer's Support |
15.4.1 | From the date of arrival of the first Resident Customer Support Representative and Spares Representative and for the duration of the assignment, the Buyer will provide free of charge, suitable office space, office equipment and facilities |
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including, telephone and facsimile connections, for the sole use of the Resident Customer Support Representative(s) in or conveniently near the relevant Buyer's facilities. |
15.4.2 | In accordance with the Buyer's regulations, the Buyer will provide [***] to the Seller |
(i) | airline tickets in business class, confirmed and guaranteed between the site at which the Resident Customer Support Representative services are to be provided and the international airport nearest Toulouse, France, that is on the Buyer's network for the Resident Customer Support Representative(s) and the Spares Parts Field Representative mentioned in and 15.4, for travel at the beginning and end of the applicable assignment; and |
(ii) | when said Resident Customer Support Representative(s) are requested by the Buyer to travel from the site to which they are assigned, transportation on coach class basis between the said locations and the place of assignment. |
15.4.3 | The Buyer and the Seller will give each other all necessary reasonable assistance with general administrative functions specific to their respective countries and with procurement of the documents necessary to live and work in such countries. |
15.5 | Temporary Assignment and Withdrawal of Resident Customer Support Representative |
The Seller will have the right upon written notice to and communication with the Buyer to transfer or recall any Resident Customer Support Representative(s) on a temporary basis if and for so long as, in the Seller's reasonable opinion, conditions are dangerous to the Resident Customer Support Representative's safety or health or prevent the fulfillment of such Resident Customer Support Representative's contractual tasks. The Buyer will receive credit for the man-days during which any Resident Customer Support Representative is absent from the Buyer's facility pursuant to this Clause 15.5. |
15.6 | Representatives' Status |
In providing the above technical service, the Seller's employees, including Resident Customer Support Representative(s), the Spares Representative and the Customer Support Director, are deemed to be acting in an advisory capacity only and at no time will they be deemed to be acting, either directly or indirectly, as the Buyer's employees or agents. |
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16 - | TRAINING AND TRAINING AIDS |
16.1 | General |
This Clause covers the terms and conditions for the supply of training and training aids for the Buyer's personnel to support the Aircraft operation. |
16.2 | Scope |
16.2.1 | The range and quantity of training and training aids to be provided free of charge under this Agreement are covered in Appendix A to this Clause 16. The Seller will arrange availability of such training and training aids in relation to the delivery schedule for the Aircraft set forth in Clause 9.1.1. |
16.2.2 | The contractual training courses, defined in Appendix A to this Clause 16, will be provided up to [***] after delivery of the last Aircraft. |
16.2.3 | If the, Buyer uses none or only part of the training or training aids to be provided pursuant to this Clause, no compensation or credit of any sort will be provided. |
16.3 | Training Organization / Location |
16.3.1 | The Seller will provide the training at the Airbus Training Center in Miami, Florida unless otherwise agreed by the Buyer. The Seller will not be liable for any delays in training due to unavailability of facilities or scheduling difficulties in Miami if an alternative training center has been proposed by the Seller and refused by the Buyer. |
16.3.2 | If unavailability of facilities or scheduling difficulties make training by the Seller impractical at the training center listed in Clause 16.3.1, the Seller will notify the Buyer and the parties will discuss alternative arrangements for such training support, described in this Clause 16 at other Seller affiliated training centers located in North America. |
16.3.3 | Upon the Buyer's request the Seller may also provide certain training at one of the Buyer's bases, if and when practicable for the Seller, under terms and conditions to be mutually agreed upon. In this event, all additional charges listed in Clause 16.6.2 will be borne by the Buyer. |
16.4 | Training Courses |
16.4.1 | Training courses, as well as the minimum and maximum numbers of trainees per course provided for the Buyer's personnel, are defined in the Seller's applicable training course catalog (the "Training Course Catalog") and will be scheduled as mutually agreed upon during a training conference (the "Training Conference") that will be held as soon as practicable after signature of this Agreement and no later than six (6) months prior to delivery of the first Aircraft (provided that any failure attributable to the Seller to conduct such meeting within such period shall not affect Seller's obligation to provide such training). |
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16.4.2 | The following terms will apply when training is performed by the Seller. |
(i) | Training courses will be the Seller's standard courses as described in the Seller's applicable Training Course Catalog valid at the time of execution of the course. The Seller will be responsible for all training course syllabi, training aids and training equipment necessary for the organization of the training courses. |
(ii) | The training curricula and the training equipment may not be fully customized. However, they may be modified to include the most significant aspects of the Specification as known at the latest six (6) months prior to the date of the first training course planned for the Buyer and will be configured in order to obtain the relevant Aviation Authority's approval and to support the Seller's teaching programs. |
(iii) | Training data and documentation necessary for training detailed in Appendix A to this Clause 16 will be [***] and will not be revised. Training data and documentation will be marked "FOR TRAINING ONLY" and as such will be supplied for the sole and express purpose of training. |
(iv) | Upon the request of the Buyer and at no charge to the Buyer, the Seller will collect and pack for consolidated shipment to the Buyer's facility, all training data and documentation of the Buyer's trainees attending training at the Airbus Training Center in Miami, Florida or Blagnac, France as applicable. This training data and documentation will be delivered Free Carrier (FCA) Miami International Airport. It is understood that title to and risk of loss of the training data and documentation will pass to the Buyer upon delivery. |
16.4.3 | If the Buyer decides to cancel or reschedule a training course, a minimum advance notice of [***] will be required. Any later cancellation or change from the Buyer, when courses cannot be allocated to other customers, will be deducted from the training allowances defined herein or if no such training allowances remain, the Seller will invoice the Buyer at the then prevailing prices in the ANACS Customer Services Catalog. |
16.4.4 | In fulfillment of its obligation to provide training courses, when the Seller performs the training courses, the Seller will deliver to the trainees a certificate of completion at the end of any such training course. The Seller's certificate does not represent authority or qualification by any official Aviation Authorities but may be presented to such officials in order to obtain relevant formal qualification. |
If training is provided by a training provider selected by the Seller, the Seller will cause such training provider to deliver a certificate of completion at the end of any such training course. Such certificate will not represent authority or qualification by any official Aviation Authorities but may be presented to such officials in order to obtain relevant formal qualification. |
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16.5 | Prerequisites |
16.5.1 | Training will be conducted in English and all training aids are written in English using common aeronautical terminology. Trainees must have the prerequisite experience as defined in Appendix B to this Clause 16. |
The Seller's training courses are "Initial Equipment Training Courses", "Transition Training Courses", and "Upgrade Training Courses". The Seller does not provide "Ab Initio Training Courses." |
The Buyer will be responsible for the selection of the trainees and for any liability with respect to the entry knowledge level of the trainees. |
16.5.2 | The Buyer will provide the Seller with an attendance list of the trainees for each course with the validated qualification of each trainee. The Seller reserves the right to verify the trainees' proficiency and previous professional experience. The Seller will in no case warrant or otherwise be held liable for any trainee's performance as a result of any training services provided. |
16.5.3 | Upon the Buyer's request, the Seller may be consulted to direct the above mentioned trainee(s) through a relevant entry level training program, which will be at the Buyer's charge, and, if necessary, to coordinate with competent outside organizations for this purpose. Such consultation will be held during the Training Conference. |
If the Seller should determine that a trainee lacks the required entry level, such trainee will, following consultation with the Buyer, be withdrawn from the program. |
Upon such withdrawal, the Seller will deduct the corresponding allowance from the total allowance for the applicable training. |
16.6 | Logistics |
16.6.1 | Trainees |
16.6.1.1 | When training is done at the Airbus Training Center in Miami, Florida, the Seller will provide a [***] rental car for all of the Buyer's trainees for the duration of the training course on the basis of one (1) rental car per four (4) maintenance and operations trainees and one (1) rental car per flight crew. At the Buyer's request, the Seller will make available an alternative means of transportation for the flight attendants. |
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The Seller will provide rental cars with unlimited mileage, and the Buyer will pay for gas, and fines, if any. However, the Buyer will indemnify and hold the Seller harmless from and against all liabilities, claims, damages, costs and expenses for any injury to or death of any of the Buyers' trainees or to any third party occurring during the course of such transportation. |
16.6.1.2 | When training is done at the Airbus Training Center in Blagnac, France, or Beijing, China, or at another location pursuant to Clause 16.3.2, the Seller will provide free local transportation by bus for the Buyer's trainees to and from designated pick up points and the training center. |
16.6.1.3 | Living expenses for the Buyer's trainees are to be borne by the Buyer. |
16.6.2 | Training at External Location |
16.6.2.1 | Seller's Instructors |
If at the Buyer's request, training is provided by the Seller's instructors at any location other than the Seller's training centers, the Buyer will reimburse the Seller for all the expenses (other than as set forth in Clause 16.3.3, if applicable), defined below in Clauses 16.6.2.2, 16.6.2.3, 16.6.2.4 and 16.6.2.5 related to the assignment of such instructors and their performance of the duties as aforesaid. |
16.6.2.2 | Living Expenses for the Seller's Instructors |
Such expenses, covering the entire period from day of secondment to day of return to the Seller's base, will be limited to lodging, food and local transportation to and from the place of lodging and the training course location. The Buyer will reimburse the Seller for such expenses on the basis of a per diem rate corresponding to the current per diem rate used by the Seller for its personnel. |
16.6.2.3 | Air Travel |
The Buyer will reimburse the Seller for business class air transportation when the Seller's personnel must travel internationally, and for confirmed coach class fares, on the Buyer's routes wherever possible for Seller's personnel traveling domestically and reasonable food and lodging expenses to and from the Buyer's designated training site and the Seller's training center. |
16.6.2.4 | Training Material |
The Buyer will reimburse the Seller for the cost of shipping the training material needed to conduct such courses. |
16.6.2.5 | Buyer's Indemnity |
The Buyer will be solely liable for any and all cancellation or delay in the performance of the training outside of the Seller's training centers that is associated with the transportation provided under Clause 16.6.2.3 above will indemnify and hold the Seller harmless from such delay. |
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16.6.2.6 | Training Equipment Availability |
Training equipment necessary for course performance at any course location other than the Seller's training centers or the facilities of the training provider selected by the Seller will be provided by the Buyer in accordance with the Seller's specifications. |
16.7 | Flight Operations Training |
16.7.1 | Flight Crew Training Course |
16.7.1.1 | The Seller will perform a flight crew training course program for the Buyer's flight crews. A flight crew will consist of two pilots, as defined in Appendix A to this Clause 16. The training manual used will be the Seller's Flight Crew Operating Manual or the Buyer's Flight Crew Operating Manual, as applicable. |
16.7.1.2 | The Buyer will use its delivered Aircraft for any required in-flight training. This training will not exceed one (1) session of one and a half (1.5) hours per pilot. When in-flight crew training is performed in Blagnac, France, the Seller will provide free-of-charge line maintenance, including servicing, preflight checks and changing of minor components, subject to conditions agreed in this Agreement. |
16.7.1.3 | The Buyer will provide mutually agreed spare parts as required to support said in-flight training and will provide evidence of insurance coverage consistent with Clause 19. |
16.7.1.4 | In all cases, the Buyer will bear the expenses of fuel, oil and landing fees. |
16.7.2 | Flight Crew Line Initial Operating Experience |
16.7.2.1 | In order to assist the Buyer with initial operating experience after delivery of the first Aircraft, the Seller will provide pilot instructors as defined in Appendix A to this Clause 16 to the Buyer. The maximum number of Seller's pilot instructors present at the Buyers site at one time will be limited to four (4). |
16.7.2.2 | Additional pilot instructors can be provided at the Buyer's expense upon conditions to be mutually agreed. |
16.7.2.3 | Prior to any flight training to be performed by the Seller on the Buyer's Aircraft, the Buyer will provide the Seller with a copy of the certificate, of insurance as requested in Clause 19. |
16.7.3 | Flight Attendants' Familiarization Course The Seller will provide flight attendants' course(s) to the Buyer's flight attendants, as defined in Appendix A to this Clause 16 at the Training Conference. |
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16.8 | Maintenance Training |
16.8.1 | The Seller will provide maintenance training for the Buyer's ground personnel as defined in Appendix A to this Clause 16. |
The available courses are listed in the Seller's applicable Training Course Catalog. |
The practical training provided in the frame of maintenance training is performed exclusively on the training devices in use in the Seller's Training Center or Affiliated Training Centers. If additional practical training is required, such additional practical training can be organized with the assistance of the Seller, in accordance with Clause 16.8.2 hereunder. |
16.8.2 | Practical Training |
If the Buyer requires practical training to be organized at another airline's facilities ("Practical Training"), the Seller will assist the Buyer in organizing this training without guaranteeing the availability of any such facilities. |
Such Practical Training will be deducted from the trainee-day allowance defined in Paragraph 2.1 of Appendix A to this Clause 16 in the manner defined in Paragraph 3 of such Appendix. |
16.8.3 | Maintenance Initial Operating Experience Training |
In order to assist the Buyer during the entry into service of the Aircraft, the Seller will provide maintenance instructor(s) at the Buyer's base as defined in Appendix A to this Clause 16 to the Buyer. |
16.8.3.1 | This maintenance initial operating experience training will consist of training in handling and servicing of Aircraft, flight crew and maintenance coordination, use of paper and/or electronic documentation and/or any other activities which may be deemed necessary after delivery of the first Aircraft. |
16.8.3.2 | The Buyer will reimburse the expenses for said instructor(s) in accordance with Clause 16.6.2. Additional maintenance instructors can be provided at the Buyer's expense. |
16.9 | Supplier and Engine Manufacturer Training |
The Seller will ensure that major Suppliers and the Propulsion System manufacturer provide maintenance training and overhaul training on their products at appropriate times. |
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16.10 | Training Aids for the Buyer's Training Organization |
16.10.1 | The Seller will provide to the Buyer the Airbus Computer Based Training, training aids, as used in the Seller's Training Centers, free of charge as defined in Appendix A to this Clause 16. |
The Airbus CBT System and training aids supplied to the Buyer will be similar to those used at the Airbus Training Centers for training provided for the Buyer. The Airbus CBT System in use at the Seller's Training Center may be revised on a regular basis and such revisions, if any, will be provided to the Buyer free or charge during the period when training courses provided under this Clause 16 are performed for the Buyer or up to one (l) year after Delivery of the last Aircraft delivered under this Agreement; whichever occurs first. |
16.10.2 | Delivery of Training Aids |
16.10.2.1 | The Seller will deliver to the Buyer the Airbus CBT System and, training aids as defined in Appendix A to this Clause 16, at a date to be mutually agreed during the Training Conference. |
16.10.2.2 | Those items supplied to the Buyer pursuant to Clause 16.10.1 above will be delivered FCA Toulouse, France, and/or FCA Hamburg, Germany. Title to and risk of loss of said items will pass to the Buyer upon delivery. |
16.10.3 | Installation |
16.10.3.1 | The Buyer will provide any and all the necessary hardware on which the Airbus CBT System will be installed and Seller will not be responsible for any incompatibility of such hardware with the Airbus CBT System. |
16.10.3.2 | The Airbus CBT System will be installed by the Buyer's personnel who have completed the Airbus CBT training, and the Seller will be held harmless from any damage to persons and/or to property caused by or in any way connected with the handling and/or installation of the Airbus CBT System by the Buyer's personnel, unless the Seller provides unique instructions for such installation and the Buyer follows such instructions, such instructions are inaccurate and such inaccuracies are the cause of the damage. |
16.10.3.3 | The Buyer will reimburse the expenses in accordance with Clause 16.6., for the Seller's personnel required at the Buyer's facility to conduct Airbus CBT Training and/or provide installation assistance. |
16.10.4 | License |
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16.10.4.1 | The Seller will grant the Buyer a license to use the Airbus CBT System, as defined in Appendix C to this Clause 16. |
16.10.4.2 | Supply of additional sets of courseware, as well as any extension of the license for such courseware, will be subject to terms and conditions to be mutually agreed. |
16.10.5 | The Seller will not be responsible and hereby disclaims any and all liabilities resulting from or in connection with the use by the Buyer of the training aids at the Buyer's facilities. |
16.11 | Proprietary Rights |
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1. | FLIGHT OPERATIONS TRAINING |
1.1 | Flight Crew Training |
1.2 | Flight Crew Line Initial Operating Experience |
1.3 | Instructor Cabin Attendants' Familiarization Course |
1.4 | Dispatch/Performance/Operations/Ground Support Course(s) |
2. | MAINTENANCE TRAINING |
2.1 | Maintenance Training Courses |
2.2 | Maintenance Initial Operating Experience Training |
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3. | TRAINEE DAYS ACCOUNTING |
4. | TRAINING AIDS AND CBT SYSTEM FOR BUYER'S TRAINING ORGANIZATION |
4 | The Seller will provide to the Buyer [***] "Airbus CBT System," defined in Clause 2.1.3 of Appendix C to Clause 16, related to the Aircraft. The Seller will also provide free of charge updates to courseware in Clause 4.2 below when developed by the Manufacturer, continuing through to the third year following delivery of the last Aircraft. |
4.1 | The Airbus CBT System supplied to the Buyer will consist of |
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(i) | an adapted course or |
(ii) | an Entry Level Training (ELT) program before entering the regular or the adapted course. |
(i) | For all Maintenance courses: |
(ii) | Additional prerequisites (for Aircraft Rigging Engine Run-Up and Maintenance Initial Operating Course): |
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1. | GRANT |
2. | DEFINITIONS |
2.1 | For the purpose of this Appendix C to Clause 16, the following definitions will apply: |
2.1.1 | "Airbus CBT Courseware" means the programmed instructions that provide flight crew and maintenance training. |
2.1.2 | "Airbus CBT Software" means the system software that permits the use of the Airbus CBT Courseware. |
2.1.3 | "Airbus CBT System" means the combination of the Airbus CBT Software and the Airbus CBT Courseware. |
2.1.4 | "Student/Instructor Mode" means the mode that allows the user to run the Airbus CBT Courseware. |
2.1.5 | "Airbus CBT Training" means the training enabling the Buyer to load and use the Airbus CBT System. |
2.1.6 | "User Guide" means the documentation, which may be in electronic format designed to assist the Buyer to use the Airbus CBT. |
2.2 | For the purpose of clarification, it is hereby stated that all related hardware required for the operation of the Airbus CBT System is not part of the Airbus CBT System and will be procured under the sole responsibility of the Buyer. |
3. | COPIES |
3.1 | The Buyer will be permitted to copy the Airbus CBT Software for back-up and archiving purposes and for loading of the Airbus CBT Software exclusively on the Buyer's workstations. In such cases, the Buyer will advise the Seller in writing stating the number and purpose of any copies made. Any other copying without Sellers consent is strictly prohibited. |
3.2 | The Buyer will reproduce the copyright and other notices as they appear on or within the original media on any copies that the Buyer makes of the Airbus CBT Software. |
4. | TERM |
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5. | PERSONAL ON-SITE LICENSE |
5.1 | The License granted herein is personal to the Buyer for use of the Airbus CBT System and is nontransferable and nonexclusive. |
5.2.1 | The Buyer may not (i) distribute or sublicense any portion of the Airbus CBT System to a third party, (ii) modify or prepare derivative works from the Airbus CBT Software, except as set forth in 6.1 herein (iii) publicly display visual output of the Airbus CBT Software, or (iv) transmit the Airbus CBT Software electronically by any means. |
5.2.2 | The Buyer will use the Airbus CBT exclusively in the technical environment defined in the User Guide. |
6. | CONDITIONS OF USE |
6.1 | Use of the Airbus CBT Software |
(i) | including students on the roster for one or several courses syllabi in order to follow students' progression, |
(ii) | rearranging course syllabi or creating new syllabi using available courseware modules, it being understood that the Seller disclaims any responsibility regarding any course(s) that may be modified or rearranged by the Buyer. |
6.2 | Use of the Airbus CBT Courseware |
7. | PROPRIETARY RIGHTS AND NONDISCLOSURE |
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8. | LIMITED WARRANTY |
8.1 | The Seller warrants that the Airbus CBT System is prepared in accordance with the state of the art at the date of its development. Should the Airbus CBT System be found to contain any nonconformity or defect, the Buyer will notify the Seller promptly thereof and the sole and exclusive liability of the Seller under this Clause 8.1 of the Airbus CBT License will be to promptly correct the same at its own expense. |
8.2 | EXCLUSIVITY OF LIABILITY |
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17 | SUPPLIER PRODUCT SUPPORT |
17.1 | Equipment Supplier Product Support Agreements |
17.1.1 | The Seller will at no charge to the Buyer transfer to the Buyer the Supplier Product Support Agreements ("SPSA") transferable to the Buyer from Suppliers of Seller Furnished Equipment listed in the Specification. These agreements are based on the "World Airlines and Suppliers Guide" and include Supplier commitments contained in the Supplier Product Support Agreements, such commitments including: |
(i) | Technical data and manuals required to operate, maintain, service and overhaul the Supplier items will (a) be prepared in accordance with the applicable provisions of ATA Specification 100 and 101, in accordance with Clause 14 of this Agreement, (b) include revision service, and (c) 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 to protect Supplier's proprietary interests.) |
(ii) | Warranties and guarantees, including Suppliers' standard warranties, and in the case of Suppliers of landing gear, service life policies for selected landing gear structures. |
(iii) | Training to ensure efficient operation, maintenance and overhaul of the Suppliers' items for the Buyer's instructors, shop and line service personnel. |
(iv) | Spares data in compliance with ATA Specification 200 or 2000, initial provisioning recommendations, spares and logistics service, including routine and emergency deliveries. |
(v) | Technical service to assist the Buyer with maintenance, overhaul, repair, operation and inspection of Supplier items as well as required tooling and spares provisioning. |
17.2 | Supplier Compliance |
17.3 | Supplier Part Repair Stations |
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17.3.2 | The Seller will support the Buyer in cases where the agreed repair turn time of an approved repair station is not met by causing free-of-charge loans or exchanges as specified in the relevant Supplier Product Support Agreements to be offered to the Buyer. |
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18 - | BUYER FURNISHED EQUIPMENT |
18.1 | Administration |
18.1.1 | Without additional charge and in accordance with the Specification, the Seller will cause the Manufacturer to provide for the installation of the Buyer Furnished Equipment ("BFE"), provided that the BFE is referred to in the Airbus BFE Catalog of Approved Suppliers by Products valid at the time the BFE is ordered. |
The Seller will cause the Manufacturer to advise the Buyer of the dates by and location to which, in the planned release of engineering for the Aircraft, the Seller requires a written detailed engineering definition. This description will include the definition of the dimensions and weight of BFE, the information related to its certification and information necessary for the installation and operation thereof. The Buyer will furnish such detailed description and information by the dates specified. Thereafter, no information, dimensions or weights will be revised unless authorized by an SCN. |
The Seller will also provide the Buyer in due time with a schedule of dates and shipping addresses for delivery of BFE and (when requested by the Seller) additional spare BFE in order to permit installation of the BFE in the Aircraft and delivery of the Aircraft in accordance with the delivery schedule. The Buyer will provide the BFE by such dates in a serviceable condition, to allow performance of any assembly, test, or acceptance process in accordance with the industrial schedule. |
The Buyer will also provide, when requested by the Manufacturer, at Airbus France S.A.S. works and/or at Airbus Deutschland Gmbh works, as applicable and needed, adequate field service, including support from BFE suppliers to act in a technical advisory capacity to the Seller in the installation, calibration and possible repair of any BFE. |
18.1.2 | The BFE will be imported into France or into Germany by the Buyer under a suspensive customs system ("Régime de l'entrepôt industriel pour fabrication coordonnée" or "Zollverschluss") without application of any French or German tax or customs duty, and will be Delivered Duty Unpaid (DDU) (as defined in Incoterms 2000:ICC Official Rules for the Interpretation of Trade Terms, published by the International Chamber of Commerce), to |
AIRBUS FRANCE S.A.S. |
316 Route de Bayonne |
31300 |
Toulouse FRANCE |
or |
AIRBUS DEUTSCHLAND GMBH |
Division Hamburger Flugzeugbau |
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18.1.3 | If the Buyer requests the Seller to supply directly certain items that are considered BFE according to the Specification, and if such request is notified to the Seller in due time in order not to affect the delivery date of the Aircraft, the Seller may agree to order such items subject to the execution of an SCN reflecting the effect on price, escalation adjustment, and any other conditions of the Agreement. In such case the Seller will be entitled to the payment of a reasonable handling charge and will bear no liability in respect of delay and product support commitments for such items. |
18.2 | Requirements |
18.3 | Buyer's Obligation and Sellers Remedies |
18.3.1 | Any delay or failure in |
(i) | furnishing the BFE in serviceable condition at the requested delivery date, |
(ii) | complying with the Clause 18.2 or in providing the descriptive information or service representatives required by Clause 18.1.1, or |
(iii) | obtaining any required approval for such equipment under the Aviation Authorities' regulations |
18.3.2 | In addition to the consequences outlined in Clause 18.3.1, in the event of a delay or failure described in Clause 18.3.1, |
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(i) | the Seller may select, purchase and install equipment similar to the BFE at issue, in which event the Final Contract Price of the affected Aircraft will also be increased by the purchase price of such equipment, plus reasonable costs and expenses incurred by the Seller fo handling charge transportation, insurance, packaging and, if required and not already provided for in the price of the Aircraft, for adjustment and calibration; or |
(ii) | if the BFE is delayed more than [***] days beyond, or unapproved within, [***] days of the date referenced in Clause 18.1.1, then the Seller may deliver or the Buyer may elect to have the Aircraft delivered without the installation of such BFE, notwithstanding the terms of Clause 7.2 insofar as it may otherwise have applied, whereon the Seller will be relieved of all obligations to install such equipment. |
18.4 | Title and Risk of Loss |
18.5 | Disposition of BFE Following Termination |
18.5.1 | If a termination of this Agreement pursuant to the provisions of Clause 21 hereof occurs with respect to an Aircraft in which all or any part of the BFE has been installed prior to the date of such termination, the Seller will be entitled, but not required, to remove all items of BFE which can be removed without damage to the Aircraft and to undertake commercially reasonable efforts to facilitate the sale of such items of BFE to other customers, retaining and applying the proceeds of such sales to reduce Seller's damages resulting from the termination. |
18.5.2 | The Buyer will cooperate with the Seller in facilitating the sale of BFE pursuant to Clause 18.5.1 above and will be responsible for all costs incurred by the Seller in removing and facilitating the sale of such BFE. The Buyer will reimburse the Seller for all such costs within five (5) Business Days of receiving documentation of such costs from the Seller. |
18.5.3 | The Seller will notify the Buyer as to those items of BFE not sold by the Seller pursuant to Clause 18.5.1 above and, at the Seller's request, the Buyer will undertake to remove such items from the Seller' facility within thirty (30) days of the date of such notice. The Buyer will have no claim against the Seller for damage or destruction of any item of BFE removed from the Aircraft and notremoved from Seller's facility within such period. |
18.5.4 | The Buyer will have no claim against the Seller for damage to or destruction of any item of BFE damaged or destroyed in the process of being deinstalled from the Aircraft, provided that the Seller will use reasonable care in such deinstallation. |
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18.5.5 | The Buyer at no cost to the Seller will grant title to the Seller for any BFE items that cannot be removed from the Aircraft without causing damage to the Aircraft or rendering any system in the Aircraft unusable. |
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19.1 | Seller's Indemnities |
19.2 | Buyer's Indemnities |
(a) | claims for injuries to or deaths of the Buyer's directors, officers, agents or employees, or loss or damage to property of the Buyer or its employees or agents, when such losses occur during or are incidental to (i) the Buyer's exercise of its inspection rights under Clause 6; (ii) the Technical Acceptance Process described in Clause 8, (iii) the provision of Field Assistance pursuant to Clause 15, or (iv) the provision of training pursuant to Clause 16; and |
(b) | claims for injuries to or deaths of third parties, or loss of property of third parties, where such losses occur during or incidental to (i) the provision of Field Services under Clause 15 or (ii) arise out of the provision of training pursuant to Clause 16. |
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19.3 | Notice and Defense of Claims |
(a) | If any claim is made or suit is brought against a party or entity entitled to indemnification under this Clause 19 (the "Indemnitee") for damages for which liability has been assumed by the other party under this Clause 19, (the "Indemnitor"), the Indemnitee will promptly give notice to the Indemnitor and the Indemnitor (unless otherwise requested by the Indemnitee) will assume and conduct the defense, or settlement, of such suit, as the Indemnitor will deem prudent. Notwithstanding the foregoing, no settlement or compromise will be made without the prior written consent of any Indemnitee if such settlement or compromise would result in the imposition of an injunction or other equitable relief upon such Indemnitee, or if such Indemnitee is not unconditionally and irrevocably released from liabilities or obligations with respect to such suit or claim. Notice of the claim or suit will be accompanied by all information pertinent to the matter as is reasonably available to the Indemnitee and will be followed by such cooperation by the Indemnitee as the Indemnitor or its counsel may reasonably request at the expense of the Indemnitor. The Indemnitee may participate, at its own expense, with Indemnitor in the defense or appeal of any such claim or suit, with attorneys of its choosing; provided that the Indemnitor retains sole control and authority regarding any such defense, compromise, settlement, appeal, or similar action, subject to all other provisions of this Clause 19.3(a). |
(b) | If the Indemnitor fails or refuses to assume the defense of any claim or lawsuit notified to it under this Clause 19, the Indemnitee will have the right to proceed with the defense or settlement of the claim or lawsuit as it deems prudent and will have a claim over against the Indemnitor for any judgments, settlements, costs or expenses, including reasonable attorneys' fees. Further, in such event, the Indemnitor will be deemed to have waived any objection or defense to the Indemnitee's claim based on the reasonableness of any settlement. |
19.4 | Insurance |
19.4.1 | For all training periods on aircraft, the Buyer will cause the Seller, as defined in Clause 19.3 hereof, its Affiliates, and its Suppliers, and their respective insurers to be named as additional insureds under the Buyer's Comprehensive Aviation Legal Liability insurance policies, including War Risks and Allied Perils, to the extent of the Buyer's undertaking set forth in Clause 19.2. With respect to the Buyer's Hull All Risks and Hull War Risks insurances and Allied Perils, the Buyer will cause the insurers of the Buyer's hull insurance policies to waive all rights of subrogation against the Seller, as defined in Clause 19.3 hereof, its Affiliates, it Suppliers, and their insurers, to the extent of the Buyer's undertaking set forth in Clause 19.2. |
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(i) | under the Comprehensive Aviation Legal Liability Insurances, the Buyer's policies are primary and non-contributory to any insurance maintained by the Seller. |
(ii) | Such insurance, can only be cancelled or materially altered by the giving of not less than [***] days (but [***] days or such lesser period as may be customarily available in respect of War Risks and Allied Perils) prior written notice thereof to the Seller; and |
(iii) | Under any such cover, all rights of subrogation against the Seller, its Affiliates, its Suppliers and their respective insurers, have been waived to the extent of the Buyer's undertaking and specially referring to Clause 19.2 and to this Clause 19.4. |
19.4.2 | At the request of the Buyer, the Seller will furnish to the Buyer, certificates of insurance in English, evidencing the limits of liability cover and period of insurance covering the Seller's undertaking in Clause 19.1, in a form reasonably acceptable to the Buyer from the Seller's insurance broker(s) certifying that such policies have been endorsed as follows: |
(i) | the Seller's policies are primary and non-contributory to any insurance maintained by the Buyer. |
(ii) | Such insurance can only be cancelled or materially altered by the giving of not less than [***] days prior written notice thereof to the Buyer. |
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20 | - ASSIGNMENTS AND TRANSFERS |
20.1 | Assignments by Buyer |
20.2 | Assignments on Sale, Merger or Consolidation |
(i) | the surviving or acquiring entity is organized and existing under the laws of the United States; |
(ii) | the surviving or acquiring entity has executed an assumption agreement, in form and substance reasonably acceptable to the Seller, agreeing to assume all of the Buyer's Obligations under this Agreement; |
(iii) | at the time, and immediately following the consummation, of the merger, consolidation or sale, no event of default exists or will have occurred and be continuing; |
(iv) | there exists with respect to the surviving or acquiring entity no basis for a Termination Event within the meaning of Clause 21 of this Agreement; |
(v) | the surviving or acquiring entity holds an Operating Certificate issued by the [FAA or relevant Aviation Authority] at the time, and immediately following the consummation, of such sale, merger or consolidation; and |
(vi) | following the sale, merger or consolidation, in a financial condition at least equal to that of the Buyer at time of execution of the Agreement. |
20.3 | Designations by Seller |
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20.4 | Transfer of Rights and Obligations upon Reorganization |
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21 | TERMINATION |
21.1 | Termination Events |
(1) | The Buyer or any of its Affiliates will commence in any jurisdiction any case, proceeding or other action with respect to the Buyer or any of its Affiliates or their respective properties relating to bankruptcy, insolvency, reorganization, winding-up, liquidation, dissolution or other relief from, or with respect to, or readjustment of, its debts or obligations. |
(2) | An action is commenced in any jurisdiction seeking the appointment of a receiver, trustee, custodian or other similar official for the Buyer or any of its Affiliates or for all or any substantial part of their respective assets, and such action remains unstayed, undismissed or undischarged for sixty (60) days, or the Buyer or any of its Affiliates makes a general assignment for the benefit of its creditors. |
(3) | An action is commenced in any jurisdiction against the Buyer or any of its Affiliates seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of their respective assets, and such action remains unstayed, undismissed or undischarged for sixty (60) days. |
(4) | The Buyer or any of its Affiliates becomes the object, in any jurisdiction, of a case, proceeding or action similar or analogous to any of the events mentioned in Sub-clause 21.1.1(1), (2) or (3). |
(5) | The Buyer or any of its Affiliates does not, or is unable to, or admits in writing its inability to, pay its debts as they become due. |
(6) | The Buyer commences negotiations with significant creditors, existing or potential, with the intention of restructuring all or substantially all of either's outstanding obligations or in preparation for a bankruptcy filing under the U.S. Bankruptcy Code |
(7) | The Buyer or any of its Affiliates fails to make (i) any payment required to be made under this Agreement or any other material agreement between the Buyer or any of its Affiliates and the Seller or any of its Affiliates when such payment is due, (ii) any Predelivery Payment required to be made under this Agreement when such payment is due, or (iii) payment of all or part of the Final Contract Price of any Aircraft required to be made under this Agreement |
(8) | The Buyer repudiates, cancels or terminates this Agreement in whole or in part. |
(9) | The Buyer defaults in its obligation to take delivery of an Aircraft as provided in this Agreement. |
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(10) | The Buyer or any of its Affiliates defaults in the observance or performance of any other covenant, undertaking or obligation contained in this Agreement or any other material agreement between the Buyer or its Affiliates, on the one hand, and the Seller or its Affiliates on the other hand, provided that, if such breach or default is capable of being cured, such breach or default is not cured within any specified cure period, or if no cure period is specified, within ten (10) days of such breach or default. |
(11) | Any other event that the parties will have agreed in writing constitutes a Termination Event hereunder. |
21.1.2 | If a Termination Event occurs, the Buyer will be in material breach of this Agreement, and the Seller will have the right to resort to any remedy under applicable law, and may, without limitation, by written notice to the Buyer, immediately: |
(1) | Elect to: (i) suspend its performance under this Agreement with respect to any or all Aircraft and/or (ii) reschedule the Schedule Delivery Month of any or all Aircraft remaining to be delivered under this Agreement, (iii) reschedule the date for performance under this Agreement with respect to any or all equipment, Aircraft services, data and other items, and/or (iv) cancel or terminate this Agreement (a "Termination") with respect to any or all Aircraft, and/or equipment, services, data and/or other items related thereto; |
(2) | In addition, claim and receive payment from the Buyer of a sum equal to Seller's actual damages resulting from Seller's exercise of the remedies set forth in the foregoing 21.1.2 (1) (i), (ii) or (iii) and, in the case of a Termination under the foregoing 21.1.2(iv) only, the Seller shall not be entitled to claim actual damages, but shall be entitled to receive payment from the Buyer, as liquidated damages and not as a penalty, an amount equal to, for each Affected Aircraft (as defined below), the sum of (A) the greater of (a) all Predelivery Payments previously received by the Seller from the Buyer under this Agreement with respect to such Aircraft and (b) the amount set forth as follows: |
a. | if the Applicable Date (as defined below) occurs before the first day of the 36th month prior to the Scheduled Delivery Month of such Aircraft: one percent (1%) of the Escalated Price per such Aircraft, |
b. | if the Applicable Date occurs on or after the first day of the 36th month but before the first day of the 30th month prior to the Scheduled Delivery Month of such Aircraft: four percent (4%) of the Escalated Price per such Aircraft, |
c. | if the Applicable Date occurs on or after the first day of the 30th month but before the first day of the 24th month prior to the Scheduled Delivery Month of such aircraft: 10 percent (10%) of the Escalated Price per such Aircraft, |
d. | if the Applicable Date occurs on or after the first day of the 24th month but before the first day of the 18th month prior to the Scheduled Delivery Month of such Aircraft: fifteen percent (15%) of the Base Price per such Aircraft, such Escalated Price per such Aircraft, |
e. | if the Applicable Date occurs on or after the first day of the 18th month but before the first day of the 12th month prior to the Scheduled Delivery Month of such Aircraft: twenty percent (20%) of the Escalated Price per such Aircraft, |
f. | if the Applicable Date occurs on or after the first day of the 12th month but before the first day of the 9th month prior to the Scheduled Delivery Month of such Aircraft: twenty-five percent (25%) of the Escalated Price per such Aircraft, and |
g. | if the Applicable Date occurs on or after the first day of the 9th month but before and including the Delivery Date of such Aircraft: thirty-five percent (35%) of the Escalated Price per such Aircraft, and |
(B) | is interest on the foregoing amounts at the rate of 1.5% per month from the relevant Applicable Date to the date of actual payment of such amount. |
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21.1.3 | Actual or liquidated damages shall be payable by Buyer promptly, and in any event within ten (10) days of the date of written notice and demand therefor from Seller, such demand to set forth in reasonable detail the calculation of such actual or liquidated damages and shall identify the Termination Event upon which the Seller is relying. The parties agree that the remedy of liquidated damages is not to be denied to the Seller due to the inability of Seller to deliver a notice and demand for payment thereof due to the operation of law following a bankruptcy or other Termination Event under Sub-clause 21.1(1) - (4). The parties further agree that in circumstances where a Termination Event has occurred and the Seller does not cancel this Agreement as to any or all Aircraft, but instead seeks to recover its actual damages resulting therefrom, the amount of actual damages payable by the Buyer shall not exceed the amount of liquidated damages that could have been claimed by Seller pursuant to Clause 21.2 (2) had the Seller elected to claim, as a result of such Termination Event, liquidated damages pursuant to Clause 21.2(2). |
21.1.4 | The parties to this Agreement are commercially sophisticated parties represented by competent counsel. The parties expressly agree and declare that damages for material breach of this Agreement by the Buyer resulting in a Termination of this Agreement as to any or all Aircraft have been liquidated at amounts which are reasonable in light of the anticipated or actual harm caused by the Buyer's breach, the difficulties of proof of loss and the nonfeasibility of otherwise obtaining an adequate remedy. It is understood and agreed by the parties that the amount of liquidated damages set forth herein is the total amount of monetary damages, no more and no less, to which the Seller will be entitled for and with respect to any Aircraft as recovery for material breach of this Agreement by Buyer resulting in a Termination by the Seller of this Agreement as to such Aircraft. |
21.1.5 | The terms "Affected Aircraft", "Applicable Date and "Escalated Price" are defined as follows: |
(i) | "Affected Aircraft" - (a) any or all Aircraft with respect to which the Seller has cancelled or terminated this Agreement pursuant to Sub-clause 21.1.2(1)(iv). |
(ii) | "Applicable Date" - for any Affected Aircraft the date of the Termination Event which the Seller specifies in its notice and demand for payment of liquidated damages delivered under Sub-Clause 21.1(3). |
(iii) | "Escalated Price" -·the sum of (i) the Base Price of the Airframe (set forth in Clause 3.1.1 hereof), (ii) the Base Price of SCNs and MSCNs entered into after the date of this Agreement, and (iii) the reference Price of the Propulsion systems, all as escalated to the Applicable Date in accordance with the provisions of Clause 4 of this Agreement. |
21.1.6 | Promptly upon obtaining knowledge of the occurrence of a Termination Event by the Buyer, the Buyer will notify the Seller of such occurrence in writing, provided, that |
Spirit Airlines - A320 FAMILY - PA | 88 |
any failure by the Buyer to notify the Seller will not prejudice the Seller's rights or remedies hereunder. |
21.2 | If at any time prior to Scheduled Delivery Date of an Aircraft, the Seller has reasonable grounds for insecurity as to the ability of the Buyer to perform its obligation to take Delivery of such Aircraft, then the Seller will send the Buyer a written demand for adequate assurance of performance. If adequate assurance acceptable to the Seller is not received within thirty days following the date of such written demand, then the Seller will have the right to either (a) exercise the remedies provided under Section 2-609 of the Uniform Commercial Code or (b) exercise any of its remedies under Clause 21.2 of this Agreement. |
21.3 | [***] |
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22- | MISCELLANEOUS PROVISIONS |
22.1 | Data Retrieval |
22.2 | Notices |
The Seller will be addressed at: |
2, rond-point Maurice Bellonte |
31700 BLAGNAC FRANCE |
Attention: Director - Contracts |
Telephone: 33 05 61 30 40 12 |
Telecopy: 33 05 61 30 40 11 |
The Buyer will be addressed at: |
Spirit Airlines, Inc. |
2800 Executive Way |
Miramar, FL 33025 |
Attention: Legal Department /General Counsel |
Telephone: 954-447-7914 |
Fax: 954-447-7854 |
From time to time, the party receiving the notice or request may designate another address or another person. |
22.3 | Waiver |
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22.4 | INTERPRETATION AND LAW |
22.4.1 | The Buyer for itself and its successors and assigns hereby designates and appoints the Secretary of the Buyer duly elected from time to time as its legal agent and attorney-in-fact upon whom all processes against the Buyer in any suit, action or proceeding in respect of any matter as to which it has submitted to jurisdiction under Clause 22.4 may be served with the same effect as if the Buyer were a corporation organized under the laws of the State of New York and had lawfully been served with such process in such state, it being understood that such designation and appointments will become effective without further action on the part of the Buyer or its Corporate Secretary. |
22.4.2 | The assumption in Clause 22.4.1 above made for the purpose of effecting the service of process will not affect any assertion of diversity by either party hereto |
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22.4.3 | Service of process in any suit, action or proceeding in respect of any matter as to which the Seller or the Buyer has submitted to jurisdiction under Clause 22.4 may be made on the Seller by delivery of the same personally or by dispatching the same via Federal Express, UPS, or similar international air courier service prepaid to, CT Corporation, New York City offices as agent for the Seller, it being agreed that service upon CT Corporation will constitute valid service upon the Seller or by any other method authorized by the laws of the State of New York, and (ii) may be made on the Buyer by delivery of the same personally or by dispatching the same by Federal Express, UPS, or similar international air courier service prepaid, return receipt requested to: Corporate Secretary, Spirit Airlines, Inc. at 2800 Executive Way, Miramar, FL 33025, or by any other method authorized by the laws of the State of New York; provided in each case that failure to deliver or mail such copy will not affect the validity or effectiveness of the service of process. |
22.5 | Waiver of Jury Trial |
22.6 | No Representations outside of this Agreement. |
22.7 | Confidentiality |
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the Buyer with any governmental agency and will make such applications as will be necessary to implement the foregoing. With respect to any public disclosure or filing, the Buyer agrees to submit to the Seller a copy of the proposed document to be filed or disclosed and, to the extent legally permissible, to give the Seller a reasonable period of time in which to review said document. The Buyer and the Seller will agree to any public disclosure or filing prior to the making of any such public disclosure or filing, permitted hereunder, of this Agreement or the terms and conditions thereof. Each party will be responsible for any and all respective expenses incurred to maintain the confidentiality of this Agreement. |
22.8 | Severability |
22.9 | Alterations to Contract |
22.10 | Inconsistencies |
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22.11 | Language |
22.12 | Headings |
22.13 | Counterparts |
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23. | CERTAIN REPRESENTATIONS OF THE PARTIES |
23.1 | Buyer's Representations |
The Buyer represents and warrants to the Seller: |
(i) | the Buyer is a corporation organized and existing in good standing under the laws of the State of Delaware and has the corporate power and authority to enter into and perform its obligations under this Agreement; |
(ii) | neither the execution and delivery by the Buyer of this Agreement, nor the consummation of any of the transactions by the Buyer contemplated thereby, nor the performance by the Buyer of the obligations thereunder, constitutes a breach of any agreement to which the Buyer is a party or by which its assets are bound; |
(iii) | this Agreement has been duly authorized, executed and delivered by the Buyer and constitutes the legal, valid and binding obligation of the Buyer enforceable against the Buyer in accordance with its terms. |
23.2 | Seller's Representations |
(i) | the Seller is a société à responsabilité limitée organized and existing in good standing under the laws of the Republic of France and has the corporate power and authority to enter into and perform its obligations under the Agreement; |
(ii) | neither the execution and delivery by the Seller of this Agreement, nor the consummation of any of the transactions by the Seller contemplated thereby, nor the performance by the Seller of the obligations thereunder, constitutes a breach of any agreement to which the Seller is a party or by which its assets are bound; |
(iii) | this Agreement has been duly authorized, executed and delivered by the Seller and constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms. |
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AVSA, S.A.R.L. | ||||||||
By: | /s/ illegible | |||||||
Title: | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ illegible |
Title: |
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AVSA SPECIFICATION CHANGE NOTICE (SCN) | SCN No. Issue 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: 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: |
Spirit Airlines - A320 Family | Page 1 of 2 |
AVSA SPECIFICATION CHANGE NOTICE (SCN) | SCN No. Issue Dated Page No. |
Spirit Airlines - A320 Family | Page 2 of 2 |
EXHIBIT B-2 | ||||||||||||||||||||
![]() | Airline | |||||||||||||||||||
MANUFACTURER'S SPECIFICATION | MSCN Number | |||||||||||||||||||
CHANGE NOTICE | Issue | |||||||||||||||||||
Dated | ||||||||||||||||||||
(MSCN) | Page | 1 of 3 |
Manufacturer's Weight Empty Change | : | |||||||||||||||||||
Operational Weight Empty Change | : | |||||||||||||||||||
Allowable Payload Change | : |
This change will be effective on Provided MSCN is not rejected by | AIRCRAFT N° | and subsequent. |
Buyer Approval | Seller Approval | |||||||||||||||||||||||||
By: | By: | |||||||||||||||||||||||||
Date: | Date: |
EXHIBIT B-2 | ||||||||||||||||||||
![]() | Airline | |||||||||||||||||||
MANUFACTURER'S SPECIFICATION | MSCN Number | |||||||||||||||||||
CHANGE NOTICE | Issue | |||||||||||||||||||
Dated | ||||||||||||||||||||
(MSCN) | Page | 2 of 3 |
EXHIBIT B-2 | ||||||||||||||||||||
![]() | Airline | |||||||||||||||||||
MANUFACTURER'S SPECIFICATION | MSCN Number | |||||||||||||||||||
CHANGE NOTICE | Issue | |||||||||||||||||||
Dated | ||||||||||||||||||||
(MSCN) | Page | 3 of 3 |
1. | The Items of primary and auxiliary structure including but not limited to the list below are covered by the Service Life Policy described in Clause 12.2 of the Agreement. |
2. | WINGS - CENTER AND OUTER WING BOX |
Spirit Airlines - A320 Family | Exh. C-1 |
3. | FUSELAGE |
4. | STABILIZERS |
Spirit Airlines - A320 Family | Exh. C-2 |
5. | Bearing and roller assemblies, bearing surfaces, bushings, fittings other than those listed above, 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. |
Spirit Airlines - A320 Family | Exh. C-3 |
RECEIPT AND ACCEPTANCE OF THE ABOVE- DESCRIBED A319 AIRCRAFT ACKNOWLEDGED |
By: |
Title: |
Date: |
Location: |
Spirit Airlines - A320 Family | Exh. D-1 |
RECEIPT AND ACCEPTANCE OF THE ABOVE- DESCRIBED A320 AIRCRAFT ACKNOWLEDGED |
By: |
Title: |
Date: |
Location: |
Spirit Airlines - A320 Family | Exh. D-1 |
RECEIPT AND ACCEPTANCE OF THE ABOVE- DESCRIBED A321 AIRCRAFT ACKNOWLEDGED |
By: |
Title: |
Date: |
Location: |
Spirit Airlines - A320 Family | Exh. D-1 |
MANUFACTURER OF AIRFRAME: | MANUFACTURER OF ENGINES: | |||||||
AIRBUS S.A.S. | [ ] | |||||||
MODEL: A319-100 | MODEL: [ ] | |||||||
MANUFACTURER'S | SERIAL NUMBERS: | |||||||
SERIAL NUMBER: [ ] | LH : [ ] | |||||||
RH : [ ] | ||||||||
REGISTRATION NO: [ ] |
AVSA, S.A.R.L. |
By: |
Title: |
Signature: |
Spirit Airlines - A320 Family | Exh. E-1 |
MANUFACTURER OF AIRFRAME: | MANUFACTURER OF ENGINES: | |||||||
AIRBUS S.A.S. | [ ] | |||||||
MODEL: A320-200 | MODEL: [ ] | |||||||
MANUFACTURER'S | SERIAL NUMBERS: | |||||||
SERIAL NUMBER: [ ] | LH : [ ] | |||||||
RH : [ ] | ||||||||
REGISTRATION NO: [ ] |
AVSA, S.A.R.L. |
By: |
Title: |
Signature: |
Spirit Airlines - A320 Family | Exh. E-1 |
MANUFACTURER OF AIRFRAME: | MANUFACTURER OF ENGINES: | |||||||
AIRBUS S.A.S. | [ ] | |||||||
MODEL: A321-200 | MODEL: [ ] | |||||||
MANUFACTURER'S | SERIAL NUMBERS: | |||||||
SERIAL NUMBER: [ ] | LH : [ ] | |||||||
RH : [ ] | ||||||||
REGISTRATION NO: [ ] |
AVSA, S.A.R.L. |
By: |
Title: |
Signature: |
Spirit Airlines - A320 Family | Exh. E-1 |
1. | Definitions |
2. | Grant |
3. | Personal License |
Spirit Airlines - A320 Family | Exh. F, App.1-1 |
4. | Copies |
5. | Term |
6. | Conditions of Use |
Spirit Airlines - A320 Family | Exh. F, App.1-2 |
7. | Training |
Spirit Airlines - A320 Family | Exh. F, App.1-3 |
8. | Proprietary Rights |
9. | Copyright Indemnity |
10. | Confidentiality |
11. | Warranty |
Spirit Airlines - A320 Family | Exh. F, App.1-4 |
12. | Liability and Indemnity |
Spirit Airlines - A320 Family | Exh. F, App.1-5 |
13. | Excusable Delays |
14. | Termination |
Spirit Airlines - A320 Family | Exh. F, App.1-6 |
15. | General Provisions |
15.1. | This Software License or part thereof will not be assigned to a third party without the prior written consent of the other party except that the Licensor may assign this License to any of the Licensor's Members or Affiliates. |
15.2 | This Software License will be governed by the laws of the State of New York, USA. |
15.3 | In the event that any provision of this Software License should for any reason be held ineffective or unenforceable, such provision shall be deemed deleted from this License and the remainder of this Software License shall remain in full force and effect. The invalid provision shall be replaced by such valid one as the parties would have chosen had they been aware of such invalidity. |
15.4 | All notices and requests required or authorized hereunder shall be given in writing either by registered mail (return receipt requested) or by telefax. In the case of any such notice or request being given by registered mail, the date upon which the answerback is recorded by the addressee or, in case of a telefax, the date upon which the answerback is recorded by the sender's telefax machine, shall be deemed to be the effective date of such notice or request. |
Spirit Airlines - A320 Family | Exh. F, App.1-7 |
Spirit Airlines - A320 Family | Exh. F, App.2-1 |
1. | DEFINITIONS |
Spirit Airlines - A320 Family | Exh. F, App.2-2 |
Spirit Airlines - A320 Family | Exh. F, App.2-3 |
2. | GRANT OF LICENSE |
3. | LIMITATION OF RIGHTS |
Spirit Airlines - A320 Family | Exh. F, App.2-4 |
4. | TECHNICAL CHARACTERISTICS/ CONFIGURATION CHANGES |
5. | ADMINISTRATOR AND AUTHORIZED USERS |
6. | DATABASE AVAILABILITY |
Spirit Airlines - A320 Family | Exh. F, App.2-5 |
7. | ELECTRONIC LOGS |
8. | ELECTRONIC SIGNATURE |
9. | CERTIFICATES |
Spirit Airlines - A320 Family | Exh. F, App.2-6 |
10. | PROTECTION OF INTELLECTUAL PROPERTY RIGHTS |
11. | INTELLECTUAL PROPERTY RIGHTS INDEMNITY |
12. | PRICE AND PAYMENT |
13. | WARRANTY |
Spirit Airlines - A320 Family | Exh. F, App.2-7 |
Spirit Airlines - A320 Family | Exh. F, App.2-8 |
14. | NONDISCLOSURE |
15. | PERSONAL DATA PROTECTION |
16. | EXCUSABLE DELAYS |
Spirit Airlines - A320 Family | Exh. F, App.2-9 |
17. | TERMINATION |
18. | GENERAL PROVISIONS |
Spirit Airlines - A320 Family | Exh. F, App.2-10 |
Spirit Airlines - A320 Family | Exh. F, App.2-11 |
AIRBUS NORTH AMERICA CUSTOMER SERVICES, INC. | ||||||||
By: | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: |
Spirit Airlines - A320 Family | Exh. F, App.2-12 |
Spirit Airlines - A320 Family | Exh. F, App.2, Att. 1-1 |
• | Service Bulletins - issued since beginning of 1993 (SB's after July 1997 in SGML; SB's between 1993 and July 1997 in PDF) |
• | Modification Information Document (MID) |
• | All Operators Telex (AOT) |
• | Flight Operations Telex (FOT) |
• | Service Information Letter (SIL) |
• | Consignes de Navigabilité (CN) |
• | Airworthiness Directives (AD) |
• | Technical follow-up (TFU) |
• | Operators Information Telex (OIT) |
• | The aircraft life history |
• | The main monthly operational reliability characteristics for each operator (such as Aircraft in service, daily utilization, average flight duration, Dispatch and Operational Reliability) |
• | Engine removal reliability data |
• | ETOPS operations (if applicable) |
Spirit Airlines - A320 Family | Exh. F, App.2, Att. 1-2 |
Spirit Airlines - A320 Family | Exh. F, App.2, Att. 1-3 |
1. | Airbus Industrie Drawing Access (AIDA) |
• | Mechanical Drawings for all Airbus aircraft types. |
• | Data available: Drawing pictures (in raster format (TIFF/CCITTG4)) and Parts List / Parts Usage (in PDF). |
• | Data access: |
• | Access control: Information applicable to user fleet, |
• | Direct access by drawing number, Parts List or Part Number, |
• | Top down navigation by using the Part Lists, |
• | Bottom up navigation by using the Part Usage, |
• | Printing and downloading of any drawing, |
• | Back up service: fax copy of the data. |
2. | Flight Crew Operating Manual (FCOM) Service |
• | Delivery on CD-ROM's of the 4 volumes of the FCOM, under a specific format (HTML format) allowing a smart consultation on portable PC's of the manual. |
• | Possible customization of the manual, using a tool delivered to the same CD-ROM and allowing the customer to create its own CD-ROM's for its pilots or make accessible the customized FCOM through its internal network. |
• | This service offered today through LPC (Less Paper Cockpit) is now accessible through Airbus On-Line Services. |
• | Possibility for end-users to download onto their personal computer the latest TRs and OEBs released by Airbus. Immediately after the latter are downloaded, the consultation process on the personal computer takes the information contained in the FCOM CD-ROM as baseline and amends this information with the TRs' and OEBs' information. |
• | Possibility for users to provide Airbus with feedback through an e-mail tool integrated within the application |
Spirit Airlines - A320 Family | Exh. F, App.2, Att. 1-4 |
1. | Workstation Specifications |
• | Hardware requirements |
• | PC Pentium 200 MHz with 128 MB RAM (256 MB recommended) |
• | 17 inches (20 inches recommended for Mechanical Drawings service) screen |
• | Screen resolution 1 024X768 with 64K colors |
• | 1 GB hard drive |
• | Modem 56Kbps V90 if using dial up or Ethernet board through WAN |
• | Printer 300 dpi Laser A3/A4, Adobe compliant |
• | Software requirements |
• | Windows 95, 98, NT4 |
• | Netscape Navigator 4.51 or 4.7 US version Internet Explorer 5.01 SP1 or 5.5 SP1/SP2 US version |
• | For MSIE the minimum requirement for the Java Virtual Machine (JVM) is 5.0 Release 5.0.0.3 167 |
• | Winzip 7.0 |
• | Browser PDF plug-in: Acrobat Reader 4.05 or higher |
• | TIFF browser plug-in recommendations: |
• | ViewDirector Prizm 2.3 |
• | CSView 150 |
2. | Network Specifications |
• | SITA AeroNet |
• | Internet |
• | ISDN/PSTN |
• | Direct lines (leased lines) |
Spirit Airlines - A320 Family | Exh. F, App.2, Att. 1-5 |
Services | Number of Users | |||||||||||||||||||||||||||||||||||||
1 to 10 | 11 to 25 | 26 to 50 | ||||||||||||||||||||||||||||||||||||
FCOM | 128 Kbps | 256 Kbps | 512 Kbps | |||||||||||||||||||||||||||||||||||
ETDS | 128 Kbps | 256 Kbps | 512 Kbps | |||||||||||||||||||||||||||||||||||
Drawings | 256 Kbps | 512 Kbps | 1 MKbps |
• | If you do not have the exact data rate as in the above table, choose the nearest proposed bandwidth which maximizes your data rate. |
• | To access more than one service, add the number of users and maximize the data rate selecting higher service used (considering that Mechanical Drawings is the dimensioning service compare to ETDS and FCOM). |
3. | Certificate Specification |
Spirit Airlines - A320 Family | Exh. F, App.2, Att. 1-6 |
• | One (1) or two (2) Administrator certificates and a reasonable quantity of end-user certificates, depending on the Airbus fleet operated by the company. |
• | Basic Services, (free of charge) |
• | Technical Data in PDF Format: free of charge when [the Company] already subscribed to the revision service (valid Purchase order or contractual clause) |
• | Optional Services: free of charge when already covered by a Purchase Order or a valid contractual clause. |
For and on behalf of [the Company] | ||
Signature | ||
Name | ||
Title | ||
Date |
Spirit Airlines - A320 Family | Exh. F, App.2, Att. 2-1 |
• | One (1) or two (2) Administrator certificates and a reasonable quantity of end-user certificates, depending on the Airbus fleet operated by the company. |
• | Basic Services, (free of charge) |
• | Technical Data in PDF Format: free of charge when [the Company] already subscribed to the revision service (valid Purchase order or contractual clause) |
• | Optional Services: free of charge when already covered by a Purchase Order or a valid contractual clause. |
For and on behalf of [the Company] | ||
Signature | ||
Name | ||
Title | ||
Date |
Spirit Airlines - A320 Family | Exh. F, App.2, Att. 2-1 |
1. | ENGINEERING DOCUMENTS |
1.1 | Installation and Assembly Drawings (IAD)-C |
1.2 | Drawing Number Index (DNI)-C |
1.3 | Process and Material Specification (PMS) |
1.4 | Standards Manual (SM) |
1.5 | Electrical Load Analysis (ELA) |
Spirit Airlines - A320 Family | Exh. F-1 |
2. | MAINTENANCE AND ASSOCIATED MANUALS |
2.1 | APU Build-up Manual (ABM) |
2.2 | Aircraft Maintenance Manual (AMM)-C |
2.3 | Aircraft Schematics Manual (ASM)-C |
2.4 | Aircraft Wiring Manual (AWM)-C |
2.5 | Aircraft Wiring Lists (AWL)-C |
2.6 | Component Location Manual (CLM) |
Spirit Airlines - A320 Family | Exh. F-2 |
2.7 | Consumable Material List (CML) |
2.8 | Duct Repair Manual (DRM) |
2.9 | Fuel Pipe Repair Manual (FPRM) |
2.10 | Illustrated Parts Catalog (IPC)-C |
2.11 | Illustrated Parts Catalog (power plant) (PIPC)-C |
2.12 | Illustrated Tool and Equipment Manual (TEM) |
2.13 | Maintenance Facility Planning (MFP) |
2.14 | Maintenance Planning Document (MPD) |
2.15 | Support Equipment Summary (SES) |
Spirit Airlines - A320 Family | Exh. F-3 |
2.16 | Tool\Equipment Drawings (TED) |
2.17 | Tool and Equipment Drawing Index (TEI) |
2.18 | Tool and Equipment Bulletin (TEB) |
2.19 | Trouble Shooting Manual (TSM)-C |
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 troubleshooting 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) |
3.2 | Aircraft Recovery Manual (ARM) |
Spirit Airlines - A320 Family | Exh. F-4 |
3.3 | Cargo Loading System Manual (CLS) |
3.4 | Crash Crew Chart (CCC) |
3.5 | List of Radioactive and Hazardous Elements (LRE) |
3.6 | List of Applicable Publications (LAP)-C |
3.7 | Livestock Transportation Manual (LTM) |
3.8 | Service Bulletins (SB)-C |
3.9 | Service Information Letters (SIL) |
3.10 | Transportability Manual (TM) |
3.11 | Supplier Product Support Agreements (SPSA) |
Spirit Airlines - A320 Family | Exh. F-5 |
3.12 | Vendor Information Manual (VIM) |
3.13 | Vendor Information Manual (GSE) (VIM/GSE) |
4. | OPERATIONAL MANUALS |
4.1 | Abnormal\Emergency Check List\Quick Reference Handbook (CL\QRH)-C |
4.2 | FAA Approved Flight Manual (FM)-C |
4.3 | Flight Crew Operating Manual (FCOM)-C |
4.4 | Master Minimum Equipment List (MMEL) |
4.5 | Performance Engineering Program (PEP) |
• | regulatory take-off and landing performance, |
Spirit Airlines - A320 Family | Exh. F-6 |
• | 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. |
4.6 | Performance Program Manual (PPM) |
4.7 | Weight and Balance Manual (WBM) and |
• | Delivery Weighing Report, |
• | Equipment List, |
5. | OVERHAUL DATA |
5.1 | Cable Fabrication Manual (CFM) |
5.2 | Component Documentation Status (CDS)-C |
5.3 | Component Evolution List (CEL) |
Spirit Airlines - A320 Family | Exh. F-7 |
• | part number |
• | FSCM |
• | ATA reference. |
5.4 | Component Maintenance Manual Manufacturer (CMMM) |
5.5 | Component Maintenance Manual Vendor (CMMV) |
6. | STRUCTURAL MANUALS |
6.1 | Nondestructive Testing Manual (NTM) |
6.2 | Structural Repair Manual (SRM) |
Spirit Airlines - A320 Family | Exh. F-8 |
CD-A | CD-ROM: Advanced Consultation and Navigation System |
CD-P | CD-ROM: in PDF - Portable Document Format |
D | DISKETTE (Floppy Disk) |
DD | DIGITAL DATA. Stands generally for SGML format in MS Word Format. |
DVD | DIGITAL VERSATILE DISK. |
OL-A | ON-LINE through AOLS (Airbus On-Line Services): Advanced Consultation and Navigation System |
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. |
SGML | STANDARD GENERALIZED MARK-UP LANGUAGE. Which allow further data processing by the Buyer. |
Spirit Airlines - A320 Family | Exh. F-9 |
C | CUSTOMIZED. Refers to manuals which are customized to specific Airbus customer/ operator fleet or aircraft. |
G | GENERIC. Refers to manuals which are for all aircraft types/models/series. |
E | ENVELOPE. Refers to manuals which are not customized. |
P | PRELIMINARY. Refers to preliminary data or manuals which may consist of either: |
• | one time issue not maintained by revision service, or |
• | preliminary issues maintained by revision service until final manual or data delivery, or |
• | supply of best available data under final format with progressive completion through revision service. |
Spirit Airlines - A320 Family | Exh. F-10 |
NOMENCLATURE | Abbr | Form | Type | ATA | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||
OPERATIONAL MANUALS AND DATA | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Flight Crew Operating Manual | FCOM | P2 | C | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||
FCOM | CD-A | C | NO | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
FCOM | OL-A | C | NO | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
FCOM | SGML | C | NO | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Flight Manual | FM | P1 | C | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||
Master Minimum Equipment List | MMEL | P2 | C | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||
MMEL | SGML | C | NO | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Quick Reference Handbook | QRH | P2 | C | NO | [***] | [***] | [***] |
Spirit Airlines - A320 Family | Exh. F-11 |
Trim Sheet | TS | DD | C | NO | * | **** | * | **** | * | **** | ||||||||||||||||||||||||||||||||||||||||||||||||||||
Weight and Balance Manual | WBM | P1 | C | YES | * | **** | * | **** | * | **** | ||||||||||||||||||||||||||||||||||||||||||||||||||||
Performance Engineer's Programs | PEP | CD-A | C | NO | * | **** | * | **** | * | **** | ||||||||||||||||||||||||||||||||||||||||||||||||||||
PEP | OL-A | C | NO | * | **** | * | **** | * | **** | |||||||||||||||||||||||||||||||||||||||||||||||||||||
Performance Programs Manual | PPM | CD-A | C | NO | * | **** | * | **** | * | **** |
WB = Wide Body: A310/A300-600 | SA = Single Aisle: A318/A319/A320/A321 | LR = Long range: A330/A340 |
Spirit Airlines - A320 Family | Exh. F-12 |
NOMENCLATURE | Abbr | Form | Type | ATA | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
MAINTENANCE AND ASSOCIATED MANUALS | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Aircraft Maintenance Manual | AMM | DVD | C | YES | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
AMM | CD-P | C | YES | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
AMM | SGML | C | YES | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Aircraft Schematics Manual | ASM | CD-P | C | YES | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
ASM | SGML | C | YES | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Aircraft Wiring Lists | AWL | CD-P | C | YES | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
AWL | SGML | C | YES | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Aircraft Wiring Manual | AWM | CD-P | C | YES | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
AWM | SGML | C | YES | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Component Location Manual | CLM | CD-P | C | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Consumable Material List | CML | CD-P | G | YES | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Duct Repair Manual | DRM | CD-P | E | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Ecam System Logic Data | ESLD | CD-P | E | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Electrical Load Analysis | ELA | PDF/R TF/XLS | C | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Electrical Standard Practices Manual | ESPM | CD-P | G | YES | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
ESPM | SGML | G | YES | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Electrical Standard Practices booklet | ESP | P2 | G | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Flight Data Recording Parameter Library | FDRPL | CD-A | E | NO | [***] | [***] | [***] |
WB = Wide Body: A310/A300-600 | SA = Single Aisle: A318/A319/A320/A321 | LR = Long range: A330/A340 |
Spirit Airlines - A320 Family | Exh. F-13 |
NOMENCLATURE | Abbr | Form | Type | ATA | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
MAINTENANCE AND ASSOCIATED MANUALS | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Fuel Pipe Repair Manual | FPRM | CD-P | G | NO | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
NOMENCLATURE | Abbr | Form | Type | ATA | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
MAINTENANCE AND ASSOCIATED MANUALS | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Illustrated Parts Catalog (Airframe)/Additional Cross Reference Table | IPC/ACRT | DVD | C | YES | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
IPC/ACRT | CD-P | C | YES | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
IPC/ACRT | SGML | C | YES | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Illustrated Parts Catalog (Power Plant) | PIPC | CD-P | C | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Maintenance Facility Planning | MFP | CD-P | E | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Maintenance Planning Document | MPD | CD-P | E | YES | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Maintenance Review Board | MRBR | P2 | E | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Support Equipment Summary | SES | CD-P | G | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Tool and Equipment Bulletins | TEB | OL-A | E | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Tool and Equipment Drawings | TED | OL-A | E | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Tool and Equipment Index | TEI | CD-P | E | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Illustrated Tool and Equipment Manual | TEM | CD-P | E | YES | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Engineering Documentation Combined Index | EDCI | DVD | C | NO | [***] | [***] | [***] |
Spirit Airlines - A320 Family | Exh. F-14 |
Trouble Shooting Manual | TSM | SGML | C | YES | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||
TSM | DVD | C | YES | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||
TSM | CD-P | C | YES | [***] | [***] | [***] |
WB = Wide Body: A310/A300-600 | SA = Single Aisle: A318/A319/A320/A321 | LR = Long range: A330/A340 |
Spirit Airlines - A320 Family | Exh. F-15 |
NOMENCLATURE | Abbr | Form | Type | ATA | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
STRUCTURAL MANUALS | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Nondestructive Testing Manual | NTM | CD-P | E | YES | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Nacelle Structural Repair Manual | NSRM | CD-P | E | YES | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Structural Repair Manual | SRM | CD-P | E | YES | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
SRM | SGML | E | YES | [***] | [***] | [***] |
Spirit Airlines - A320 Family | Exh. F-16 |
NOMENCLATURE | Abbr | Form | Type | ATA | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
OVERHAUL DATA | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Component Documentation Status | CDS | D | C | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Component Evolution List | CEL | CD-P | G | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Component Maintenance Manual - Manufacturer | CMMM | CD-P | E | YES | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Component Maintenance Manual - Vendor | CMMV | CD-P | E | YES | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
CMMV | P2 | E | YES | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cable Fabrication Manual | CFM | CD-P | E | NO | [***] | [***] |
Spirit Airlines - A320 Family | Exh. F-17 |
NOMENCLATURE | Abbr | Form | Type | ATA | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||
ENGINEERING DOCUMENTS | ||||||||||||||||||||||||||||||||||||||||||||
Installation and Assembly Drawings | IAD | OL-A | C | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||
Process and Material Specification | PMS | CD-P | G | NO | [***] | [***] | ||||||||||||||||||||||||||||||||||||||
Parts Usage (Effectivity) | PU | OL-A | E | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||
Schedule (Drawing Nomenclature) | S | OL-A | E | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||
Standards Manual | SM | CD-P | G | NO | [***] | [***] |
Spirit Airlines - A320 Family | Exh. F-18 |
NOMENCLATURE | Abbr | Form | Type | ATA | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||
MISCELLANEOUS PUBLICATIONS | ||||||||||||||||||||||||||||||||||||||||||||
Airplane Characteristics for Airport Planning | AC | CD-P | E | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||
ATA Breakdown Index | ATBI | CD-P | E | NO | [***] | [***] | ||||||||||||||||||||||||||||||||||||||
CADETS (Technical Publications Training) | CADE | CD-A | G | NO | [***] | [***] | ||||||||||||||||||||||||||||||||||||||
Aircraft Recovery Manual | ARM | CD-P | E | YES | [***] | [***] | ||||||||||||||||||||||||||||||||||||||
Crash Crew Chart | CCC | P1 | E | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||
Cargo Loading System Manual | CLS | CD-P | E/C | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||
List of Applicable Publications | LAP | OL-A | C | NO | [***] | [***] | ||||||||||||||||||||||||||||||||||||||
List of Radioactive and Hazardous Elements | LRE | CD-P | G | NO | [***] | [***] | ||||||||||||||||||||||||||||||||||||||
Livestock Transportation Manual | LTM | CD-P | E | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||
Service Bulletins | ||||||||||||||||||||||||||||||||||||||||||||
SB | OL-A | C | YES | [***] | [***] | |||||||||||||||||||||||||||||||||||||||
Service Information Letters | SIL | CD-A | E | YES | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||
SIL | OL-A | E | YES | [***] | [***] |
Spirit Airlines - A320 Family | Exh. F-19 |
NOMENCLATURE | Abbr | Form | Type | ATA | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||
MISCELLANEOUS PUBLICATIONS | ||||||||||||||||||||||||||||||||||||||||||||
Supplier Product Support Agreements 2000 | SPSA | OL-A | G | NO | [***] | [***] | [***] | |||||||||||||||||||||||||||||||||||||
Supplier Product Support Agreements 2000 | SPSA | CD-P | G | NO | [***] | [***] | ||||||||||||||||||||||||||||||||||||||
Transportability Manual | TM | CD-P | G | NO | [***] | [***] | ||||||||||||||||||||||||||||||||||||||
Vendor Information Manual | VIM | CD-A | G | NO | [***] | [***] | ||||||||||||||||||||||||||||||||||||||
VIM | OL-A | G | NO | [***] | [***] | |||||||||||||||||||||||||||||||||||||||
Vendor Information Manual GSE | VIM/GSE | CD-A | G | NO | [***] | [***] | ||||||||||||||||||||||||||||||||||||||
VIM/GSE | OL-A | G | NO | [***] | [***] |
Spirit Airlines - A320 Family | Exh. F-20 |
1. | Base Price |
2 | Base Period |
3 | Reference Indexes |
Spirit Airlines - A320 Family | Page 1 of 4 |
4 | Revision Formula |
Spirit Airlines - A320 Family | Page 2 of 4 |
5 | General Provisions |
5.1 | Roundings |
5.2 | Substitution of Indexes for Airframe Price Revision Formula |
(i) | the United States Department of Labor substantially revises the methodology of calculation of the Labor Index or the Material Index as used in the Airframe Price Revision Formula, or |
(ii) | the United States Department of Labor discontinues, either temporarily or permanently, such Labor Index or such Material Index, or |
(iii) | the data samples used to calculate such Labor Index or such Material Index are substantially changed; |
Spirit Airlines - A320 Family | Page 3 of 4 |
5.3 | Final Index Values |
Spirit Airlines - A320 Family | Page 4 of 4 |
1 | Reference Price of the Engines |
2 | Reference Period |
3 | Indexes |
Spirit Airlines - A320 Family | Page 1 of 4 |
4 | Revision Formula |
Spirit Airlines - A320 Family | Page 2 of 4 |
5. | General Provisions |
5.1 | Roundings |
(i) | ECIn and ICn will be calculated to the nearest tenth (1 decimal). |
(ii) | Each quotient (ECIn/ECIb) and (ICn/ICb) will be calculated to the nearest ten-thousandth (4 decimals). |
(iii) | The final factor will be rounded to the nearest ten-thousandth (4 decimals). |
5.2 | Final Index Values |
5.3 | Interruption of Index Publication |
Spirit Airlines - A320 Family | Page 3 of 4 |
5.4 | Annulment of Formula |
5.5 | Limitation |
Spirit Airlines - A320 Family | Page 4 of 4 |
Spirit Airlines - A320 Family Amendment 1 | 1 of 8 |
1. | CANCELLATION OF THE SLB AIRCRAFT |
1.1 | The parties hereby agree to cancel the order for [***] A319 Firm Aircraft pursuant to the Agreement which are scheduled for delivery as follows: [***] The foregoing cancelled Aircraft are henceforth referred to as the "SLB Aircraft". The SLB Aircraft are the subject of a purchase and sale agreement between the Alternate Buyer and the Manufacturer dated as of even date hereof (the "Alternate Purchase Agreement"). The Buyer and the Seller agree that the Buyer will enter into a lease agreement with the Alternate Buyer and take delivery under lease of the subject SLB Aircraft from the Alternate Buyer (each a "Lease Agreement" and collectively the "Lease Agreements"), on the same delivery dates as when the SLB Aircraft would have been Ready for Delivery under the Agreement, except that [***]. |
1.2 | Predelivery Payments |
1.2.1 | [***] |
1.2.2 | [***] |
1.2.3 | [***] |
1.2.4 | [***] |
2. | DEFINITIONS |
Spirit Airlines - A320 Family Amendment 1 | 2 of 8 |
3. | DELIVERY |
9.1.1 | Subject to Clauses 2, 7, 8, 10 and 18, the Seller will have the Firm Aircraft Ready for Delivery at the Delivery Location within the following months (each a "Scheduled Delivery Month"). |
Quantity of A319 Firm Aircraft | Month/Year of Delivery | |||||||
2 Aircraft | [***] | |||||||
2 Aircraft | [***] | |||||||
1 Aircraft | [***] | |||||||
1 Aircraft | [***] | |||||||
1 Aircraft | [***] |
Quantity of A321 | Firm Aircraft Month/Year of Delivery | |||||||
1 Aircraft | [***] | |||||||
1 Aircraft | [***] | |||||||
2 Aircraft | [***] |
4. | SUPPLEMENTAL DEPOSIT |
5. | SUPPLEMENTAL GOODS AND SERVICES CREDIT |
6. | APPLICABILITY OF CREDITS |
6.1 | Support Credit Memorandum |
6.2 | Advanced A319/A321 Credit Memorandum |
2. | Special Credit Memorandum |
2.1 | [***] |
Spirit Airlines - A320 Family Amendment 1 | 3 of 8 |
2.1.1 | [***] |
2.1.2 | [***] |
2.1.3 | [***] |
2.1.4 | [***] |
7. | AVSA POST DELIVERY CREDIT |
2. | Applicability of AVSA Post-Delivery Credit |
8. | CUSTOMIZATION |
(i) | The parties hereby agree to delete in their entirety the provisions in Paragraph 1 of Letter Agreement No. 9 to the Agreement. |
(ii) | (a)Clause 3.1.1.2.1 (ii) of the Agreement is deleted in its entirety and replaced with the following text between the words QUOTE and UNQUOTE: |
Spirit Airlines - A320 Family Amendment 1 | 4 of 8 |
(iii) | Exhibit A-4 to the Agreement is deleted in its entirety and replaced with the new Exhibit A-4 Revision 1 annexed to this Amendment in Appendix 1. The parties agree that the information contained therein is provided for pricing purposes only and does not constitute changes to the Specification until such time as the parties have executed the applicable binding SCNs. |
(iv) | Clause 2.1.2 of the Agreement is deleted in its entirety and replaced with the following text between the words QUOTE and UNQUOTE: |
(v) | Clause 5.2.5 of the Agreement is deleted in its entirety and replaced with the following text between the words QUOTE and UNQUOTE: |
Spirit Airlines - A320 Family Amendment 1 | 5 of 8 |
5.2.5 | SCN Predelivery Payment |
[***] |
9. | PRICE GUARANTEE |
10. | CONDITION PRECEDENT |
11. | TERMINATION EVENT |
12. | EFFECT OF THE AMENDMENT |
12.1 | This Amendment contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous understanding, commitments or representations whatsoever, whether oral or written between the Buyer and the Seller. |
12.2 | The Agreement will be deemed amended to the extent provided in this Amendment and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. Both parties agree that this Amendment will constitute an integral, nonseverable part of the Agreement and be governed by its provisions, except that if the Agreement and this Amendment have specific provisions that are inconsistent, the specific provisions contained in this Amendment will govern. |
13. | CONFIDENTIALITY |
Spirit Airlines - A320 Family Amendment 1 | 6 of 8 |
14. | GOVERNING LAW |
15. | COUNTERPARTS |
Spirit Airlines - A320 Family Amendment 1 | 7 of 8 |
Very truly yours, | ||||||||
AVSA S.A.R.L. | ||||||||
By: | /s/ illegible | |||||||
Its: | AVSA, CEO |
Accepted and Agreed, | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ John R. Severson | |||||||
Its: | EVP & CFO |
Spirit Airlines - A320 Family Amendment 1 | 8 of 8 |
Spirit Airlines - A320 Family Amendment 2 | Page 1 of 6 |
1. | SALE AND PURCHASE |
2. | DELIVERY |
2.1 | The [***] Additional A321 Aircraft will be provisionally scheduled for Delivery in, respectively, [***] until all conditions set forth in Paragraph 5 are met or waived in writing, at which time the foregoing delivery positions will be firm. The Seller will make commercially reasonable efforts to reserve such delivery positions from the date hereof. In the event that one or more of the foregoing delivery positions becomes unavailable, the Buyer and Seller will agree on a mutually acceptable alternative delivery position. |
2.2 | Clause 9.1.1 of the Agreement is deleted in its entirety and replaced with the following quoted text: |
Quantity of A319 Firm Aircraft | Month/Year of Delivery | |||||||
2 Aircraft | [***] | |||||||
2 Aircraft | [***] | |||||||
1 Aircraft | [***] | |||||||
1 Aircraft | [***] | |||||||
1 Aircraft | [***] |
Quantity of A321 Firm Aircraft | Month/Year of Delivery | |||||||
1 Aircraft | [***] | |||||||
1 Aircraft | [***] | |||||||
2 Aircraft | [***] | |||||||
1 Aircraft (Additional A321 Aircraft) | [***] | |||||||
1 Aircraft (Additional A321 Aircraft) | [***] | |||||||
1 Aircraft (Additional A321 Aircraft) | [***] |
Spirit Airlines - A320 Family Amendment 2 | Page 2 of 6 |
3. | ADDITIONAL A321 AIRCRAFT |
3.1 | Base Price |
3.2 | Predelivery Payments |
3.3 | Deferral Right |
3.4 | Conversion Right |
3.5 | Option Aircraft |
Spirit Airlines - A320 Family Amendment 2 | Page 3 of 6 |
4. | 2005 PDP DEFERRAL |
4.1 | Subject to the conditions of Paragraph 4.2 below and without prejudice to any of the Seller's rights and remedies which may result from the Buyer's failure to make Predelivery Payments, the parties agree [***] |
4.2 | [***] |
5. | CONDITION PRECEDENT |
6. | EFFECT OF THE AMENDMENT |
6.1 | This Amendment contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous understanding, commitments or representations whatsoever, whether oral or written between the Buyer and the Seller. |
6.2 | The Agreement will be deemed amended to the extent provided in this Amendment and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. Both parties agree that this Amendment will constitute an integral, nonseverable part of the Agreement and be governed by its provisions, except that if the Agreement and this Amendment have specific provisions that are inconsistent, the specific provisions contained in this Amendment will govern. |
Spirit Airlines - A320 Family Amendment 2 | Page 4 of 6 |
7. | CONFIDENTIALITY |
8. | GOVERNING LAW |
9. | COUNTERPARTS |
Spirit Airlines - A320 Family Amendment 2 | Page 5 of 6 |
Very truly yours, | ||||||||
AVSA S.A.R.L. | ||||||||
By: | /s/ illegible | |||||||
Its: | CEO |
Accepted and Agreed, | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ John R. Severson | |||||||
Its: | EVP & CFO |
Spirit Airlines - A320 Family Amendment 2 | Page 6 of 6 |
1. | CONDITION PRECEDENT TO EFFECTIVITY OF AMENDMENT NO. 2 |
2. | PREDELIVERY PAYMENTS |
2.1 | [***] |
2.2 | [***] |
[***] |
3. | EFFECT OF THE AMENDMENT |
3.1 | This Amendment contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous understanding, commitments or representations whatsoever, whether oral or written between the Buyer and the Seller. |
3.2 | The Agreement will be deemed amended to the extent provided in this Amendment and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. Both parties agree that this Amendment will constitute an integral, nonseverable part of the Agreement and be governed by its provisions, except that if the Agreement and this Amendment have specific provisions that are inconsistent, the specific provisions contained in this Amendment will govern. |
4. | CONFIDENTIALITY |
5. | GOVERNING LAW |
6. | COUNTERPARTS |
Very truly yours, | ||||||||
AVSA S.A.R.L. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Accepted and Agreed, | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ Maria Knutsen-Pugh | |||||||
Its: | Vice President - Commercial Law |
Spirit Airlines - A320 Family Amendment 4 | 1 |
1. | DEFINITIONS |
1.1 | Clause 0 of the Agreement is amended to add the terms and corresponding definitions set forth in the following quoted text: |
(i) | Additional A319 Firm Aircraft - any or all of the thirty (30) firm A319-100 Aircraft for which the delivery schedule is set forth in Clause 9.1.1 hereof, together with all components, equipment, parts and accessories installed in or on such aircraft and the Propulsion Systems installed thereon upon delivery. |
(ii) | Additional A321 Aircraft - any or all of the [***] A321-200 Aircraft ordered by the Buyer and sold by the Seller pursuant to Amendment No. 2 to the Agreement for which the delivery schedule is set forth in Clause 9.1.1 hereof, together with all components, equipment, parts and accessories installed in or on such aircraft and the Propulsion Systems installed thereon upon delivery. |
(iii) | A330 Aircraft - [***] |
1.2 | Clause 0 is further amended by deleting the definitions of "A319 Aircraft", "A320 Aircraft", "A321 Aircraft", "Aircraft" and "Firm Aircraft" and replacing such deleted definitions with the following quoted text: |
Spirit Airlines - A320 Family Amendment 4 | 2 |
2. | SALE AND PURCHASE |
3. | RESCHEDULING AND IRREVOCABLE CONVERSIONS |
3.1 | [***] A319 Firm Aircraft are irrevocably rescheduled from February 2007 and June 2007 to respectively May 2009 and June 2009, |
3.2 | [***] A321 Firm Aircraft are irrevocably rescheduled from November 2007 and December 2007 to respectively November 2009 and December 2009, |
3.3 | [***] Additional A321 Aircraft are irrevocably rescheduled from October 2008 and November 2008 to respectively June 2009 and September 2009 (the Aircraft referred to in Paragraph 3.1, 3.2 and 3.3 are collectively, the "Rescheduled Aircraft") |
3.4 | The parties hereby agree to irrevocably convert [***] A321 Firm Aircraft and [***] Additional A321 Aircraft scheduled for delivery in respectively [***] into A319 Firm Aircraft (the "Converted A319 Aircraft"). |
4. | DELIVERY |
4.1 | As a result of Paragraph 2 and 3 above, Clause 9.1.1 of the Agreement is deleted in its entirety and replaced with the following quoted text: |
Aircraft | Quantity of Aircraft | Month | Year | |||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||
A319 Firm Aircraft * | 1 | [***] | [***] | |||||||||||||||||
A319 Firm Aircraft * | 1 | [***] | [***] | |||||||||||||||||
A319 Firm Aircraft * | 1 | [***] | [***] | |||||||||||||||||
A319 Firm Aircraft ** | 1 | [***] | [***] | |||||||||||||||||
A319 Firm Aircraft ** | 1 | [***] | [***] |
Spirit Airlines - A320 Family Amendment 4 | 3 |
Total A319 Firm Aircraft 10 | ||
* [***] | ||
** [***] |
Aircraft | Quantity of Aircraft | Month | Year | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | |||||||||||||||||||||||||||||
Total Additional Firm Aircraft | 30 |
Aircraft | Quantity of Aircraft | Month | Year | |||||||||||||||||
Additional A321 Aircraft** | 1 | [***] | [***] |
Spirit Airlines - A320 Family Amendment 4 | 4 |
Additional A321 Aircraft** | 1 | [***] | [***] | |||||||||||||||||
A321 Firm Aircraft** | 1 | [***] | [***] | |||||||||||||||||
A321 Firm Aircraft** | 1 | [***] | [***] | |||||||||||||||||
Total | 4 | |||||||||||||||||||
** [***] |
5. | PRICE |
5.1 | The provisions contained in Clause 3.1.1.2 are hereby cancelled and replaced by the following provisions set forth between the "QUOTE" and "UNQUOTE": |
3.1.1.2.1 | A319 Airframe |
(i) | the Base Price of the A319 Airframe, as defined in the A319 Standard Specification (excluding Buyer Furnished Equipment and SCNs), at delivery conditions prevailing in January 2006: |
(ii) | the Base Price of anticipated SCNs for the A319 Aircraft mutually agreed upon prior to the signature of this Agreement at delivery conditions prevailing in January 2006, is: |
3.1.1.2.2 | A320 Airframe |
(i) | the Base Price of the A320 Airframe, as defined in the A320 Standard Specification (excluding Buyer Furnished Equipment and SCNs) at delivery conditions prevailing in January 2006, is: |
(ii) | the Base Price of anticipated SCNs for the A320 Aircraft mutually agreed upon prior to the signature of this Agreement including [***] is: |
Spirit Airlines - A320 Family Amendment 4 | 5 |
3.1.1.2.3 | A321 Airframe |
(i) | the Base Price of the A321 Airframe, as defined in the A321 Standard Specification (excluding Buyer Furnished Equipment and SCNs), at delivery conditions prevailing in January 2006, is: |
(ii) | the Base Price of anticipated SCNs for the A321 Aircraft mutually agreed upon prior to the signature of this Agreement , at delivery conditions prevailing in January 2006, is: |
5.2 | The provisions contained in Clause 3.1.1.3 of the Agreement are hereby cancelled and replaced by the following quoted provisions: |
3.1.1.3 | Base Price of the Propulsion Systems |
3.1.1.3.1 | A319 Propulsion Systems |
3.1.1.3.2 | A320 Propulsion Systems |
Spirit Airlines - A320 Family Amendment 4 | 6 |
3.1.1.3.3 | A321 Propulsion Systems |
5.3 | Exhibit A4-1 Revision 1 is hereby deleted and replaced with Exhibit A4-1 Revision 2 annexed hereto. Any reference in the Agreement to "Exhibit A4" or "Exhibit A4-1 Revision 1" is deleted and replaced with "Exhibit A4-1 Revision 2". |
6. | PRICE REVISION |
6.1 | Exhibit G to the Agreement, Seller Price Revision Formula, is deleted and replaced by Exhibit G-1, Seller Price Revision Formula annexed hereto. |
6.2 | Exhibit H to the Agreement, Propulsion System Price Revision Formula, is deleted and replaced by Exhibit H-1, Propulsion System Price Formula annexed hereto. |
7. | CONDITION PRECEDENT |
7.1 | It is a condition precedent to the effectivity of this Amendment that at the time of execution hereof, no event shall have occurred which constitutes a Termination Event under the Agreement. |
8. | EFFECT OF THE AMENDMENT |
8.1 | This Amendment contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous understanding, commitments or representations whatsoever, whether oral or written between the Buyer and the Seller. |
8.2 | The Agreement will be deemed amended to the extent provided in this Amendment and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. Both parties agree that this Amendment will constitute an integral, nonseverable part of the Agreement and be governed by its provisions, except that if the Agreement and this Amendment have specific provisions that are inconsistent, the specific provisions contained in this Amendment will govern. |
Spirit Airlines - A320 Family Amendment 4 | 7 |
9. | CONFIDENTIALITY |
10. | GOVERNING LAW |
11. | COUNTERPARTS |
Spirit Airlines - A320 Family Amendment 4 | 8 |
Very truly yours, | ||||||||
AIRBUS S.A.S. | ||||||||
By: | /s/ Christophe Mourey | |||||||
Its: | Senior Vice President Contracts |
Accepted and Agreed, | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ B. Ben Baldanza | |||||||
Its: | President & CEO |
Spirit Airlines - A320 Family Amendment 4 | 9 |
1 | Base Price |
2 | Base Period |
3 | Reference Indexes |
Spirit Airlines - A320 Family | 1 |
4 | Revision Formula |
5 | General Provisions |
5.1 | Roundings |
5.2 | Substitution of Indexes for Airframe Price Revision Formula |
(i) | the United States Department of Labor substantially revises the methodology of calculation of the Labor Index or the Material Index as used in the Airframe Price Revision Formula, or |
(ii) | the United States Department of Labor discontinues, either temporarily or permanently, such Labor Index or such Material Index, or |
(iii) | the data samples used to calculate such Labor Index or such Material Index are substantially changed; |
Spirit Airlines - A320 Family | 2 |
5.3 | Final Index Values |
Spirit Airlines - A320 Family | 3 |
1 | Reference Price of the Engines |
2 | Reference Period |
3 | Indexes |
4 | Revision Formula |
Spirit Airlines - A320 Family | 1 |
5. | General Provisions |
5.1 | Roundings |
(i) | ECIn and ICn will be calculated to the nearest tenth (1 decimal). |
(ii) | Each quotient (ECIn/ECIb) and (ICn/ICb) will be calculated to the nearest ten thousandth (4 decimals). |
(iii) | The final factor will be rounded to the nearest ten-thousandth (4 decimals). |
5.2 | Final Index Values |
5.3 | Interruption of Index Publication |
5.4 | Annulment of Formula |
Spirit Airlines - A320 Family | 2 |
5.5 | Limitation |
Spirit Airlines - A320 Family | 3 |
1. | PREDELIVERY PAYMENTS |
1.1 | INITIAL PAYMENTS AND PREDELIVERY PAYMENT RETENTION |
1.2 | PREDELIVERY PAYMENT DEFERRAL |
1.3 | PREDELIVERY PAYMENTS |
Spirit Airlines - A320 Family Letter Agreement 1 to Amendment No. 4 Page 1 of 7 |
1.3.1 | Paragraph 1 of Letter Agreement 2 is amended by |
5.2.1 | [***] |
5.2.2.2 | [***] |
1.3.2 | Paragraph 2 of Letter Agreement 2 is hereby deleted in its entirety and replaced with the following language between "QUOTE" and "UNQUOTE": |
Payment Date | Percentage of Predelivery Payment Reference Price | |||||||||||||||||||
[***] | [***] | [***] | ||||||||||||||||||
TOTAL PAYMENT PRIOR TO DELIVERY | [***] |
Spirit Airlines - A320 Family Letter Agreement 1 to Amendment No. 4 Page 2 of 7 |
Payment Date | Percentage of Predelivery Payment Reference Price | |||||||||||||||||||
[***] | [***] | [***] | ||||||||||||||||||
TOTAL PAYMENT PRIOR TO DELIVERY | [***] |
2. | FLEXIBILITY |
2.1 | Termination of Option Aircraft and Rolling Option Aircraft |
(i) | Paragraph 1 of Letter Agreement 4 entitled Option Aircraft is hereby deleted in its entirety and all Option Aircraft immediately expire and are of no further effect. |
(ii) | Paragraph 2 of Letter Agreement 4 entitled Rolling Option Aircraft is hereby deleted in its entirety and all Rolling Option Aircraft immediately expire and are of no further affect. |
2.2 | Termination of Conversion Rights on Additional A321 Aircraft |
2.3 | Conversion Rights |
(i) | Conversion Rights on Additional A319 Firm Aircraft |
(ii) | Conversion Rights on A319 Firm Aircraft |
(iii) | Conversion Rights to A330-200 Aircraft |
(iv) | Deletion of Deferral Right |
3. | PRODUCT SUPPORT |
Spirit Airlines - A320 Family Letter Agreement 1 to Amendment No. 4 Page 3 of 7 |
11. | ADDITIONAL TRAINING MATTERS |
(i) | [***] |
(ii) | [***] |
12. | AIRFASE |
13. | ADOC |
4. | CUSTOMIZATION AND RETROFITS |
5. | CABIN INTERIOR |
Spirit Airlines - A320 Family Letter Agreement 1 to Amendment No. 4 Page 4 of 7 |
6. | AERO ENHANCEMENTS |
7. | DELETION OF ACT ON A321 AIRCRAFT |
5. | CONFIDENTIALITY |
6. | GOVERNING LAW |
Spirit Airlines - A320 Family Letter Agreement 1 to Amendment No. 4 Page 5 of 7 |
7. | COUNTERPARTS |
Spirit Airlines - A320 Family Letter Agreement 1 to Amendment No. 4 Page 6 of 7 |
Very truly yours, | ||||||||
AIRBUS S.A.S. | ||||||||
By: | /s/ illegible | |||||||
Its: |
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ B. Ben Baldanza | |||||||
Its: | President & CEO |
Spirit Airlines - A320 Family Letter Agreement 1 to Amendment No. 4 Page 7 of 7 |
1. | ESCALATION CAP ON ADDITIONAL A319 FIRM AIRCRAFT |
1.1 | [***] |
1.2 | [***] |
1.3 | [***] |
1.4 | [***] |
2. | Termination of Certain Letter Agreements In Whole or In Part |
Spirit Airlines - A320 Family Aircraft Letter Agreement 2 to Amendment No. 4 | LA2-1 |
2.1 | Letter Agreement 3 regarding Commercial Incentives is hereby canceled in its entirety and is of no further affect. |
2.2 | Letter Agreement 10 regarding Sideletter Agreement is hereby canceled in its entirety and is of no further affect. |
2.3 | Paragraph 4 of Letter Agreement 4, Credit Memoranda with Respect to Option Aircraft and Conversion Aircraft, is deleted in its entirety and is of no further affect. |
3. | CREDIT MEMORANDA |
3.1 | Credit Memoranda for A319 Firm Aircraft, A321 Firm Aircraft, Additional A321 Aircraft, Conversion A320 Aircraft and Conversion A321 Aircraft |
(i) | Credit Memoranda |
[***] |
(ii) | Applicability of the Airbus Credit Memorandum |
The Airbus Credit Memorandum described in this Paragraph 3.1 are based on January 2006 delivery conditions and will be adjusted to the Delivery Date of the applicable A319 Firm Aircraft, A321 Firm Aircraft, Additional A321 Aircraft, Conversion A320 Aircraft or Conversion A321 Aircraft in accordance with the Seller Price Revision Formula. |
The Buyer will have the option to apply the Airbus Credit Memorandum towards either (i) the Final Contract Price upon Delivery of the applicable Aircraft or (ii) the purchase of goods and services from the ANACS Customer Services Catalog. |
3.2 | Credit Memoranda for Additional A319 Firm Aircraft, Converted Additional A320 Aircraft and Converted Additional A321 Aircraft |
(i) | Credit Memoranda |
For the Additional A319 Firm Aircraft, Converted Additional A320 Aircraft and Converted Additional A321 Aircraft, the Seller will provide the Buyer with the applicable credit memoranda described below: |
[***] |
(ii) | Applicability of the Airbus New Credit Memorandum |
The Airbus New Credit Memorandum described in this Paragraph 3.2 are based on January 2006 delivery conditions and are subject to price revision to the Delivery Date of the applicable Additional A319 Firm Aircraft, Converted Additional A320 Aircraft or Converted Additional A321 Aircraft in accordance with the Seller Price Revision Formula, subject to the provisions set forth in Paragraph 1 of this Letter Agreement. |
The Buyer will have the option to apply the Airbus New Credit Memorandum towards either (i) the Final Contract Price upon Delivery of the applicable Aircraft or (ii) the purchase of goods and services from the ANACS Customer Services Catalog. |
Spirit Airlines - A320 Family Aircraft Letter Agreement 2 to Amendment No. 4 | LA2-2 |
3.3 | Advanced A319/A321 Credit Memorandum |
3.3.1 | [***] |
3.3.2 | [***] |
3.3.3 | [***] |
3.3.4 | [***] |
3.3.5 | [***] |
4. | A320 FAMILY PRICE HARMONIZATION CREDIT MEMORANDUM |
4.1 | [***] |
4.2 | [***] |
4.3 | [***] |
4.4 | [***] |
5. | OTHER ESCALATION SUPPORT |
5.1 | [***] |
5.2 | [***] |
5.3 | [***] |
5.4 | [***] |
6. | FIXED LEASED AIRCRAFT SUPPORT |
[***] |
7. | ASSIGNMENT |
8. | CONFIDENTIALITY |
Spirit Airlines - A320 Family Aircraft Letter Agreement 2 to Amendment No. 4 | LA2-3 |
9. | GOVERNING LAW |
10. | COUNTERPARTS |
Spirit Airlines - A320 Family Aircraft Letter Agreement 2 to Amendment No. 4 | LA2-4 |
Very truly yours, | ||||||||
Airbus S.A.S. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Accepted and Agreed | ||||||||
Spirit Airlines, Inc, | ||||||||
By: | /s/ B. Ben Baldanza | |||||||
Its: President & CEO |
Spirit Airlines - A320 Family Aircraft Letter Agreement 2 to Amendment No. 4 | LA2-5 |
1. | PRICE REVISION |
Spirit Airlines - A320 Family Amendment 5 | 1 of 3 |
2. | CONFIDENTIALITY |
3. | GOVERNING LAW |
4. | COUNTERPARTS |
Spirit Airlines - A320 Family Amendment 5 | 2 of 3 |
Very truly yours, | ||||||||
AIRBUS S.A.S. | ||||||||
By: | /s/ Christophe Mourey | |||||||
Its: | Senior Vice President Contracts |
Accepted and Agreed, | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ Joseph Marotta | |||||||
Its: | VP & Controller |
Spirit Airlines - A320 Family Amendment 5 | 3 of 3 |
1 | REFERENCE PRICE |
2 | REFERENCE PERIOD |
3 | INDEXES |
Spirit Airlines - A320 Family Amendment 5 | Page 1/3 |
4 | REVISION FORMULA |
Spirit Airlines - A320 Family Amendment 5 | Page 2/3 |
5 | GENERAL PROVISIONS |
5.1 | The Reference Price as revised as of the Delivery Date of the Aircraft shall be the final price and shall not be subject to any further adjustments in the indexes. |
5.2 | If the US Department of Labor substantially revises the methodology of calculation or discontinues any of the indexes referred to hereabove, the Seller shall reflect the substitute for the revised or discontinued index selected by International Aero Engines, 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. |
5.3 | Should the above escalation provisions become null and void by action of the US Government, the price shall be adjusted due to increases in the costs of labor and material which have occurred from the period represented by the applicable Reference Price Indexes [***]. |
5.4 | Should the revised Reference Price be lower than the Reference Price, the final price shall be computed with the Reference Price. |
Spirit Airlines - A320 Family Amendment 5 | Page 3/3 |
1. | CLAUSE 9 - DELIVERY |
1.1 | Aircraft Identification Numbers |
Spirit Airlines - A320 Family Amendment 6 | 1 of 5 PRIVILEGED AND CONFIDENTIAL |
1.2 | Rescheduling |
9.1.1 | Subject to Clauses 2, 7, 8, 10 and 18, the Seller will have the Firm Aircraft Ready for Delivery at the Delivery Location within the following months (each a "Scheduled Delivery Month"). |
Aircraft | Quantity of Aircraft | Month | Year | CAC ID No. | ||||||||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Total A319 Firm Aircraft | 10 |
Aircraft | Quantity of Aircraft | Month | Year | CAC ID No. | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Total Additional Firm A319 | ||||||||||||||||||||||||||||||||||||||||||||||||||
Aircraft | 30 |
Spirit Airlines - A320 Family Amendment 6 | 2 of 5 PRIVILEGED AND CONFIDENTIAL |
Aircraft | Quantity of Aircraft | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A321 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
A321 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
A321 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A321 Aircraft** | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Total A321 Aircraft | 4 | |||||||||||||||||||||||||||||||||||||||||||||||||
** [***] |
1.3 | Conversion Rights to A330-200 Aircraft: |
Spirit Airlines - A320 Family Amendment 6 | 3 of 5 PRIVILEGED AND CONFIDENTIAL |
(iii) | Conversion Rights to A330-200 Aircraft |
2. | EFFECT OF THE AMENDMENT |
2.1 | This Amendment contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous understanding, commitments or representations whatsoever, whether oral or written between the Buyer and the Seller. |
2.2 | The Agreement will be deemed amended to the extent provided in this Amendment and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. Both parties agree that this Amendment will constitute an integral, nonseverable part of the Agreement and be governed by its provisions, except that if the Agreement and this Amendment have specific provisions that are inconsistent, the specific provisions contained in this Amendment will govern. |
3. | CONFIDENTIALITY |
The Seller and the Buyer (including their employees, agents and advisors) agree to keep the terms and conditions of this Amendment strictly confidential, except as required by applicable law or pursuant to legal process. The Seller and the Buyer will consult prior to any public disclosure regarding this Amendment and will mutually agree on any such disclosure; provided, however, that following execution of this Amendment, the Buyer may make such disclosure thereof as may be required by law or governmental orders, rules or regulations. |
4. | GOVERNING LAW |
THE AMENDMENT AND THE AGREEMENTS CONTEMPLATED HEREIN WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE 22.4 OF THE AGREEMENT. |
IT IS AGREED THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS AMENDMENT. |
5. | COUNTERPARTS |
This Amendment may be executed by the parties hereto in separate counterparts, each of which when so executed shall be an original, but all such counterparts shall together constitute one and the same instrument. Such counterparts may be delivered via facsimile and/or electronic mail (provided that an original is subsequently delivered). |
Spirit Airlines - A320 Family Amendment 6 | 4 of 5 PRIVILEGED AND CONFIDENTIAL |
IN WITNESS WHEREOF, the parties have caused this Amendment to be signed by their respective officers thereunto duly authorized as of the day and year first above written. |
SPIRIT AIRLINES, INC. | AIRBUS S.A.S. | |||||||||||||||||||||||||
By: | /s/ David W. Lancelot | By: | /s/ Christophe Mourey | |||||||||||||||||||||||
Its: | Sr. Vice President & CFO | Its: | Senior Vice President Contracts |
Spirit Airlines - A320 Family Amendment 6 | 5 of 5 PRIVILEGED AND CONFIDENTIAL |
Spirit Airlines - A320 Family Amendment 7 - Execution | 6 PRIVILEGED AND CONFIDENTIAL |
1. | A319 CONVERSION |
1.1 | The Buyer has requested, and the Seller hereby agrees, to irrevocably convert [***] A319 Firm Aircraft [***] into [***] Conversion A320 Aircraft. |
1.2 | The parties hereby agree to irrevocably convert [***] A319 Firm Aircraft [***] into Conversion A320 Aircraft. |
1.3 | The parties hereby agree to irrevocably convert [***] Additional A319 Firm Aircraft into Converted Additional A320 Aircraft. [***] |
2. | A321 CONVERSION |
2.1 | The Buyer has requested, and the Seller hereby agrees, to irrevocably convert [***] A321 Firm Aircraft [***] and [***] Additional A321 Aircraft [***] into Conversion A320 Aircraft. |
2.2 | Paragraph 2.3 (iii) (Conversion Rights to A330-200 Aircraft) of Letter Agreement No. 1 to Amendment No. 4 to the Agreement is deleted in its entirety and is of no further effect. |
3. | CONVERTED AIRCRAFT MATRIX |
Appendix 1 hereto sets forth the Aircraft types and associated CAC ID No. for each Aircraft that has been converted pursuant to this Amendment. Appendix 1 is provided for information purposes only. |
4. | DEFINITIONS |
Clause 0 of the Agreement is amended by deleting the definition of "A320 Aircraft" and replacing it with the following quoted text: |
A320 Aircraft - any firmly ordered A320 Aircraft that the Buyer elects to convert from an A319 Aircraft or an A321 Aircraft. |
5. | CLAUSE 9 - DELIVERY |
As a result of Paragraphs 1 and 2 above, Clause 9.1.1 of the Agreement is deleted and replaced with the following quoted text: |
9.1.1 | Subject to Clauses 2, 7, 8, 10 and 18, the Seller will have the Firm Aircraft Ready for Delivery at the Delivery Location within the following months (each a "Scheduled Delivery Month"). |
A319 Aircraft | Quantity of Aircraft | Month | Year | CAC ID No. | ||||||||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional. A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Total A319 Aircraft | 24 | [***] | [***] | [***] |
A320 Aircraft | Quantity of Aircraft | Month | Year | CAC ID No. | ||||||||||||||||||||||||||||||||||||||||||||||
Conversion A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Conversion A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Conversion A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | `[***] | ||||||||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Conversion A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Conversion A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Conversion A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Conversion A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||||||||
Total A320 Aircraft | 20 | [***] | [***] | [***] |
6. | CONDITION PRECEDENT |
7. | EFFECT OF THE AMENDMENT |
7.1 | This Amendment contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous understanding, commitments or representations whatsoever, whether oral or written between the Buyer and the Seller. |
7.2 | The Agreement will be deemed amended to the extent provided in this Amendment and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. Both parties agree that this Amendment will constitute an integral, nonseverable part of the Agreement and be governed by its provisions, except that if the Agreement and this Amendment have specific provisions that are inconsistent, the specific provisions contained in this Amendment will govern. |
8. | CONFIDENTIALITY |
The Seller and the Buyer (including their employees, agents and advisors) agree to keep the terms and conditions of this Amendment strictly confidential, except as required by applicable law or pursuant to legal process. The Seller and the Buyer will consult prior to any public disclosure regarding this Amendment and will mutually agree on any such disclosure; provided, however, that following execution of this Amendment, the Buyer may make such disclosure thereof as may be required by law or governmental orders, rules or regulations. |
9. | GOVERNING LAW |
THIS AMENDMENT AND THE AGREEMENTS CONTEMPLATED HEREIN WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE 22.4 OF THE AGREEMENT. |
IT IS AGREED THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS AMENDMENT. |
10. | COUNTERPARTS |
This Amendment may be executed by the parties hereto in separate counterparts, each of which when so executed shall be an original, but all such counterparts shall together constitute one and the same instrument. Such counterparts may be delivered via facsimile and/or electronic mail (provided that an original is subsequently delivered). |
SPIRIT AIRLINES, INC. | AIRBUS S.A.S. | |||||||||||||||||||||||||
By: | /s/ David Lancelot | By: | /s/ Christophe Mourey | |||||||||||||||||||||||
Its: | SVP & CFO | Its: | SVP Contracts |
From A319 Aircraft: | To A320 Aircraft: | CAC ID No. | ||||||||||||
[***] | [***] | [***] |
Spirit Airlines - A320 Family Aircraft Letter Agreement 1 to Amendment 7 - EXECUTION | LA 1-7 PRIVILEGED AND CONFIDENTIAL |
From A321 Aircraft: | To A320 Aircraft: | CAC ID No. | ||||||||||||
[***] | [***] | [***] |
Spirit Airlines - A320 Family aircraft Amendment 7 - EXECUTION | LA 1-2 PRIVILEGED AND CONFIDENTIAL |
Spirit Airlines - A320 Family Aircraft Letter Agreement 1 to Amendment 7 - EXECUTION | LA1-7 PRIVILEGED AND CONFIDENTIAL |
1. | ADVANCED A319/A321 CREDIT MEMORANDUM |
1.1 | Paragraph 3.11 of Letter Agreement No. 2 to Amendment No. 4 to the Agreement is deleted and replaced by the following quoted text: |
2. | A320 FAMILY PRICE HARMONIZATION CREDIT MEMORANDUM |
2.1 | Paragraph 4.1 of Letter Agreement No. 2 to Amendment No. 4 to the Agreement is deleted and replaced by the following quoted text: |
4.1 | [***] |
2.2 | Paragraph 4.3 of Letter Agreement No. 2 to Amendment No. 4 to the Agreement is deleted and has no further force or effect. The Buyer and the Seller acknowledge that in consideration of the Seller granting the Buyer the right to convert the [***] A321 Film Aircraft and the [***] Additional A321 Aircraft into Conversion A320 Aircraft, [***] |
Spirit Airlines - A320 Family Aircraft Amendment 7 - EXECUTION | LA1-2 PRIVILEGED AND CONFIDENTIAL |
4.4 | [***] |
3. | OTHER ESCALATION SUPPORT |
5.1 | [***] |
4. | PREDELIVERY PAYMENTS |
5. | ASSIGNMENT |
Spirit Airlines - A320 Family Aircraft Amendment 7 - EXECUTION | LA1-3 PRIVILEGED AND CONFIDENTIAL |
6. | CONFIDENTIALITY. |
7. | GOVERNING LAW |
8. | COUNTERPARTS |
Spirit Airlines - A320 Family Aircraft Amendment 7 - EXECUTION | LA1-4 PRIVILEGED AND CONFIDENTIAL |
Very truly yours, | ||||||||
AIRBUS S.A.S. | ||||||||
By: | /s/ Christophe Mourey | |||||||
Its: | Senior Vice President Contracts |
Accepted and Agreed | ||||||||
SPIRIT AIRLINES, INC. |
By: | /s/ David Lancelot | |||||||
Its: | SVP & CFO |
Spirit Airlines - A320 Family Aircraft Amendment 7 - EXECUTION | LA1-5 PRIVILEGED AND CONFIDENTIAL |
Spirit Airlines - A320 Family Amendment 8 | 1 PRIVILEGED AND CONFIDENTIAL |
1. | NEW BASE PRICE OF THE PROPULSION SYSTEMS |
3.1.1.3.1 | A319 Propulsion Systems |
3.1.1.3.2 | A320 Propulsion Systems |
3.1.1.3.3 | A321 Propulsion Systems |
2. | PRICE REVISION |
2. | EFFECT OF THE AMENDMENT |
Spirit Airlines - A320 Family Amendment 8 | 2 PRIVILEGED AND CONFIDENTIAL |
3. | CONFIDENTIALITY |
4. | GOVERNING LAW |
5. | COUNTERPARTS |
Spirit Airlines - A320 Family Amendment 8 | 3 PRIVILEGED AND CONFIDENTIAL |
SPIRIT AIRLINES, INC. | AIRBUS S.A.S. | |||||||||||||||||||||||||
By: | /s/ David Lancelot | By: | /s/Christophe Mourey | |||||||||||||||||||||||
Its: Sr. Vice President & CFO | Its: Senior Vice President Contracts |
Spirit Airlines - A320 Family Amendment 8 | 4 PRIVILEGED AND CONFIDENTIAL |
1 | REFERENCE PRICE |
2 | REFERENCE PERIOD |
3 | INDEXES |
4 | REVISION FORMULA |
Spirit Airlines - A320 Family Amendment 8 | Exh. H-2 | Page 1/3 |
5. | GENERAL PROVISIONS |
5.1 | The Reference Price as revised as of the Delivery Date of the Aircraft shall be the final price and shall not be subject to any further adjustments in the indexes. |
5.2 | If the US Department of Labor substantially revises the methodology of calculation or discontinues any of the indexes referred to hereabove, the Seller shall reflect the substitute for the revised or discontinued index selected by International Aero Engines, 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. |
5.3 | Should the above escalation provisions become null and void by action of the US Government, the price shall be adjusted due to increases in the costs of labor and material which have occurred from the period represented by the applicable Reference Price Indexes [***] |
5.4 | Should the revised Reference Price be lower than the Reference Price, the final price shall be computed with the Reference Price. |
Spirit Airlines - A320 Family Amendment 8 | Exh. H-2 | Page 2/3 |
1. | CLAUSE 0 - DEFINITIONS |
Spirit Airlines - A320 Family Amendment 9 | 1 of 5 PRIVILEGED AND CONFIDENTIAL |
2. | CLAUSE 9 - DELIVERY |
9.1.1 | Subject to Clauses 2, 7, 8, 10 and 18, the Seller will have the Firm Aircraft Ready for Delivery at the Delivery Location within the following months (each a "Scheduled Delivery Month"). |
A319 Aircraft | Quantity of Aircraft | Month | Year | CAC ID No. | ||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | October | 2006 | 179484 | ||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | October | 2006 | 179485 | ||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | November | 2006 | 179486 | ||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | November | 2006 | 179487 | ||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | December | 2006 | 179488 | ||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | February | 2008 | 179493 | ||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | February | 2008 | 179494 | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] |
Spirit Airlines - A320 Family Amendment 9 | 2 of 5 PRIVILEGED AND CONFIDENTIAL |
A319 Aircraft | Quantity of Aircraft | Month | Year | CAC ID No. | ||||||||||||||||||||||||||||||||||||||||
Total A319 Aircraft | 24 |
A320 Aircraft | Quantity of Aircraft | Month | Year | CAC ID No. | ||||||||||||||||||||||||||||||||||||||||
Conversion A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Conversion A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Conversion A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Conversion A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Conversion A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Conversion A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Conversion A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Total A320 Aircraft | 20 |
Spirit Airlines - A320 Family Amendment 9 | 3 of 5 PRIVILEGED AND CONFIDENTIAL |
3. | EFFECT OF THE AMENDMENT |
3.1 | Subject to the provisions of Paragraph 3.2 below, the effective date of this Amendment (the "Effective Date") will be that date on which the last party hereto affixes its signature on the signature page below. |
3.2 | Notwithstanding the provisions of Paragraph 3.1 above, if a Termination Event under the Agreement occurs prior to the Effective Date, then this Amendment and the terms herein will be null and void. |
3.3 | This Amendment contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous understanding, commitments or representations whatsoever, whether oral or written between the Buyer and the Seller. |
3.4 | The Agreement will be deemed amended to the extent provided in this Amendment and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. Both parties agree that this Amendment will constitute an integral, nonseverable part of the Agreement and be governed by its provisions, except that if the Agreement and this Amendment have specific provisions that are inconsistent, the specific provisions contained in this Amendment will govern. |
4. | CONFIDENTIALITY |
5. | GOVERNING LAW |
5.1 | THIS AMENDMENT AND THE AGREEMENTS CONTEMPLATED HEREIN WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE 22.4 OF THE AGREEMENT. |
5.2 | IT IS AGREED THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS AMENDMENT. |
6. | COUNTERPARTS |
Spirit Airlines - A320 Family Amendment 9 | 4 of 5 PRIVILEGED AND CONFIDENTIAL |
Spirit Airlines - A320 Family Amendment 9 | 5 of 5 PRIVILEGED AND CONFIDENTIAL |
SPIRIT AIRLINES, INC. | AIRBUS S.A.S. | |||||||||||||||||||
By: | /s/ David Lancelot | By: | /s/ Chrisophe Mourey | |||||||||||||||||
Its: | SVP & CFO | Its: | Senior Vice President Contracts |
Spirit Airlines - A320 Family Amendment 9 | 6 of 5 PRIVILEGED AND CONFIDENTIAL |
1 | RETURN OF PREDELIVERY PAYMENTS |
1.1 | Cash Predelivery Payments |
1.2 | Deferred Predelivery Payment |
2 | ESCALATION PROTECTION |
2.1 | Escalation Caps |
1 | ||||||||||||||||||||||||||||||||
Spirit Airlines - A320 Family LA No. 1 to Amendment No. 9 | PRIVILEGED AND CONFIDENTIAL |
1. | ESCALATION CAPS |
1.1 | Additional A319 Firm Aircraft |
1.2 | A table setting forth the escalation factors derived from application of the Seller Price Revision Formula for each month between [***] based on [***] is provided, for illustrative purposes only, in Exhibit A attached hereto. |
1.3 | Converted Additional A320 Aircraft and Converted Additional A321 Aircraft |
(i) | [***] |
(ii) | [***] |
1.4 | A table setting forth the escalation factors derived from application of the Seller Price Revision Formula for each month between [***] based on [***] is provided, for illustrative purposes only, in Exhibit B attached hereto. |
2.2 | Other Escalation Support |
2 | ||||||||||||||||||||||||||||||||
Spirit Airlines - A320 Family LA No. 1 to Amendment No. 9 | PRIVILEGED AND CONFIDENTIAL |
5.1 | [***] |
(i) | [***] |
(ii) | [***] |
3 | PDP FINANCING COMMITMENT |
3.1 | [***] |
3.2 | [***] |
3.2.1 | [***] |
3.2.2 | [***] |
3.2.3 | [***] |
3.2.4 | The provisions of Paragraph 5 herein will apply to any Aircraft that may be converted into Conversion A320 Aircraft under this Paragraph 3. |
4 | CREDIT MEMORANDUM |
5 | MTOW REDUCTION FOR A320 AIRCRAFT |
3 | ||||||||||||||||||||||||||||||||
Spirit Airlines - A320 Family LA No. 1 to Amendment No. 9 | PRIVILEGED AND CONFIDENTIAL |
(i) | [***] |
(ii) | [***] |
6 | OPERATION ON NARROW RUNWAYS |
7 | LETTER AGREEMENT NO. 2 TO AMENDMENT NO. 4 |
7.1 | Paragraph 3.3.5 of Letter Agreement No. 2 to Amendment No. 4 to the Agreement is deleted and replaced by the following quoted text: |
[***] |
4 | ||||||||||||||||||||||||||||||||
Spirit Airlines - A320 Family LA No. 1 to Amendment No. 9 | PRIVILEGED AND CONFIDENTIAL |
7.2 | Paragraphs 4.1 and 4.2 of Letter Agreement No. 2 to Amendment No. 4 to the Agreement are deleted in their entirety and replaced by the following quoted text: |
4.1 | [***] |
4.2. | [***] |
8 | RESCISSION OF MAY 2008 NOTICE |
9 | CONFIDENTIALITY |
10 | GOVERNING LAW |
11 | COUNTERPARTS |
5 | ||||||||||||||||||||||||||||||||
Spirit Airlines - A320 Family LA No. 1 to Amendment No. 9 | PRIVILEGED AND CONFIDENTIAL |
Very truly yours, | ||||||||
AIRBUS S.A.S. | ||||||||
By: | /s/ Christophe Mourey | |||||||
Its: | Senior Vice President Contracts |
Accepted and Agreed, | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ David Lancelot | |||||||
Its: | SVP & CFO |
6 | ||||||||||||||||||||||||||||||||
Spirit Airlines - A320 Family LA No. 1 to Amendment No. 9 | PRIVILEGED AND CONFIDENTIAL |
Delivery Month/Year | Escalation Factor | Delivery Month/Year | Escalation Factor | Delivery Month/Year | Escalation Factor | |||||||||||||||||||||||||||
January-2006 | [***] | January-2010 | [***] | January-2014 | [***] | |||||||||||||||||||||||||||
February-2006 | [***] | February-2010 | [***] | February-2014 | [***] | |||||||||||||||||||||||||||
March-2006 | [***] | March-2010 | [***] | March-2014 | [***] | |||||||||||||||||||||||||||
April-2006 | [***] | April-2010 | [***] | April-2014 | [***] | |||||||||||||||||||||||||||
May-2006 | [***] | May-2010 | [***] | May-2014 | [***] | |||||||||||||||||||||||||||
June-2006 | [***] | June-2010 | [***] | June-2014 | [***] | |||||||||||||||||||||||||||
July-2006 | [***] | July-2010 | [***] | July-2014 | [***] | |||||||||||||||||||||||||||
August-2006 | [***] | August-2010 | [***] | August-2014 | [***] | |||||||||||||||||||||||||||
September-2006 | [***] | September-2010 | [***] | September-2014 | [***] | |||||||||||||||||||||||||||
October-2006 | [***] | October-2010 | [***] | October-2014 | [***] | |||||||||||||||||||||||||||
November-2006 | [***] | November-2010 | [***] | November-2014 | [***] | |||||||||||||||||||||||||||
December-2006 | [***] | December-2010 | [***] | December-2014 | [***] | |||||||||||||||||||||||||||
January-2007 | [***] | January-2011 | [***] | January-2015 | [***] | |||||||||||||||||||||||||||
February-2007 | [***] | February-2011 | [***] | February-2015 | [***] | |||||||||||||||||||||||||||
March-2007 | [***] | March-2011 | [***] | March-2015 | [***] | |||||||||||||||||||||||||||
April-2007 | [***] | April-2011 | [***] | April-2015 | [***] | |||||||||||||||||||||||||||
May-2007 | [***] | May-2011 | [***] | May-2015 | [***] | |||||||||||||||||||||||||||
June-2007 | [***] | June-2011 | [***] | June-2015 | [***] | |||||||||||||||||||||||||||
July-2007 | [***] | July-2011 | [***] | July-2015 | [***] | |||||||||||||||||||||||||||
August-2007 | [***] | August-2011 | [***] | August-2015 | [***] | |||||||||||||||||||||||||||
September-2007 | [***] | September-2011 | [***] | September-2015 | [***] | |||||||||||||||||||||||||||
October-2007 | [***] | October-2011 | [***] | October-2015 | [***] | |||||||||||||||||||||||||||
November-2007 | [***] | November-2011 | [***] | November-2015 | [***] | |||||||||||||||||||||||||||
December-2007 | [***] | December-2011 | [***] | December-2015 | [***] | |||||||||||||||||||||||||||
January-2008 | [***] | January-2012 | [***] | |||||||||||||||||||||||||||||
February-2008 | [***] | February-2012 | [***] | |||||||||||||||||||||||||||||
March-2008 | [***] | March-2012 | [***] | |||||||||||||||||||||||||||||
April-2008 | [***] | April-2012 | [***] | |||||||||||||||||||||||||||||
May-2008 | [***] | May-2012 | [***] | |||||||||||||||||||||||||||||
June-2008 | [***] | June-2012 | [***] | |||||||||||||||||||||||||||||
July-2008 | [***] | July-2012 | [***] | |||||||||||||||||||||||||||||
August-2008 | [***] | August-2012 | [***] | |||||||||||||||||||||||||||||
September-2008 | [***] | September-2012 | [***] | |||||||||||||||||||||||||||||
October-2008 | [***] | October-2012 | [***] |
November-2008 | [***] | November-2012 | [***] | |||||||||||||||||||||||||||||
December-2008 | [***] | December-2012 | [***] | |||||||||||||||||||||||||||||
January-2009 | [***] | January-2013 | [***] | |||||||||||||||||||||||||||||
February-2009 | [***] | February-2013 | [***] | |||||||||||||||||||||||||||||
March-2009 | [***] | March-2013 | [***] | |||||||||||||||||||||||||||||
April-2009 | [***] | April-2013 | [***] | |||||||||||||||||||||||||||||
May-2009 | [***] | May-2013 | [***] | |||||||||||||||||||||||||||||
June-2009 | [***] | June-2013 | [***] | |||||||||||||||||||||||||||||
July-2009 | [***] | July-2013 | [***] | |||||||||||||||||||||||||||||
August-2009 | [***] | August-2013 | [***] | |||||||||||||||||||||||||||||
September-2009 | [***] | September-2013 | [***] | |||||||||||||||||||||||||||||
October-2009 | [***] | October-2013 | [***] | |||||||||||||||||||||||||||||
November-2009 | [***] | November-2013 | [***] | |||||||||||||||||||||||||||||
December-2009 | [***] | December-2013 | [***] |
7 | ||||||||||||||||||||||||||||||||
Spirit Airlines - A320 Family LA No. 1 to Amendment No. 9 | PRIVILEGED AND CONFIDENTIAL |
Delivery Month/Year | Escalation Factor | Delivery Month/Year | Escalation Factor | Delivery Month/Year | Escalation Factor | |||||||||||||||||||||||||||
January-2006 | [***] | January-2010 | [***] | January-2014 | [***] | |||||||||||||||||||||||||||
February-2006 | [***] | February-2010 | [***] | February-2014 | [***] | |||||||||||||||||||||||||||
March-2006 | [***] | March-2010 | [***] | March-2014 | [***] | |||||||||||||||||||||||||||
April-2006 | [***] | April-2010 | [***] | April-2014 | [***] | |||||||||||||||||||||||||||
May-2006 | [***] | May-2010 | [***] | May-2014 | [***] | |||||||||||||||||||||||||||
June-2006 | [***] | June-2010 | [***] | June-2014 | [***] | |||||||||||||||||||||||||||
July-2006 | [***] | July-2010 | [***] | July-2014 | [***] | |||||||||||||||||||||||||||
August-2006 | [***] | August-2010 | [***] | August-2014 | [***] | |||||||||||||||||||||||||||
September-2006 | [***] | September-2010 | [***] | September-2014 | [***] | |||||||||||||||||||||||||||
October-2006 | [***] | October-2010 | [***] | October-2014 | [***] | |||||||||||||||||||||||||||
November-2006 | [***] | November-2010 | [***] | November-2014 | [***] | |||||||||||||||||||||||||||
December-2006 | [***] | December-2010 | [***] | December-2014 | [***] | |||||||||||||||||||||||||||
January-2007 | [***] | January-2011 | [***] | January-2015 | [***] |
February-2007 | [***] | February-2011 | [***] | February-2015 | [***] | |||||||||||||||||||||||||||
March-2007 | [***] | March-201 1 | [***] | March-2015 | [***] | |||||||||||||||||||||||||||
April-2007 | [***] | April-2011 | [***] | April-2015 | [***] | |||||||||||||||||||||||||||
May-2007 | [***] | May-2011 | [***] | May-2015 | [***] | |||||||||||||||||||||||||||
June-2007 | [***] | June-2011 | [***] | June-2015 | [***] | |||||||||||||||||||||||||||
July-2007 | [***] | July-2011 | [***] | July-2015 | [***] | |||||||||||||||||||||||||||
August-2007 | [***] | August-2011 | [***] | August-2015 | [***] | |||||||||||||||||||||||||||
September-2007 | [***] | September-2011 | [***] | September-2015 | [***] | |||||||||||||||||||||||||||
October-2007 | [***] | October-2011 | [***] | October-2015 | [***] | |||||||||||||||||||||||||||
November-2007 | [***] | November 2011 | [***] | November-2015 | [***] | |||||||||||||||||||||||||||
December-2007 | [***] | December-2011 | [***] | December-2015 | [***] | |||||||||||||||||||||||||||
January-2008 | [***] | January-2012 | [***] | |||||||||||||||||||||||||||||
February-2008 | [***] | February-2012 | [***] | |||||||||||||||||||||||||||||
March-2008 | [***] | March-2012 | [***] | |||||||||||||||||||||||||||||
April-2008 | [***] | April-2012 | [***] | |||||||||||||||||||||||||||||
May-2008 | [***] | May-2012 | [***] | |||||||||||||||||||||||||||||
June-2008 | [***] | June-2012 | [***] | |||||||||||||||||||||||||||||
July-2008 | [***] | July-2012 | [***] | |||||||||||||||||||||||||||||
August-2008 | [***] | August-2012 | [***] | |||||||||||||||||||||||||||||
September-2008 | [***] | September-2012 | [***] | |||||||||||||||||||||||||||||
October-2008 | [***] | October-2012 | [***] | |||||||||||||||||||||||||||||
November-2008 | [***] | November-2012 | [***] | |||||||||||||||||||||||||||||
December-2008 | [***] | December-2012 | [***] | |||||||||||||||||||||||||||||
January-2009 | [***] | January-2013 | [***] | |||||||||||||||||||||||||||||
February-2009 | [***] | February-2013 | [***] | |||||||||||||||||||||||||||||
March-2009 | [***] | March-2013 | [***] | |||||||||||||||||||||||||||||
April-2009 | [***] | April-2013 | [***] | |||||||||||||||||||||||||||||
May-2009 | [***] | May-2013 | [***] | |||||||||||||||||||||||||||||
June-2009 | [***] | June-2013 | [***] | |||||||||||||||||||||||||||||
July-2009 | [***] | July-2013 | [***] | |||||||||||||||||||||||||||||
August-2009 | [***] | August-2013 | [***] | |||||||||||||||||||||||||||||
September-2009 | [***] | September-2013 | [***] | |||||||||||||||||||||||||||||
October-2009 | [***] | October-2013 | [***] | |||||||||||||||||||||||||||||
November-2009 | [***] | November-2013 | [***] | |||||||||||||||||||||||||||||
December-2009 | [***] | December-2013 | [***] |
8 | ||||||||||||||||||||||||||||||||
Spirit Airlines - A320 Family LA No. 1 to Amendment No. 9 | PRIVILEGED AND CONFIDENTIAL |
MSN | Model | |||||||
[***] | [***] |
9 | ||||||||||||||||||||||||||||||||
Spirit Airlines - A320 Family LA No. 1 to Amendment No. 9 | PRIVILEGED AND CONFIDENTIAL |
1 - | CANCELLATION OF CONVERSION A320 AIRCRAFT |
CAC ID No. | Scheduled Delivery Month | |||||||
[***] | [***] |
2 - | CONVERSION OF A319 AIRCRAFT |
3 - | DELIVERY |
9.1.1 | Subject to Clauses 2, 7, 8, 10 and 18, the Seller will have the Firm Aircraft Ready for Delivery at the Delivery Location within the following months (each a "Scheduled Delivery Month"). |
A319 Aircraft | Quantity | Month | Year | CAC ID No. | ||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | October | 2006 | 179484 | ||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | October | 2006 | 179485 | ||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | November | 2006 | 179486 | ||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | November | 2006 | 179487 | ||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | December | 2006 | 179488 | ||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | February | 2008 | 179493 | ||||||||||||||||||||||||||||||||||||||||
A319 Firm Aircraft | 1 | February | 2008 | 179494 | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Finn Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Additional A319 Firm Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||||||||||||||||||||
Total A319 Aircraft | 20 |
A320 Aircraft | Quantity | Month | Year | CAC ID No. | ||||||||||||||||||||||
Conversion A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
Conversion A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
Conversion A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | [***] | [***] | [***] |
Converted Additional A320 Aircraft | 1 | * | **** | * | **** | * | **** | |||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | * | **** | * | **** | * | **** | |||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | * | **** | * | **** | * | **** | |||||||||||||||||||||||||||||||||||||
Converted Additional A320 Aircraft | 1 | * | **** | * | **** | * | **** | |||||||||||||||||||||||||||||||||||||
Total A320 Aircraft | 20 |
4 - | CONDITIONS PRECEDENT |
4.1 | All of the following conditions precedent are to be met on or before July 31, 2009: |
(i) | the Buyer and Seller will have (a) received approval of their respective Boards of Directors to enter into this Amendment and (b) executed this Amendment, |
(ii) | no event will have occurred and be continuing which constitutes a Buyer Termination Event under the Agreement, |
(iii) | the Seller will have received from the Buyer any Predelivery Payments that are due and payable upon execution of this Amendment, |
(iv) | the Buyer and the Leasing Company will have entered into a legally binding and enforceable agreement under which the Buyer will lease [***] new A320 aircraft from the Leasing Company and all such aircraft will be scheduled for delivery from the Leasing Company to the Buyer by the end of the second calendar quarter of 2010, and |
(v) | (a) the Seller and the Leasing Company will have executed a legally binding and enforceable agreement under which the Seller will sell to the Leasing Company and the Leasing Company will purchase from the Seller [***] firmly ordered A320 aircraft and (b) the Seller will have received from the Leasing Company any payments that are due and payable upon execution of such agreement. |
4.2 | If any of the above conditions precedent are not met on or before July 31, 2009, then this Amendment and the terms herein will be null and void with immediate effect and the Agreement will remain in full and force and effect as if this Amendment had not been signed by the parties hereto. |
5 - | EFFECT OF THE AMENDMENT |
5.1 | This Amendment contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous understanding, commitments or representations whatsoever, whether oral or written between the Buyer and the Seller. |
5.2 | The Agreement will be deemed amended to the extent provided in this Amendment and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. Both parties agree that this Amendment will constitute an integral, nonseverable part of the Agreement and be governed by its provisions, except that if the Agreement and this Amendment have specific provisions that are inconsistent, the specific provisions contained in this Amendment will govern. |
6 - | CONFIDENTIALITY |
7 - | GOVERNING LAW |
7.1 | THIS AMENDMENT AND THE AGREEMENTS CONTEMPLATED HEREIN WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE 22.4 OF THE AGREEMENT. |
7.2 | IT IS AGREED THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS AMENDMENT. |
8 - | COUNTERPARTS |
SPIRIT AIRLINES, INC. | AIRBUS S.A.S. | |||||||||||||||||||||||||
By: | /s/ David Lancelot | By: | /s/ Christophe Mourey | |||||||||||||||||||||||
Its: | SVP & CFO | Its: | Senior Vice President Contracts |
1- | PREDELIVERY PAYMENTS |
1.1 | Converted Additional A319 Aircraft |
1.2 | Predelivery Payments for Cancelled Aircraft |
1.2.1 | The Seller acknowledges receipt from the Buyer of [***] (the "Prior Payments") in respect of the Initial Payment and Predelivery Payments made in respect of the Cancelled Aircraft. |
1.2.2 | The Seller and the Buyer agree that the Prior Payments will be disposed of as follows: |
(i) | [***] |
(ii) | [***] |
(iii) | [***] |
(iv) | [***] |
2- | CREDIT MEMORANDUMS |
2.1 | Letter Agreement No. 1 to Amendment No. 9 |
4.1 | [***]. |
4.2 | [***] |
2.2 | Letter Agreement No. 2 to Amendment No. 4 |
2.2.1 | Advanced A319/A321 Credit Memorandum |
2.2.2 | A320 Family Price Harmonization Credit Memorandum |
4.1 | [***] |
4.2. | [***] |
4.3 | Intentionally Left Blank |
4.4 | [***] |
3- | RESCISSION OF MAY 2009 NOTICE |
4- | CONFIDENTIALITY |
5- | GOVERNING LAW |
6- | COUNTERPARTS |
Very truly yours, | ||||||||
AIRBUS S.A.S. | ||||||||
By: | /s/ Christophe Mourey | |||||||
Its: | Senior Vice President Contracts |
Accepted and Agreed, | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ David Lancelot | |||||||
Its: | SVP & CFO |
Spirit Airlines - A320 Family Aircraft | LA1-1 |
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 - | TERMINATION |
14 - | ASSIGNMENT |
Spirit Airlines - A320 Family Aircraft | LA1-2 |
1. | GENERAL |
1.1 | Material |
(a) | Seller Parts (defined as industrial proprietary components, equipment, accessories or parts of the Manufacturer manufactured to the detailed design of the Manufacturer or a subcontractor of it and bearing official part numbers of the Manufacturer or material for which the Seller has exclusive sales rights in the United States). |
(b) | Supplier Parts classified as Repairable Line Maintenance Parts in accordance with SPEC 2000. |
(c) | Supplier Parts classified as Expendable Line Maintenance Parts in accordance with SPEC 2000. |
(d) | Ground Support Equipment (GSE) and Specific (To-Type) tools. |
(e) | Hardware and standard material. |
(f) | Consumables and raw material as a package. |
1.2 | Scope of Material Support |
1.2.1 | The Material Support to be provided by the Seller hereunder covers the following: |
(a) | The terms pursuant to which the Material shall be purchased by the Buyer from the Seller during the Initial Provisioning Period (defined below in Paragraph 2) the "Initial Provisioning"), and |
Spirit Airlines - A320 Family Aircraft | LA1-3 |
(b) | the terms pursuant to which the Material shall be purchased by Buyer after the Initial Provisioning Period; and |
(c) | the terms under which Seller shall lease certain Seller Parts to Buyer for Buyer's use on its Aircraft in commercial air transport service as set forth in Paragraph 12 of this Letter Agreement 1. |
1.2.2 | Propulsion Systems, including associated parts and spare parts therefore, are not covered under this Letter Agreement 1 and will be the subject of separate direct negotiations and agreements between the Buyer and the relevant Propulsion Systems manufacturer(s). |
1.2.3 | During a period commencing on the date hereof and continuing for as long as at least five (5) aircraft of the type of the Aircraft are operated 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 and will make these available to Buyer for purchase or lease so as to permit Buyer to meet its needs for the maintenance of the Aircraft within its fleet. Such Seller Parts will be sold and delivered in accordance with Paragraphs 4 and 5 of this Letter Agreement 1, upon receipt of the Buyer's orders. |
1.3 | Purchase Source of Material |
Spirit Airlines - A320 Family Aircraft | LA1-4 |
1.4 | Manufacture of Material by the Buyer |
1.4.1 | [***] |
(a) | [***] |
(b) | [***] |
(c) | [***] |
(d) | [***] |
1.4.2 | [***] |
1.4.3 | [***] |
Spirit Airlines - A320 Family Aircraft | LA1-5 |
2. | INITIAL PROVISIONING |
2.1 | Seller-Supplied Data |
2.1.1 | Initial Provisioning Data - Seller |
2.1.2 | Supplementary Data |
2.1.3 | Data for Standard Hardware |
2.2 | Supplier-Supplied Data |
2.2.1 | General |
Spirit Airlines - A320 Family Aircraft | LA1-6 |
2.2.2 | Initial Provisioning Data - Supplier |
2.3 | Preprovisioning Meeting |
2.3.1 | The Seller will organize a meeting (i) at its Material Support Center in Hamburg, Germany ("MSC"), (ii) at ANACS or (iii) at a place to be mutually agreed, in order to formulate an acceptable schedule and working procedure to accomplish the Initial Provisioning of Material (the "Preprovisioning Meeting"). |
2.3.2 | The date of the Preprovisioning Meeting will be mutually agreed upon, but will take place, as soon as possible following execution of the Agreement. |
2.4 | Initial Provisioning Training |
Spirit Airlines - A320 Family Aircraft | LA1-7 |
2.5 | 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. |
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 Seller, in addition, will use its reasonable efforts to cause Suppliers to provide a similar service for their items. |
2.7 | Delivery of Initial Provisioning Material |
2.7.1 | To support the operation of the Aircraft, the Seller will use its reasonable efforts to deliver Initial Provisioning Material in Paragraph 1.1(a) of this Letter Agreement 1 according to the following schedule, provided orders therefor are received by the Seller in accordance with published lead time: |
Spirit Airlines - A320 Family Aircraft | LA1-8 |
(a) | [***] |
(b) | [***] |
(c) | [***] |
(d) | [***] |
2.7.2 | The Buyer, subject to the Seller's agreement, may cancel or modify Initial Provisioning orders placed with the Seller with no cancellation charge as follows: |
(a) | [***] |
(b) | [***] |
(c) | [***] |
2.7.3 | Should the Buyer cancel or modify any orders for Material outside the time limits defined above in Paragraph 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. |
Spirit Airlines - A320 Family Aircraft | LA1-9 |
2.7.4 | All transportation costs for the return of Material under this Paragraph 2, including any insurance and customs duties applicable or other related expenditures, will be borne by the Buyer. |
3. | STORES |
3.1 | ANACS Spares Center |
3.2 | Material Support Center, Germany |
3.3 | Other Points of Shipment |
Spirit Airlines - A320 Family Aircraft | LA1-10 |
4. | DELIVERY |
4.1 | General |
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" (latest edition). |
4.2.2 | Material will be dispatched within the lead times quoted in the published Seller's price catalog for Material described in Paragraph 1.1(a), and within the Supplier'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 Paragraphs 1.1(b) through 1.1(d). |
4.2.3 | Expedited Service |
(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 expedited order from the Buyer. |
Spirit Airlines - A320 Family Aircraft | LA1-11 |
4.3 | Delivery Status |
4.4 | Excusable Delay |
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 advise the Seller of any alleged shortages or overshipments of units or kits, as applicable with respect to such purchase order and of all claimed nonconformance to specification of parts in such order inspected by the Buyer. |
4.5.2 | In the event that the Buyer reports overshipments or nonconformance to the specifications within the period defined above in Paragraph 4.5.1, the Seller will, if such report is verified, promptly either replace the Material concerned or credit the Buyer for Material returned. In such case, transportation charges for the nonconforming or overshipments of parts will be borne by the Seller. |
Spirit Airlines - A320 Family Aircraft | LA1-12 |
4.6 | Cessation of Deliveries |
5. | PRICE |
5.1 | The Material prices will be: |
5.1.1 | Free Carrier as defined by the publication No. 560 of the International Chamber of Commerce published in January 2000 (FCA) ANACS Spares Center for deliveries from ANACS. |
5.1.2 | FCA place specified by the Seller for deliveries from other Seller or Supplier facilities. |
5.2 | Validity of Prices |
5.2.1 | [***] |
5.2.2 | [***] |
• | [***] |
• | [***] |
• | [***] |
5.2.3 | [***] |
5.2.4 | [***] |
5.2.5 | [***] |
Spirit Airlines - A320 Family Aircraft | LA1-13 |
6. | PAYMENT PROCEDURES AND CONDITIONS |
6.1 | Currency |
6.2 | Time and Means of Payment |
6.3 | Bank Accounts |
(a) | For wire transfers, in favor of Airbus North America Customer Services, Inc.: |
(b) | For direct deposit (lockbox), in favor of Airbus North America Customer Services, Inc.: |
6.4 | Taxes |
6.5 | [***] |
Spirit Airlines - A320 Family Aircraft | LA1-14 |
7. | TITLE |
8. | PACKAGING |
9. | DATA RETREIVAL |
10. | BUY-BACK |
10.1 | Buy-Back of Obsolete Material |
(a) | [***] |
(b) | [***] |
(c) | [***] |
Spirit Airlines - A320 Family Aircraft | LA1-15 |
10.2 | Buy-Back of Surplus Material |
10.2.1 | [***] |
10.2.2 | [***] |
10.2.3 | [***] |
10.2.4 | [***] |
10.3 | [***] |
10.4 | [***] |
Spirit Airlines - A320 Family Aircraft | LA1-16 |
11.1 | WARRANTIES ON SELLER PARTS |
11.1 | WARRANTY |
11.1.1. | Nature of Warranty |
(i) | in material, |
Spirit Airlines - A320 Family Aircraft | LA1-17 |
(ii) | in workmanship, including, without limitation, processes of manufacture, and |
(iii) | in design (including, without limitation, selection of materials) having regard to the state of the art at the date of such design. |
11.1.2 | Exceptions |
11.1.3 | Warranty Periods |
11.1.4 | Limitations of Warranty |
11.2 | EXCLUSIVITY OF WARRANTIES |
Spirit Airlines - A320 Family Aircraft | LA1-18 |
(1) | ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR ANY GENERAL OR PARTICULAR PURPOSE; |
(2) | ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; |
(3) | ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT; |
(4) | ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY THEORY OF LIABILITY, HOWEVER ALLEGED, INCLUDING, BUT NOT LIMITED TO, ACTIONS AND/OR CLAIMS FOR NEGLIGENCE, GROSS NEGLIGENCE, INTENTIONAL ACTS, WILLFUL DISREGARD, IMPLIED WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY OR FAILURE TO WARN; |
(5) | ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL STATUTE; |
(6) | ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR LOCAL STATUTE OR AGENCY; |
Spirit Airlines - A320 Family Aircraft | LA1-19 |
(7) | ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED FOR: |
(a) | LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT, OR PART PROVIDED UNDER THE AGREEMENT DUE TO A DEFECT, NONCONFORMITY OR OTHER PROBLEM IN ANY SELLER PART; |
(b) | LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART DUE TO A DEFECT, NONCONFORMITY OR OTHER PROBLEM IN ANY SELLER PART; |
(c) | LOSS OF PROFITS AND/OR REVENUES; |
(d) | ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE. |
11.3 | DUPLICATE REMEDIES |
Spirit Airlines - A320 Family Aircraft | LA1-20 |
11.4 | NEGOTIATED AGREEMENT |
12. | LEASING OF SPARE PARTS |
12.1 | Applicable Terms |
Spirit Airlines - A320 Family Aircraft | LA1-21 |
12.2 | Lease Procedure: Spare Parts Leased |
12.3 | Lease Term: Return |
12.4 | Lease Charges and Taxes |
Spirit Airlines - A320 Family Aircraft | LA1-22 |
12.5 | Title |
12.6 | Risk of Loss |
12.7 | Record of Flight Hours |
Spirit Airlines - A320 Family Aircraft | LA1-23 |
12.8 | Option to Purchase |
12.8.1 | Option to Purchase |
12.8.2 | In the event of purchase, the Leased Part will be warranted in accordance with Paragraph 11 of this Letter Agreement 1 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 [***] from the date of purchase of such Leased Part. A warranty granted under this Paragraph 12.8.2 will be in substitution for the warranty granted under Paragraph 12.9 at the commencement of the Lease Term. |
Spirit Airlines - A320 Family Aircraft | LA1-24 |
12.9 | Warranties on Leased Parts |
12.9.1 | The Lessor warrants that each Leased Part will at the time of delivery thereof: |
(a) | conform to the applicable specification for such part, |
(b) | be free from defects in material and |
(c) | be free from defects in workmanship, including without limitation processes of manufacture. |
12.9.2 | Survival of Warranties |
Spirit Airlines - A320 Family Aircraft | LA1-25 |
12.9.3 | Warranty and Notice Periods |
12.9.4 | Return and Proof |
(a) | the return by the Lessee as soon as reasonably 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 Paragraph 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 applicable governmental regulations and the Lessor's applicable written instructions. |
12.9.5 | Limitation of Warranty |
Spirit Airlines - A320 Family Aircraft | LA1-26 |
12.9.6 | Suspension and Transportation Costs |
12.9.6.1 | [***] |
12.9.6.2 | [***] |
12.9.7 | Wear and Tear |
12.9.8 | EXCLUSIVITY OF WARRANTIES |
Spirit Airlines - A320 Family Aircraft | LA1-27 |
(1) | ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR ANY GENERAL OR PARTICULAR PURPOSE; |
(2) | ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; |
(3) | ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT; |
(4) | ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY THEORY OF LIABILITY, HOWEVER ALLEGED, INCLUDING, BUT NOT LIMITED TO, ACTIONS AND/OR CLAIMS FOR NEGLIGENCE, GROSS NEGLIGENCE, INTENTIONAL ACTS, WILLFUL DISREGARD, IMPLIED WARRANTY, PRODUCT LIABILITY, STRICT LIABILITY OR FAILURE TO WARN; |
(5) | ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL STATUTE; |
(6) | ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR LOCAL STATUTE OR AGENCY; |
(7) | ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED FOR: |
(a) | LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT, OR LEASED PART; |
(b) | LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT OR LEASED PART; |
Spirit Airlines - A320 Family Aircraft | LA1-28 |
(c) | LOSS OF PROFITS AND/OR REVENUES; |
(d) | ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE. |
12.9.9 | DUPLICATE REMEDIES |
Spirit Airlines - A320 Family Aircraft | LA1-29 |
12.10 | NEGOTIATED AGREEMENT |
Spirit Airlines - A320 Family Aircraft | LA1-30 |
Spirit Airlines - A320 Family Aircraft | LA1-31 |
13. | TERMINATION |
14. | ASSIGNMENT |
15. | COUNTERPARTS |
Spirit Airlines - A320 Family Aircraft | LA1-32 |
Very truly yours, | ||||||||
AVSA, S.A.R.L. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Accepted and Agreed | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Spirit Airlines - A320 Family Aircraft | LA1-33 |
Spirit Airlines - A320 Family | LA2-1 |
1. | Paragraphs 5.2.1 and 5.2.2 of the Agreement are deleted in their entirety and replaced with the following language between "QUOTE" and "UNQUOTE": |
5.2.1 | Predelivery payments will be paid by the Buyer to the Seller for each Aircraft. Predelivery payments are nonrefundable (although amounts equal to Predelivery Payments may be paid to the Buyer under Clause 10.4, 11.3 and 21.2.2 of this Agreement). The aggregate Predelivery Payment amount is [***] of the Predelivery Payment Reference Price defined below in Clause 5.2.2. |
5.2.2 | The Predelivery Payment Reference Prices |
5.2.2.1 | The Predelivery Payment Reference Price [***] is equal to the Base Price of the Aircraft as defined in Clause 3 of the Agreement. |
5.2.2.2 | The Predelivery Payment Reference Price for the Option Aircraft and the Rolling Option Aircraft converted to Firm Aircraft is defined as: |
Spirit Airlines - A320 Family | LA2-2 |
2. | Clause 5.2.3 of the Agreement is deleted in its entirety and replaced with the following language between "QUOTE" and "UNQUOTE": |
5.2.3 | Predelivery Payments will be paid according to the following schedule. |
Payment Date | Percentage of Predelivery Payment Reference Price | |||||||
[***] | [***] |
Spirit Airlines - A320 Family | LA2-3 |
3. | Clause 5.2.4 below contained between the words "QUOTE" and "UNQUOTE" is added: |
5.2.4 | [***] |
4. | Clause 5.2.4 of the Agreement is renumbered Clause 5.2.5. |
5. | Clause 5.2.5 of the Agreement is renumbered Clause 5.2.6. |
6. | Clause 5.4 of the Agreement is deleted in its entirety and replaced with the following language between the words "QUOTE" and "UNQUOTE": |
Spirit Airlines - A320 Family | LA2-4 |
5.4 | Payment of Balance of the Final Contract Price |
7. | ASSIGNMENT |
8. | COUNTERPARTS |
Spirit Airlines - A320 Family | LA2-5 |
AVSA, S.A.R.L. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Accepted and Agreed | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Spirit Airlines - A320 Family | LA2-6 |
Spirit Airlines - A320 Family Aircraft | LA3-1 |
1. | Credit Memorandum |
1.1 | Applicability of Credit Memoranda |
1.1.1 | All credit memoranda described in this Paragraph 1 are based on January 2003 delivery conditions and are subject to price revision to the date of Delivery of the applicable Aircraft in accordance with the Seller Price Revision Formula annexed to the Agreement in Exhibit G. |
1.1.2 | [***] |
1.2 | Credit Memorandum |
2. | Special Credit Memorandum |
2.1 | [***] |
2.1.1 | [***] |
2.1.2 | [***] |
2.1.3 | [***] |
2.1.4 | [***] |
2.2 | A321 Credit Memorandum |
2.2.1 | [***] |
2.2.2 | [***] |
2.2.3 | [***] |
3. | A320 Operations Credit Memorandum |
3.1 | [***] |
3.1.2 | [***] |
3.1.3 | [***] |
Spirit Airlines - A320 Family Aircraft | LA3-2 |
4. | Support Credit Memorandum |
4.1 | [***] |
4.1.2 | [***] |
4.1.3 | [***] |
5. | Assignment |
6. | Counterparts |
Spirit Airlines - A320 Family Aircraft | LA3-3 |
Very truly yours, | ||||||||
AVSA, S.A.R.L. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Agreed and Accepted | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Spirit Airlines - A320 Family Aircraft | LA3-4 |
Spirit Airlines - A319/A320/A321 Purchase Agreement | LA4-1 |
1. | OPTION AIRCRAFT |
1.1 | Option Exercise |
1.1.1 | The Seller grants the Buyer the right to purchases up to [***] A319 Aircraft (the "Option Aircraft") for delivery in the following delivery quarters: |
1.1.2 | Delivery | # of Option Aircraft | Delivery | # of Option Aircraft | ||||||||||||||||||||||||||||
[***] | [***] | [***] | [***] |
1.1.3 | The foregoing delivery quarters are provisional and will remain subject to prior sale and the Seller's and the Manufacturer's commercial and industrial constraints until the relevant Option Aircraft is converted into a firm order for an A319 Aircraft. |
1.1.4 | [***] |
1.1.5 | [***] |
1.1.6 | [***] |
1.1.7 | [***] |
1.1.8 | [***] |
1.1.9 | [***] |
1.2 | Base Price |
1.3 | Training Support |
(i) | [***] |
(ii) | [***] |
Spirit Airlines - A319/A320/A321 Purchase Agreement | LA4-2 |
2. | [***] |
2.1 | [***] |
2.2 | [***] |
3. | CONVERSION AIRCRAFT |
3.1 | The Seller grants the Buyer the one-time right, per A319 Aircraft, to convert any A319 Aircraft into an A320 Aircraft (the "Conversion A320 Aircraft") or an A321Aircraft (the "Conversion A321 Aircraft") (collectively the "Conversion Aircraft"), provided that the Buyer notifies the Seller in writing at least [***] in advance of the Scheduled Delivery Month of the initially ordered A319 Aircraft contemplated for conversion. Once exercised, the conversion is irrevocable. The scheduled delivery month in respect to Conversion Aircraft shall be as close as possible to the initially ordered A319 Aircraft, subject to the Seller's and the Manufacturer's then prevailing industrial and commercial constraints and other dispositions. The Base Prices of any Conversion Aircraft will be pursuant to Clause 3 of the Agreement as applicable to the A320 Aircraft and/or the A321 Aircraft. In addition, the provisions of Paragraph 3 to Letter Agreement No. 9 of the Agreement shall be applicable in so far as such provisions are applicable to the Conversion Aircraft. All Airframe prices will be subject to revision until Delivery of the relevant Aircraft in accordance with the Seller's Price Revision Formula and all Propulsion System prices are subject to revision until Delivery of the relevant Aircraft in accordance with the Propulsion Systems Price Revision Formula in Exhibit H to the Agreement. |
3.2 | Upon conversion right exercise, the Buyer will pay to the Seller the incremental Predelivery Payments resulting from the difference in Predelivery Payment Reference |
Spirit Airlines - A319/A320/A321 Purchase Agreement | LA4-3 |
Price of the A319 Aircraft and the Conversion A320 Aircraft and/or the Conversion A321 Aircraft, as applicable plus any other then due Predelivery Payments pursuant to Clause 5 in respect of the relevant Conversion Aircraft. The conversion shall only be effective upon receipt by the Seller of such Predelivery Payments. |
3.3 | [***] |
4. | CREDIT MEMORANDA WITH RESPECT TO OPTION AIRCRAFT AND CONVERSION AIRCRAFT |
4.1 | [***] |
4.2 | [***] |
4.3 | [***] |
Spirit Airlines - A319/A320/A321 Purchase Agreement | LA4-5 |
4.4 | [***] |
5. | ASSIGNMENT |
6. | COUNTERPARTS |
Spirit Airlines - A319/A320/A321 Purchase Agreement | LA4-6 |
Very truly yours, | ||||||||
AVSA, S.A.R.L. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Accepted and Agreed | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Spirit Airlines - A319/A320/A321 Purchase Agreement | LA4-7 |
1. | Clause 14.5 of the Agreement is deleted in it is entirety and replaced with the following language between the words "QUOTE" and "UNQUOTE": |
14.5 | Revision Service |
2. | Clause 14.8 of the Agreement is deleted in its entirety and replaced with the following language between the words "QUOTE" and "UNQUOTE": |
14.8 | Technical Data Familiarization |
3. | Aircraft Maintenance Analysis Tool - AIRMAN |
3.1 | [***] |
3.2 | [***] |
3.3 | [***] |
4. | Less Paper Cockpit (LPC) Package |
4.1 | [***] |
4.2 | [***] |
4.3 | [***] |
5. | Maintenance Planning Data Support |
5.1 | [***] |
5.2 | [***] |
6. | Paragraph 1.1 of Appendix A to Clause 16 of the Agreement is deleted in its entirety and replaced with the following language between the words "QUOTE" and "UNQUOTE": |
1.1 | Flight Crew Training. |
7. | [***] |
8. | [***] |
9. | Significant Warranty Claims |
10. | Leased Aircraft Warranty |
11. | ASSIGNMENT |
12. | COUNTERPARTS |
Very truly yours, | ||||||||
AVSA, S.A.R.L. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Accepted and Agreed | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Spirit Airlines - A320 Family | LA6-1 |
1 | AIRCRAFT CONFIGURATION |
1.1 | A319-100 With International Aero Engines (IAE) V2524-A5 engines |
1.2 | A320-200 with International Aero Engines (IAE) V2527-A5 engines |
1.3 | A320-200 with International Aero Engines (IAE) V2533-A5 engines |
2 | GUARANTEED PERFORMANCE |
2.1 | [***] |
2.2 | [***] |
2.3 | [***] |
Spirit Airlines - A320 Family | LA6-2 |
2.4 | [***] |
2.4.1 | [***] |
2.4.2 | [***] |
2.4.3 | [***] |
3 | MANUFACTURER'S WEIGHT EMPTY |
3.1 | [***] |
3.2 | [***] |
3.3 | [***] |
4 | GUARANTEE CONDITIONS |
4.1 | [***] |
4.2 | [***] |
Spirit Airlines - A320 Family | LA6-3 |
4.2.1 | [***] |
4.3 | [***] |
4.4 | [***] |
4.5 | [***] |
5 | GUARANTEE COMPLIANCE |
5.1 | [***] |
5.2 | [***] |
5.3 | [***] |
5.4 | [***] |
5.5 | [***] |
Spirit Airlines - A320 Family | LA6-4 |
5.6 | [***] |
5.7 | [***] |
6 | ADJUSTMENT OF GUARANTEES |
6.1 | [***] |
6.2 | [***] |
7 | EXCLUSIVE GUARANTEES |
8 | UNDERTAKING REMEDIES |
9 | ASSIGNMENT |
10 | COUNTERPARTS |
Spirit Airlines - A320 Family | LA6-5 |
Very truly yours, | ||||||||
AVSA, S.A.R.L. | ||||||||
By: | /s/ illegible | |||||||
Title: |
Accepted and Agreed | ||||||||
Spirit Airlines, Inc. | ||||||||
By: | /s/ illegible | |||||||
Title: |
Spirit Airlines - A320 Family | LA6-6 |
Spirit Airlines - A320 Family | LA7-1 |
1. | [***] |
1.1 | [***] |
2. | DEFINITIONS |
2.1 | [***] |
Spirit Airlines - A320 Family | LA7-2 |
2.2 | [***] |
2.3 | [***] |
2.4 | [***] |
2.5 | [***] |
Spirit Airlines - A320 Family | LA7-.3 |
2.6 | [***] |
2.7 | [***] |
Spirit Airlines - A320 Family | LA7-4 |
2.8 | [***] |
3. | GUARANTEE |
3.1 | [***] |
3.2 | [***] |
4. | BUYER'S AND SELLER'S OBLIGATION |
4.1 | [***] |
4.2 | [***] |
5. | ADJUSTMENT |
6. | ACHIEVED DISPATCH RELIABILITY REVIEW MEETINGS |
Spirit Airlines - A320 Family | LA7-5 |
7. | LIABILITY LIMITATION |
8. | APPLICABILITY OF AGREEMENT |
9. | ASSIGNMENT |
10. | COUNTERPARTS |
Spirit Airlines - A320 Family | LA7-6 |
Very truly yours, | ||||||||
AVSA, S.A.R.L. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Accepted and Agreed | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Spirit Airlines - A320 Family | LA7-7 |
Spirit Airlines - A320 Family | LA8-1 |
1 | Leased Aircraft |
1.1 | [***] |
1.2 | [***] |
2 | Training and Field Service Support |
2.1 | [***] |
2.2 | [***] |
2.3 | [***] |
Spirit Airlines - A320 Family | LA8-2 |
3 | Assignment |
4 | Counterparts |
Spirit Airlines - A320 Family | LA8-3 |
Very truly yours, | ||||||||
AVSA, S.A.R.L. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Accepted and Agreed | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Spirit Airlines - A320 Family | LA8-4 |
Spirit Airlines - A320 Family | LA9-1 |
1. | Additional Customization Concessions |
1.1 | Overhead Stowage |
1.1.1 | [***] |
1.2 | Decompression Panels |
1.2.1 | [***] |
Spirit Airlines - A320 Family | LA9-2 |
1.3 | Enhanced Protection |
1.3.1 | [***] |
1.4 | [***] |
2. | Take-Off Weight Upgrade on Second-hand Aircraft |
2.1 | [***] |
2.2 | [***] |
3. | Retrofit Modifications |
Spirit Airlines - A320 Family | LA9-3 |
4. | Post-Delivery Lavatory Modifications |
Spirit Airlines - A320 Family | LA9-4 |
5. | Assignment |
6. | Counterparts |
Spirit Airlines - A320 Family | LA9-5 |
Very truly yours, | ||||||||
AVSA, S.A.R.L. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Accepted and Agreed | ||||||||
Spirit Airlines, Inc. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Spirit Airlines - A320 Family | LA9-6 |
Spirit Airlines - A320 Family | LA10-1 |
1. | [***] |
1.1 | [***] |
1.2 | [***] |
2. | [***] |
2.1 | [***] |
2.2 | [***] |
3. | Assignment |
4. | Counterparts |
Spirit Airlines - A320 Family | LA10-2 |
Very truly yours, | ||||||||
AVSA, S.A.R.L. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Accepted and Agreed | ||||||||
Spirit Airlines, Inc. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Spirit Airlines - A320 Family | LA10-3 |
Spirit Airlines - A320 Family Aircraft | LA11-1 |
1. | Clause 5.8 of the Agreement is deleted in its entirety and replaced with the following language between words "QUOTE" and "UNQUOTE". |
5.8 | [***] |
2. | Clauses 7 of the Agreement is deleted in its entirety and replaced with the following language between words "QUOTE" and "UNQUOTE". |
Spirit Airlines - A320 Family Aircraft | LA11-2 |
7 - | CERTIFICATION |
7.1 | Type Certification |
7.2 | Export Certificate of Airworthiness |
7.3 | Specification Changes Before Delivery |
7.3.1 | If, any time before the date on which the Aircraft is Ready for Delivery, any law, rule or regulation is enacted, promulgated, becomes effective and/or an interpretation of any law, rule or regulation is issued by the EASA that requires any change to the Specification for the purposes of obtaining the Export Certificate of Airworthiness (a "Change in Law"), the Seller will make the required modification and the parties hereto will sign an SCN. |
Spirit Airlines - A320 Family Aircraft | LA11-3 |
7.3.2 | The Seller will as far as practicable, but at its sole discretion, take into account the information available to it concerning any proposed law, rule or regulation or interpretation that could become a Change in Law, in order to minimize the costs of changes to the Specification as a result of such proposed law, regulation or interpretation becoming effective. |
7.3.3 | [***] |
7.3.4 | Notwithstanding the provisions of Clauses 7.3.3, if a Change in Law relates to an item of BFE or to the Propulsion Systems (and, in particular, to engine accessories, quick engine change units or thrust reversers) the costs will be borne in accordance with such arrangements as may be made separately between the Buyer and the manufacturer of the BFE or the Propulsion Systems, as applicable, and the Seller will have no obligation with respect thereto. |
7.3.5 | [***] |
Spirit Airlines - A320 Family Aircraft | LA11-4 |
7.4 | Specification Changes After Delivery |
3. | Clause 8.4 of the Agreement is renumbered to Clause 8.5. |
4. | Clause 8.5 of the Agreement is renumbered to Clause 8.6. |
5. | Clause 8.4, below, is added to the Agreement: |
"8.4 | [***] " |
Spirit Airlines - A320 Family Aircraft | LA11-5 |
6. | Clause 8.5 of the Agreement is deleted in its entirety and replaced with the following language between words "QUOTE" and "UNQUOTE". |
8.5 | Finality of Acceptance. |
7. | Clause 9.1.2 of the Agreement is deleted in its entirety and replaced with the following language between words "QUOTE" and "UNQUOTE". |
9.1.2 | Delivery Notices |
9.1.2.1 | [***] |
9.1.2.2 | [***] |
9.1.2.3 | [***] |
Spirit Airlines - A320 Family Aircraft | LA11-6 |
9.1.2.4 | [***] |
8. | Clause 10 of the Agreement is deleted in its entirety and replaced with the following language between the words "QUOTE" and "UNQUOTE." |
10 - | EXCUSABLE DELAY AND TOTAL LOSS |
10.1 | Scope of Excusable Delay |
Spirit Airlines - A320 Family Aircraft | LA11-7 |
10.2 | Consequences of Excusable Delay |
10.2.1 | If an Excusable Delay occurs the Seller will |
(i) | notify the Buyer of such Excusable Delay as soon as practicable after becoming aware of the same; |
(ii) | not be deemed to be in default in the performance of its obligations hereunder as a result of such Excusable Delay; |
(iii) | not be responsible for any damages arising from or in connection with such Excusable Delay suffered or incurred by the Buyer; |
(iv) | as soon as practicable after the removal of the cause of the delay resume performance of its obligations under this Agreement and in particular will notify the Buyer of the revised Scheduled Delivery Month (the "Revised Scheduled Delivery Month"). |
10.3 | Termination on Excusable Delay |
10.3.1 | [***] |
10.3.2 | [***] |
10.3.3 | [***] |
Spirit Airlines - A320 Family Aircraft | LA11-8 |
10.3.4 | [***] |
10.4 | Total Loss, Destruction or Damage |
(i) | the Buyer notifies the Seller within one (1) month of the date of receipt of the Seller's notice that it desires the Seller to provide a replacement aircraft during the month quoted in the Seller's notice; and |
(ii) | the parties execute an amendment to this Agreement recording the variation in the Scheduled Delivery Month. |
Spirit Airlines - A320 Family Aircraft | LA11-9 |
10.5 | Excusable Delay Escalation |
10.6 | REMEDIES |
9. | Clause 11 of the Agreement is deleted in its entirety and replaced with the following language between the words "QUOTE" and "UNQUOTE." |
Spirit Airlines - A320 Family Aircraft | LA11-10 |
11 - | EXCUSABLE DELAY |
11.1.1 | Liquidated Damages in the case of an Inexcusable Delay |
11.1.2 | Liquidated Damages with Short Term Notice Inexcusable Delay |
Spirit Airlines - A320 Family Aircraft | LA11-11 |
11.1.3 | The Buyer shall submit a written claim for liquidated damages to the Seller not later than one thirty (30) days after the last day of the Scheduled Delivery Month (as such month may be changed pursuant to Clauses 2, 7 or 10). |
11.2 | Renegotiation |
11.3 | Termination |
Spirit Airlines - A320 Family Aircraft | LA11-12 |
11.4 | Setoff Payments |
11.5 | Price Revision |
11.6 | REMEDIES |
10. | Clause 16.5.3 of the Agreement is deleted in its entirety and replaced with the following language between the words "QUOTE" and "UNQUOTE." |
16.5.3 | Upon the Buyer's request, the Seller may be consulted to direct the above mentioned trainee(s) through a relevant entry level training program, which will be at the Buyer's charge, and, if necessary, to coordinate with competent outside organizations for this purpose. Such consultation will be held during the Training Conference. |
Spirit Airlines - A320 Family Aircraft | LA11-13 |
11. | Clause 18 of the Agreement is deleted in its entirety and replaced with the following language between the words "QUOTE" and "UNQUOTE." |
18 - | BUYER FURNISHED EQUIPMENT |
18.1 | Administration |
18.1.1 | Without additional charge and in accordance with the Specification, the Seller will cause the Manufacturer to provide for the installation of the Buyer Furnished Equipment ("BFE"), provided that the BFE is referred to in the Airbus BFE Catalog of Approved Suppliers by Products valid at the time the BFE is ordered. |
Spirit Airlines - A320 Family Aircraft | LA11-14 |
18.1.2 | The BFE will be imported into France or into Germany by the Buyer under a suspensive customs system ("Régime de l'entrepôt industriel pour fabrication coordonnée" or "Zollverschluss") without application of any French or German tax or customs duty, and will be Delivered Duty Unpaid (DDU) (as defined in Incoterms 2000:ICC Official Rules for the Interpretation of Trade Terms, published by the International Chamber of Commerce), to |
18.1.3 | [***] |
18.2 | Requirements |
Spirit Airlines - A320 Family Aircraft | LA11-15 |
18.3 | Buyer's Obligation and Seller's Remedies |
18.3.1 | Any delay or failure in |
(i) | furnishing the BFE in serviceable condition at the requested delivery date, |
(ii) | complying with Clause 18.2 or in providing the descriptive information or service representatives required by Clause 18.1.1, or |
(iii) | obtaining any required approval for such equipment under the Aviation Authorities' regulations |
18.3.2 | [***] |
Spirit Airlines - A320 Family Aircraft | LA11-16 |
18.4 | Title and Risk of Loss |
18.5 | Disposition of BFE Following Termination |
18.5.1 | [***] |
18.5.2 | [***] |
18.5.3 | [***] |
Spirit Airlines - A320 Family Aircraft | LA11-17 |
18.5.4 | [***] |
18.5.5 | [***] |
12. | Clause 20 of the Agreement is deleted in its entirety and replaced with the following language between the words "QUOTE" and "UNQUOTE." |
20 - | ASSIGNMENTS AND TRANSFERS |
20.1 | Successors and Assigns |
20.2 | Assignments and Transfers by the Seller |
20.2.1 | Seller Designations |
Spirit Airlines - A320 Family Aircraft | LA11-18 |
20.2.2 | Seller Designations |
20.2.3 | Transfer of Rights and Obligations upon Reorganization |
20.3 | Assignments by the Buyer |
20.3.1 | Assignment on Sale, Merger or Consolidation |
Spirit Airlines - A320 Family Aircraft | LA11-19 |
20.3.2 | Assignment to Affiliate |
Spirit Airlines - A320 Family Aircraft | LA11-20 |
20.3.3 | [***] |
20.3.4 | [***] |
13. | Clause 21 of the Agreement is deleted in its entirety and replaced with the following language between words "QUOTE" and "UNQUOTE". |
Spirit Airlines - A320 Family Aircraft | LA11-21 |
21 - | TERMINATION FOR CERTAIN EVENTS |
21.1 | Buyer Termination Events |
21.1.1 | Each of the following will constitute a "Buyer Termination Event" under this Agreement and immediately upon the occurrence of a Buyer Termination Event, the Buyer will notify the Seller of such occurrence in writing as provided in Clause 22.2 hereof, provided, however, that any failure by the Buyer to notify the Seller will not prejudice the Seller's rights hereunder: |
(1) | The Buyer commences any case, proceeding or other court action with respect to the Buyer in any jurisdiction relating to bankruptcy, insolvency, reorganization, relief from creditors, arrangement, winding-up, liquidation, dissolution or other relief with respect to its debts (a "Buyer Insolvency Proceeding") or any other party commences a Buyer Insolvency Proceeding against the Buyer and such Insolvency Proceeding remains unstayed, undismissed or undischarged for ninety (90) 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 un stayed, undismissed or undischarged for ninety (90) 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 unstayed, undismissed or undischarged for ninety (90) days. |
(4) | The Buyer becomes insolvent or fails generally to pay its debts as they become due. |
(5) | [***] |
(6) | [***] |
(7) | [***] |
Spirit Airlines - A320 Family Aircraft | LA11-22 |
(8) | [***] |
21.1.2 | If a Buyer Termination Event occurs, the Buyer will be in material breach of this Agreement, and the Seller will have the right to resort to any remedy under applicable law, and may, without limitation, by written notice to the Buyer, immediately: |
Spirit Airlines - A320 Family Aircraft | LA11-23 |
21.1.3 | Actual or liquidated damages shall be payable by Buyer promptly, and in any event within ten (10) days of the date of written notice and demand therefor from Seller, such demand to set forth in reasonable detail the calculation of such actual or liquidated damages and shall identify the Termination Event upon which the Seller is relying. The parties agree that the remedy of liquidated damages is not to be denied to the Seller due to the inability of Seller to deliver a notice and demand for payment thereof due to the operation of law following a bankruptcy or other Termination Event under Clause 21.1(1) - (4). The parties further agree that in circumstances where a Termination Event has occurred and the Seller does not cancel this Agreement as to any or all Aircraft, but instead seeks to recover its actual damages resulting therefrom, the amount of actual damages payable by the Buyer shall not exceed the amount of liquidated damages that could have been claimed by Seller pursuant to Clause 21.2 (2) had the Seller elected to claim, as a result of such Termination Event, liquidated damages pursuant to Clause 21.2(2). |
Spirit Airlines - A320 Family Aircraft | LA11-24 |
21.1.4 | The parties to this Agreement are commercially sophisticated parties represented by competent counsel. The parties expressly agree and declare that damages for material breach of this Agreement by the Buyer resulting in a Termination of this Agreement as to any or all Aircraft have been liquidated at amounts which are reasonable in light of the anticipated or actual harm caused by the Buyer's breach, the difficulties of proof of loss and the nonfeasibility of otherwise obtaining an adequate remedy. It is understood and agreed by the parties that the amount of liquidated damages set forth herein is the total amount of monetary damages, no more and no less, to which the Seller will be entitled for and with respect to any Aircraft as recovery for material breach of this Agreement by Buyer resulting in a Termination by the Seller of this Agreement as to such Aircraft. |
21.1.5 | The terms "Affected Aircraft", "Applicable Date and "Escalated Price" are defined as follows: |
(i) | "Affected Aircraft" - (a) any or all Aircraft with respect to which the Seller has cancelled or terminated this Agreement pursuant to Clause 21.1.2(1)(iv). |
(ii) | "Applicable Date" - for any Affected Aircraft the date of the Termination Event which the Seller specifies in its notice and demand for payment of liquidated damages delivered under Clause 21.1(3). |
(iii) | "Escalated Price" - the sum of (i) the Base Price of the Airframe (set forth in Clause 3.1.1 hereof), (ii) the Base Price of SCNs and MSCNs entered into after the date of this Agreement, and (iii) the reference Price of the Propulsion systems, all as escalated to the Applicable Date in accordance with the provisions of Clause 4 of this Agreement. |
21.2 | [***] |
21.2.1 | [***] |
Spirit Airlines - A320 Family Aircraft | LA11-25 |
21.2.2 | [***] |
Spirit Airlines - A320 Family Aircraft | LA11-26 |
21.3 | If at any time prior to Scheduled Delivery Date of an Aircraft, the Seller has reasonable grounds for insecurity as to the ability of the Buyer to perform its obligation to take Delivery of such Aircraft, then the Seller will send the Buyer a written demand for adequate assurance of performance. If adequate assurance reasonably acceptable to the Seller is not received within thirty (30) days following the date of such written demand, then the Seller will have the right to either (a) exercise the remedies provided under Section 2-609 of the Uniform Commercial Code or (b) exercise any of its remedies under Clause 21.1.2 of this Agreement. |
21.4 | [***] |
Spirit Airlines - A320 Family Aircraft | LA11-27 |
14. | ASSIGNMENT |
15. | COUNTERPARTS |
Spirit Airlines - A320 Family Aircraft | LA11-28 |
Very truly yours, | ||||||||
AVSA, S.A.R.L. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Accepted and Agreed | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ illegible | |||||||
Its: |
Spirit Airlines - A320 Family Aircraft | LA11-29 |
1 - | DEFINITIONS |
1.1 | Clause 0 of the Agreement is amended to either modify or add the terms and corresponding definitions set forth in the following quoted text: |
1.2 | The defined term "ANACS" is deleted in its entirety and replaced with the quoted text below. For all purposes of the Agreement, the term "ANACS" shall be read as "AACS." |
2 - | SALE AND PURCHASE |
3 - | IRREVOCABLE CONVERSIONS |
4 - | SPECIFICATION |
4.1 | Clause 2 of the Agreement is deleted in its entirety and replaced with the following quoted text: |
2.1 | Aircraft Specification |
2.1.1 | The A319 Aircraft will be manufactured in accordance with the A319 Specification. The A320 Aircraft will be manufactured in accordance with the A320 Specification. The A320 Group 1 Aircraft will be manufactured in accordance with the A320 Aircraft Iss. 7 Specification. The A320 Group 2 Aircraft, A320 Group 3 Aircraft and A320 NEO Aircraft will be manufactured in accordance with the A320 Aircraft Iss. 8 Specification. The A321 Aircraft will be manufactured in accordance with the A321 Specification. |
2.1.2 | New Engine Option |
2.1.2.1 | The Seller is currently developing a new engine option (the "New Engine Option" or "NEO"), applicable to the A320 family of aircraft. The specification of the A320 NEO Aircraft shall be derived from the current A320 Aircraft Iss. 8 Standard Specification and based on the A320 NEO Propulsion Systems and Sharklets, combined with the required airframe structural adaptations, as well as Aircraft systems and software adaptations required to operate such New Engine Option Aircraft. The foregoing is currently reflected in the Irrevocable SCNs listed in Exhibit A-4C, the implementation of which is hereby irrevocably accepted by the Buyer. |
2.1.2.2 | The New Engine Option shall modify the design weights of the A320 Aircraft Iss. 8 Standard Specification to reflect [***]. It is agreed and understood that the above design weights may be updated by the Seller up and until the final NEO specification freeze. |
2.2 | Specification Amendment |
2.2.1 | Specification Change Notice |
2.2.2 | Development Changes |
2.2.2.1 | Manufacturer Specification Change Notice |
2.2.2.2 | In the event of the Seller revising the Specification to incorporate Development Changes which have no adverse effect on any of the elements as set forth in Clause 2.2.2.1 above, such revision will be performed by the Seller without the Buyer's consent. |
2.2.2.3 | The Seller is considering turning certain items, which are currently BFE in the Specifications, into Seller furnished equipment, and the parties agree that such BFE items shall be excluded from the provisions of Clauses 2.2.1 and 2.2.2 above and, should they become Seller furnished equipment, shall furthermore be chargeable to the Buyer. |
2.3 | Propulsion Systems |
2.3.1 | The Airframe for the A320 Group 1 Aircraft, A320 Group 2 Aircraft and the A320 Group 3 Aircraft will be equipped with a set of two (2) International Aero Engine V2527-A5 Propulsion Systems. |
2.3.2 | A320 NEO Propulsion Systems |
2.3.3 | If the Buyer has not selected the A320 NEO Propulsion Systems as of the date of Amendment No. 11 [***]. |
2.4 | Customization Milestones Chart |
2.4.1 | Within a reasonable period following signature of the Agreement, the Seller will provide the Buyer with a customization milestones chart (the "Customization Milestone Chart"), setting out how far in advance of the Scheduled Delivery Month of the Aircraft an SCN must be executed in order to integrate into the Specification any items requested by the Buyer from the Seller's catalogues of Specification change options (the "Option Catalogues"). |
2.4.2 | Contractual Definition Freeze |
5 - | DELIVERY |
9.1.1 | Subject to Clauses 2, 7, 8, 10 and 18, the Seller will have the Aircraft Ready for Delivery at the Delivery Location within the following calendar quarters (each a "Scheduled Delivery Quarter") or months (each a "Scheduled Delivery Month"). |
9.1.1.1 | The Scheduled Delivery Months for the A319 Aircraft are as follows: |
A319 Aircraft | Quantity | Month | Year | CAC ID No. | ||||||||||||||||||||||
A319 Firm Aircraft | 1 | October | 2006 | 179484 | ||||||||||||||||||||||
A319 Firm Aircraft | 1 | October | 2006 | 179485 | ||||||||||||||||||||||
A319 Firm Aircraft | 1 | November | 2006 | 179486 | ||||||||||||||||||||||
A319 Firm Aircraft | 1 | November | 2006 | 179487 | ||||||||||||||||||||||
A319 Firm Aircraft | 1 | December | 2006 | 179488 | ||||||||||||||||||||||
A319 Firm Aircraft | 1 | February | 2008 | 179493 | ||||||||||||||||||||||
A319 Firm Aircraft | 1 | February | 2008 | 179494 |
9.1.1.2 | The Scheduled Delivery Months for the A320 Aircraft are as follows: |
A320 Aircraft | Quantity | Month | Year | CAC ID No. | ||||||||||||||||||||||
Conversion A320 Aircraft | 1 | November | 2011 | 179491 | ||||||||||||||||||||||
Conversion A320 Aircraft | 1 | December | 2011 | 179492 |
9.1.1.3 | The Scheduled Delivery Months for the A320 Group 1 Aircraft and A320 Group 2 Aircraft are as follows: |
Aircraft | Quantity | Month | Year | CAC ID No. | ||||||||||||||||||||||
A320 Group 1 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 1 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 1 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 1 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 1 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 1 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 1 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] | ||||||||||||||||||||||
A320 Group 2 Aircraft | 1 | [***] | [***] | [***] |
9.1.1.4 | The Scheduled Delivery Quarters for the A320 Group 3 Aircraft are as follows: |
Aircraft Type | Number of Aircraft | Quarter/Year | ||||||||||||
A320 Group 3 Aircraft | 3 | [***] | ||||||||||||
A320 Group 3 Aircraft | 3 | [***] | ||||||||||||
A320 Group 3 Aircraft | 2 | [***] | ||||||||||||
A320 Group 3 Aircraft | 2 | [***] | ||||||||||||
A320 Group 3 Aircraft | 4 | [***] | ||||||||||||
A320 Group 3 Aircraft | 4 | [***] | ||||||||||||
A320 Group 3 Aircraft | 4 | [***] | ||||||||||||
A320 Group 3 Aircraft | 3 | [***] | ||||||||||||
A320 Group 3 Aircraft | 5 | [***] |
9.1.1.5 | The Scheduled Delivery Quarters for the A320 NEO Aircraft are as follows: |
Aircraft Type | Number of Aircraft | Quarter/Year | ||||||||||||
A320 NEO Aircraft | 1 | [***] | ||||||||||||
A320 NEO Aircraft | 2 | [***] | ||||||||||||
A320 NEO Aircraft | 1 | [***] | ||||||||||||
A320 NEO Aircraft | 2 | [***] | ||||||||||||
A320 NEO Aircraft | 3 | [***] | ||||||||||||
A320 NEO Aircraft | 3 | [***] | ||||||||||||
A320 NEO Aircraft | 3 | [***] | ||||||||||||
A320 NEO Aircraft | 4 | [***] | ||||||||||||
A320 NEO Aircraft | 3 | [***] | ||||||||||||
A320 NEO Aircraft | 3 | [***] | ||||||||||||
A320 NEO Aircraft | 3 | [***] | ||||||||||||
A320 NEO Aircraft | 4 | [***] | ||||||||||||
A320 NEO Aircraft | 3 | [***] | ||||||||||||
A320 NEO Aircraft | 3 | [***] | ||||||||||||
A320 NEO Aircraft | 3 | [***] | ||||||||||||
A320 NEO Aircraft | 4 | [***] |
9.1.1.6 | In respect of each Aircraft for which a Scheduled Delivery Quarter is set forth in Clauses 9.1.1.4 and 9.1.1.5 above, the Seller will communicate to the Buyer the Scheduled Delivery Month [***]. |
6 - | PRICE |
6.1 | New Clauses 3.1.1.2.4, 3.1.1.2.5 and 3.1.1.2.6 are added to the Agreement as set forth in the quoted text below: |
3.1.1.2.4 | A320 Group 1 Airframe |
(i) | The Base Price of the A320 Group 1 Airframe, as defined in the A320 Aircraft Iss. 7 Standard Specification (excluding Buyer Furnished Equipment and SCNs) including nacelles and thrust reversers, is: |
(ii) | The sum of the base prices of any and all SCNs set forth in Exhibit A-4A hereto, which is: |
3.1.1.2.5 | A320 Group 2 Airframe and A320 Group 3 Airframe |
(i) | the Base Price of the A320 Group 2 Airframe and the Base Price of the A320 Group 3 Airframe, as defined in the A320 Aircraft Iss. 8 Standard Specification (excluding Buyer Furnished Equipment and SCNs) including nacelles and thrust reversers, is: |
(ii) | the sum of the base prices of any and all SCNs set forth in Exhibit A-4B is: |
3.1.1.2.6 | Base Price of the A320 NEO Airframe |
(i) | the base price of the A320 NEO Airframe as defined in the A320 Aircraft Iss. 8 Standard Specification (excluding Buyer Furnished Equipment), including nacelles and thrust reversers, is: |
(ii) | the sum of the base prices of any and all SCNs (other than Irrevocable SCNs to the extent included in clause (iii) below) set forth in Exhibit A-4C is: |
(iii) | the sum of the base prices of the Irrevocable SCNs set forth in Exhibit A-4C is the sum of: |
(a) | the base price of the New Engine Option is: |
(b) | the base price of the Sharklets is: |
(iv) | the base price of the master charge engine, which is only chargeable in the case of A320 NEO Aircraft equipped with the CFMI LEAP-X1A26 Propulsion System, is: |
6.2 | New Clauses 3.1.1.3.4 and 3.1.1.3.5 are added to the Agreement as set forth in the quoted text below: |
3.1.1.3.4 | The base price (the "CFMI LEAP-X1A26 Base Price") of a set of two (2) CFM International LEAP-X1A26 engines is: |
3.1.1.3.5 | The base price (the "PW1127G Base Price") of a set of two (2) Pratt & Whitney PW1127G engines is: |
3.1.1.3.6 | Notwithstanding the foregoing, the Propulsion Systems Reference Prices correspond to the thrust ratings defined for the respective Propulsion Systems in Clause 2.3.2 and may be revised to reflect thrust rating adjustments upon final NEO specification freeze. |
6.3 | New Clauses 3.2.4 and 3.2.5 are added to the Agreement as set forth in the following quoted text: |
3.2.4 | The Final Contract Price of an A320 Group 1 Aircraft, A320 Group 2 Aircraft and A320 Group 3 Aircraft will be the sum of: |
(i) | the Base Price of the A320 Group 1 Airframe, A320 Group 2 Airframe or A320 Group 3 Airframe, as applicable, as adjusted to the Delivery Date of such Aircraft, in accordance with the Seller Price Revision Formula 2011; |
(ii) | the price of any SCNs for the A320 Group 1 Aircraft, A320 Group 2 Aircraft or A320 Group 3 Aircraft, as applicable, entered into after the date of signature of this Agreement, as adjusted to the Delivery Date of such Aircraft, in accordance with the Seller Price Revision Formula 2011; |
(iii) | the Reference Price of the A320 Propulsion Systems constituting a part of such A320 Group 1 Aircraft, A320 Group 2 Aircraft or A320 Group 3 Aircraft, as applicable, and as adjusted to the Delivery Date of such Aircraft, in accordance with the Propulsion Systems Price Revision Formula; |
(iv) | the aggregate of all increases or decreases to the Propulsion Systems Reference Price as agreed in any Specification Change Notice or part thereof applicable to the Propulsion Systems subsequent to the date of this Agreement as revised as of the Delivery Date in accordance with Clause 4.2; and |
(v) | any other amount resulting from any other provisions of this Agreement and/or any other written agreement between the Buyer and the Seller relating to the A320 Group 1 Aircraft, A320 Group 2 Aircraft or A320 Group 3 Aircraft, as applicable. |
3.2.5 | The Final Contract Price of an A320 NEO Aircraft will be the sum of: |
(i) | the Base Price of the A320 NEO Airframe, as adjusted to the Delivery Date of such A320 NEO Aircraft in accordance with the Seller Price Revision Formula 2011; |
(ii) | the price of any SCNs for the A320 NEO Aircraft entered into after the date of signature of this Amendment, as adjusted to the Delivery Date of such A320 NEO Aircraft in accordance with the Seller Price Revision Formula 2011; |
(iii) | the Propulsion Systems Reference Price, as adjusted to the Delivery Date of such A320 NEO Aircraft in accordance with the relevant Propulsion Systems Price Revision Formula; |
(iv) | the aggregate of all increases or decreases to the Propulsion Systems Reference Price as agreed in any Specification Change Notice or part thereof applicable to the Propulsion Systems subsequent to the date of this Agreement as revised as of the Delivery Date in accordance with Clause 4.2; and |
(v) | any other amount resulting from any other provisions of this Agreement and/or any other written agreement between the Buyer and the Seller relating to the A320 NEO Aircraft. |
6.4 | The following exhibits, as set forth in Appendix 1 hereto, are added to the Agreement: |
(i) | Exhibit A-2A, A320 Aircraft Iss. 7 Standard Specification, |
(ii) | Exhibit A-2B, A320 Aircraft Iss. 8 Standard Specification, |
(iii) | Exhibit A-4A, SCNs for A320 Group 1 Aircraft, |
(iv) | Exhibit A-4B, SCNs for A320 Group 2 Aircraft and A320 Group 3 Aircraft, and |
(v) | Exhibit A-4C, SCNs for A320 NEO Aircraft. |
7 - | PRICE REVISION |
7.1 | Clauses 4.1 and 4.2 of the Agreement are deleted in their entirety and replaced by the following quoted text: |
4.1 | Seller Price Revision Formula |
(i) | The Base Prices of the A319 Airframe, A320 Airframe and A321 Airframe as set forth in Clauses 3.1.1.2.1, 3.1.1.2.2, 3.1.1.2.3 and of Specification Change Notices are subject to revision up to and including the Delivery Date, in accordance with the Seller Price Revision Formula. |
(ii) | The Base Price of the A320 Group 1 Airframe, the Base Price of the A320 Group 2 Airframe, the Base Price of the A320 Group 3 Airframe and the Base Price of the A320 NEO Airframe as set forth in Clauses 3.1.1.2.4, 3.1.1.2.5, 3.1.1.2.6 and of Specification Change Notices are subject to revision up to and including the Delivery Date, in accordance with the Seller Price Revision Formula 2011. |
4.2 | Propulsion Systems Price Revision |
7.2 | The following exhibits, as set forth in Appendix 2 hereto, are added to the Agreement: |
(i) | Exhibit G-2, Seller Price Revision Formula 2011, |
(ii) | Exhibit H-3, CFM International Price Revision Formula, and |
(iii) | Exhibit H-4, PW Price Revision Formula. |
8 - | CONDITION PRECEDENT |
9 - | EFFECT OF THE AMENDMENT |
9.1 | The Agreement as amended by this Amendment contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous understanding, commitments or representations whatsoever, whether oral or written between the Buyer and the Seller. |
9.2 | The Agreement will be deemed amended to the extent provided in this Amendment and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. Both parties agree that this Amendment will constitute an integral, nonseverable part of the Agreement and be governed by its provisions, except that if the Agreement and this Amendment have specific provisions that are inconsistent, the specific provisions contained in this Amendment will govern. |
10 - | CONFIDENTIALITY |
11 - | GOVERNING LAW |
11.1 | THIS AMENDMENT AND THE AGREEMENTS CONTEMPLATED HEREIN WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE 22.4 OF THE AGREEMENT. |
11.2 | IT IS AGREED THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS AMENDMENT. |
12 - | COUNTERPARTS |
SPIRIT AIRLINES, INC. | AIRBUS S.A.S. | |||||||||||||||||||||||||
By: | /s/ David Lancelot | By: | /s/ Christophe Mourey | |||||||||||||||||||||||
Its: | Senior VP and Chief Financial Officer | Its: | Senior Vice President Contracts |
Exhibit A-2A | A320 Aircraft Iss. 7 Standard Specification | |||||||
Exhibit A-2B | A320 Aircraft Iss. 8 Standard Specification | |||||||
Exhibit A-4A | SCNs for A320 Group 1 Aircraft | |||||||
Exhibit A-4B | SCNs for A320 Group 2 Aircraft and A320 Group 3 Aircraft | |||||||
Exhibit A-4C | SCNs for A320 NEO Aircraft |
Exhibit G-2 | Seller Price Revision Formula 2011 | |||||||
Exhibit H-3 | CFM International Price Revision Formula | |||||||
Exhibit H-4 | PW Price Revision Formula |
1.1 | Base Prices |
1.2 | Base Period |
1.3 | Indexes |
1.4 | Revision Formula |
1.5 | General Provisions |
1.5.1 | Rounding |
1.5.2 | Substitution of Indexes for Airbus Price Revision Formula |
(i) | the United States Department of Labor substantially revises the methodology of calculation of the Labor Index or the Material Index as used in the Airbus Price Revision Formula, or |
(ii) | the United States Department of Labor discontinues, either temporarily or permanently, such Labor Index or such Material Index, or |
(iii) | the data samples used to calculate such Labor Index or such Material Index are substantially changed; |
1.5.3 | Final Index Values |
1.5.4 | Limitation |
1.1 | Reference Price of the NEO Propulsion Systems |
1.2 | Reference Period |
1.3 | Indexes |
1.4 | Revision Formula |
1.5 | General Provisions |
1.5.1 | Roundings |
(i) | The Material Index average (ICn) shall be rounded to the nearest second decimal place and the Labor Index average (ECIn) shall be rounded to the nearest first decimal place. |
(ii) | CPIn shall be rounded to the nearest second decimal place. |
(iii) | The final factor (CPIn/186.92) shall be rounded to the nearest third decimal place. |
1.5.2 | Final Index Values |
1.5.3 | Interruption of Index Publication |
1.5.4 | Annulment of the Formula |
1.5.5 | Limitation |
1.1 | Reference Price of the Propulsion Systems |
1.2 | Base Period |
1.3 | Indexes |
1.4 | Revision Formula |
1.5 | General Provisions |
1.5.1 | Roundings |
1.5.2 | Substitution of Indexes for Price Revision Formula |
(i) | the United States Department of Labor substantially revises the methodology of calculation of the Labor Index, the Material Index, or the Metal Index as used in the Price Revision Formula, or |
(ii) | the United States Department of Labor discontinues, either temporarily or permanently, such Labor Index, such Material Index, or such Metal Index, or |
(iii) | the data samples used to calculate such Labor Index , such Material Index, or such Metal Index are substantially changed; |
1.5.3 | Final Index Values |
1.5.4 | Limitation |
1 | A320 GROUP 1 AIRCRAFT AND A320 GROUP 2 AIRCRAFT |
1.4 | Any and all credit memoranda granted to the Buyer, prior to the date of the Amendment, for the Conversion A320 Aircraft (excluding Conversion A320 Aircraft with CAC ID Numbers 179491 and 179492), and the Converted Additional A320 Aircraft, now A320 Group 1 Aircraft and A320 Group 2 Aircraft, respectively, are hereby cancelled and superseded by the A320 Aircraft Credit Memoranda in Paragraph 1 above. |
2 | A320 GROUP 3 AIRCRAFT |
3 | SPECIFICATION CHANGES CREDIT MEMORANDA |
4 | A320 NEO AIRCRAFT |
4.1.1 | In respect of each A320 NEO Aircraft, the Seller will provide to the Buyer the following credits (collectively, the "A320 NEO Aircraft Credit Memoranda"): |
4.1.2 | The A320 NEO Aircraft Credit Memoranda are quoted at delivery conditions prevailing in the A320 Family Base Period and will be adjusted in accordance with the Seller Price Revision Formula 2011, as adjusted in accordance with Paragraph 5 of this Letter Agreement. |
4.1.3 | [***] |
4.1.4 | [***] |
4.1.5 | [***] |
5 | ESCALATION PROTECTION |
6 | SAVE CREDIT |
1.2 | Save Credit |
1.2.1 | [***] |
1.2.2 | [***] |
7 | ASSIGNMENT |
8 | CONFIDENTIALITY |
9 | GOVERNING LAW |
10 | COUNTERPARTS |
Very truly yours, | ||||||||
AIRBUS S.A.S. | ||||||||
By: | /s/ Christophe Mourey | |||||||
Its: | Senior Vice President Contracts |
Accepted and Agreed, | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ David Lancelot | |||||||
Its: | Senior VP and Chief Financial Officer |
1 | PAYMENT TERMS |
1.1 | A new Clause 5.2.2.3 is added to the Agreement as set forth in the quoted text below: |
5.2.2.3 | The Predelivery Payment Reference Price for the A320 Group 3 Aircraft and the A320 NEO Aircraft is defined as: |
1.2 | New Clauses 5.2.3 C and 5.2.3 D are added to the Agreement as set forth in the quoted text below: |
C. | Predelivery Payments for each A320 Group 3 Aircraft will be paid to the Seller according to the following schedule: |
Payment Date | Percentage of Predelivery Payment Reference Price | |||||||||||||
[***] | [***] | [***] | ||||||||||||
[***] | ||||||||||||||
[***] | [***] | [***] | ||||||||||||
[***] | [***] | [***] | ||||||||||||
[***] | [***] | [***] | ||||||||||||
[***] | [***] | [***] | ||||||||||||
[***] | [***] | [***] | ||||||||||||
[***] | [***] |
D. | Predelivery Payments for each A320 NEO Aircraft will be paid to the Seller according to the following schedule: |
Payment Date | Percentage of Predelivery Payment Reference Price | |||||||||||||
[***] | [***] | [***] | ||||||||||||
[***] | [***] | [***] | ||||||||||||
[***] | [***] | [***] | ||||||||||||
[***] | [***] | [***] | ||||||||||||
[***] | ||||||||||||||
[***] | [***] | [***] | ||||||||||||
[***] | [***] | [***] | ||||||||||||
[***] | [***] | [***] | ||||||||||||
[***] | [***] | [***] | ||||||||||||
[***] | [***] |
1.3 | The first Paragraph in Clause 5.3 of the Agreement is renumbered to Clause 5.3.1 and revised to read as follows: |
5.3.1 | Initial Payment |
1.4 | A new Clause 5.3.2 is added to the Agreement as set forth in the quoted text below: |
5.3.2 | Initial Payment for A320 Group 3 Aircraft and A320 NEO Aircraft |
2 | ASSIGNMENT |
3 | CONFIDENTIALITY |
4 | GOVERNING LAW |
5 | COUNTERPARTS |
Very truly yours, | ||||||||
AIRBUS S.A.S. | ||||||||
By: | /s/ Christophe Mourey | |||||||
Its: | Senior Vice President Contracts |
Accepted and Agreed, | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ David Lancelot | |||||||
Its: | Senior VP and Chief Financial Officer |
1 | DEFINITIONS |
1.1 | Clause 0 of the Agreement is amended to add the terms and corresponding definitions set forth in the following quoted text: |
1.2 | For all purposes of this Letter Agreement and the Agreement, except as otherwise expressly provided or unless the context otherwise requires, the following terms will have the following meanings: |
2 | FLEXIBILITY |
2.1 | Conversion Right on A320 NEO Aircraft |
2.1.1 | [***] |
2.1.2 | NEO Conversion Right Exercise |
2.2 | Specification Matters Related to Converted A320 NEO Aircraft |
2.2.1 | Clause 2.1.1 of the Agreement is deleted in its entirety and replaced with the following quoted text: |
2.1.1 | The Aircraft will be manufactured in accordance with the following Specifications: |
Aircraft | Specification | |||||||
A319 Aircraft | A319 Specification | |||||||
A319 NEO Aircraft | A319 Aircraft Iss. 7 Specification | |||||||
A320 Aircraft | A320 Specification | |||||||
A320 Group 1 Aircraft | A320 Aircraft Iss. 7 Specification | |||||||
A320 Group 2 Aircraft, A320 Group 3 Aircraft, and A320 NEO Aircraft | A320 Aircraft Iss. 8 Specification | |||||||
A321 Aircraft | A321 Aircraft | |||||||
A321 NEO Aircraft | A321 Aircraft Iss. 5 Specification |
2.2.2 | Clause 2.1.2 of the Agreement is deleted in its entirety and replaced by the quoted text below: |
2.1.2 | New Engine Option |
2.1.2.1 | The Seller is currently developing a new engine option (the "New Engine Option" or "NEO"), applicable to the A319/A320/A321 aircraft. The specification of the: |
(i) | A319 NEO Aircraft shall be derived from the A319 Aircraft Iss. 7 Standard Specification and based on the A319 NEO Propulsion Systems, |
(ii) | A320 NEO Aircraft shall be derived from the A320 Aircraft Iss. 8 Standard Specification and based on the A320 NEO Propulsion Systems, and |
(iii) | A321 NEO Aircraft shall be derived from the A321 Aircraft Iss. 5 Standard Specification and based on the A321 NEO Propulsion Systems. |
2.1.2.2 | The New Engine Option shall modify the design weights of the NEO aircraft as follows: |
Aircraft | [***] | [***] | [***] | |||||||||||||||||
A319 NEO Aircraft | [***] | [***] | [***] | |||||||||||||||||
A320 NEO Aircraft | [***] | [***] | [***] | |||||||||||||||||
A321 NEO Aircraft | [***] | [***] | [***] |
2.2.3 | Clause 2.3.2 of the Agreement is deleted in its entirety and replaced by the quoted the below: |
2.3.2 | NEO Propulsion Systems |
(i) | Each A319 NEO Airframe will be equipped with a set of two CFM International LEAP-X1A24 engines, [***] or Pratt & Whitney PW1124G engines [***] (such set, upon selection, an "A319 NEO Propulsion System"). |
(ii) | Each A320 NEO Airframe will be equipped with a set of two CFM International LEAP-X1A26 engines, [***] or Pratt & Whitney PW1127G engines [***] (such set, upon selection, an "A320 NEO Propulsion System"). |
(iii) | Each A321 NEO Airframe will be equipped with a set of two CFM International LEAP-X1A32 engines, [***] or Pratt & Whitney PW1133G engines, [***] (such set, upon selection, an "A321 NEO Propulsion System"). |
2.2.4 | The following exhibits, set forth in Appendix 1 hereto, are added to the Agreement: |
(i) | Exhibit A-1A, A319 Aircraft Iss. 7 Standard Specification, |
(ii) | Exhibit A-3A, A321 Aircraft Iss. 5 Standard Specification, |
(iii) | Exhibit A-4D, SCNs for A319 NEO Aircraft, and |
(iv) | Exhibit A-4E, SCNs for A321 NEO Aircraft. |
2.3 | A319 NEO Aircraft Matters |
2.3.1 | Base Price of the A319 NEO Airframe |
3.1.1.2.6 | The "Base Price of the A319 NEO Airframe" is the sum of the following base prices: |
(i) | the base price of the A319 NEO Airframe as defined in the A319 Aircraft Iss. 7 Standard Specification (excluding Buyer Furnished Equipment), including nacelles and thrust reversers, is: |
(ii) | the sum of the base prices of any and all SCNs (other than Irrevocable SCNs to the extent included in clause (iii) below) set forth in Exhibit A-4D is: |
(iii) | the sum of the base prices of the Irrevocable SCNs set forth in Exhibit A-4D is the sum of: |
(a) | the base price of the New Engine Option is: |
(b) | the base price of the Sharklets is: |
(iv) | the base price of the Master Charge Engine, which is only chargeable in the case of A319 NEO Aircraft equipped with the CFMI LEAP-X1A24 Propulsion System, is: |
2.3.2 | New Clauses 3.1.1.3.7, 3.1.1.3.8 and 3.1.1.3.9 are added to the Agreement as set forth in the quoted text below: |
3.1.1.3.7 | The base price (the "CFMI LEAP-X1A24 Base Price") of a set of two (2) CFM International LEAP-X1A24 engines is: |
3.1.1.3.8 | The base price (the "PW1124G Base Price") of a set of two (2) Pratt & Whitney PW1124G engines is: |
3.1.1.3.9 | Notwithstanding the foregoing, the Propulsion Systems Reference Prices correspond to the thrust ratings defined for the respective Propulsion Systems in Clause 2.3.2 and may be revised to reflect thrust rating adjustments upon final NEO specification freeze. |
2.3.3 | A new Clause 3.5.5 is added to the Agreement as set forth in the quoted text below: |
3.5.5 | A319 NEO Aircraft Final Contract Price |
(i) | the Base Price of the A319 NEO Airframe, as adjusted to the Delivery Date of such A319 NEO Aircraft in accordance with the Seller Price Revision Formula 2011; |
(ii) | the price of any SCNs for the A319 NEO Aircraft entered into after the date of signature of this Amendment, as adjusted to the Delivery Date of such A319 NEO Aircraft in accordance with the Seller Price Revision Formula 2011; |
(iii) | the Propulsion Systems Reference Price, as adjusted to the Delivery Date of such A319 NEO Aircraft in accordance with the relevant Propulsion Systems Price Revision Formula; |
(iv) | the aggregate of all increases or decreases to the Propulsion Systems Reference Price as agreed in any Specification Change Notice or part thereof applicable to the A319 NEO Propulsion Systems subsequent to the date of this Agreement as revised as of the Delivery Date in accordance with Clause 4.2; and |
(v) | any other amount resulting from any other provisions of this Agreement and/or any other written agreement between the Buyer and the Seller relating to the A319 NEO Aircraft. |
2.3.4 | A319 NEO Aircraft Credit Memoranda |
2.3.4.1 | In respect of each A319 NEO Aircraft, the Seller will provide to the Buyer the following credits (collectively, the "A319 NEO Aircraft Credit Memoranda"): |
2.3.4.2 | The A319 NEO Aircraft Credit Memoranda are quoted at delivery conditions prevailing in the A320 Family Base Period and will be adjusted in accordance with the Seller Price Revision Formula 2011, as adjusted in accordance with Paragraph 5 of Letter Agreement No. 1 to the Amendment. |
2.3.4.3 | [***] |
2.3.5 | Additional A319 NEO Aircraft Credits |
2.3.6 | A319 NEO Aircraft Seller Price Revision Formula |
2.3.7 | A319 NEO Aircraft Predelivery Payments |
2.4 | Matters Related to A321 NEO Aircraft |
2.4.1 | A new Clause 3.1.1.2.7 is added to the Agreement as set forth in the quoted text below: |
3.1.1.2.7 | Base Price of the A321 NEO Airframe |
(i) | the base price of the A321 NEO Airframe as defined in the A321 Aircraft Iss. 5 Standard Specification (excluding Buyer Furnished Equipment), including nacelles and thrust reversers, is: |
(ii) | the sum of the base prices of any and all SCNs (other than Irrevocable SCNs to the extent included in clause (iii) below) set forth in Exhibit A-4E is: |
(iii) | the sum of the base prices of the Irrevocable SCNs set forth in Exhibit A-4E is the sum of: |
(a) | the base price of the New Engine Option is: |
(b) | the base price of the Sharklets is: |
(iv) | the base price of the Master Charge Engine, which is only chargeable in the case of A321 NEO Aircraft equipped with the CFMI LEAP-X1A32 Propulsion System, is: |
2.4.2 | New Clauses 3.1.1.3.10, 3.1.1.3.11 and 3.1.1.3.12 are added to the Agreement as set forth in the quoted text below: |
3.1.1.3.10 | The base price (the "CFMI LEAP-X1A32 Base Price") of a set of two (2) CFM International LEAP-X1A32 engines: |
3.1.1.3.11 | The base price (the "PW1133G Base Price") of a set of two (2) Pratt & Whitney PW1133G engines is: |
3.1.1.3.12 | Notwithstanding the foregoing, the Propulsion Systems Reference Prices correspond to the thrust ratings defined for the respective Propulsion Systems in Clause 2.3.2 and may be revised to reflect thrust rating adjustments upon final NEO specification freeze. |
2.4.3 | A new Clause 3.5.6 is added to the Agreement as set forth in the quoted text below: |
3.5.6 | A321 NEO Aircraft Final Contract Price |
(i) | the Base Price of the A321 NEO Airframe, as adjusted to the Delivery Date of such A321 NEO Aircraft in accordance with the Seller Price Revision Formula 2011; |
(ii) | the price of any SCNs for the A321 NEO Aircraft entered into after the date of signature of this Amendment, as adjusted to the Delivery Date of such A321 NEO Aircraft in accordance with the Seller Price Revision Formula 2011; |
(iii) | the Propulsion Systems Reference Price, as adjusted to the Delivery Date of such A321 NEO Aircraft in accordance with the relevant Propulsion Systems Price Revision Formula; |
(iv) | the aggregate of all increases or decreases to the Propulsion Systems Reference Price as agreed in any Specification Change Notice or part thereof applicable to the A321 NEO Propulsion Systems subsequent to the date of this Agreement as revised as of the Delivery Date in accordance with Clause 4.2; and |
(v) | any other amount resulting from any other provisions of this Agreement and/or any other written agreement between the Buyer and the Seller relating to the A321 NEO Aircraft. |
2.4.4 | A321 NEO Aircraft Credit Memoranda |
2.4.4.1 | In respect of each A321 NEO Aircraft, the Seller will provide to the Buyer the following credits (collectively, the "A321 NEO Aircraft Credit Memoranda"): |
2.4.4.2 | The A321 NEO Aircraft Credit Memoranda are quoted at delivery conditions prevailing in the A320 Family Base Period and will be adjusted in accordance with the Seller Price Revision Formula 2011, as adjusted in accordance with Paragraph 5 of Letter Agreement No. 1 to the Amendment. |
2.4.4.3 | [***] |
2.4.5 | Additional A321 NEO Credit Memoranda |
2.4.6 | A321 NEO Aircraft Seller Price Revision Formula |
2.4.7 | A321 NEO Aircraft Predelivery Payments |
3 | [***] RIGHTS |
3.1 | Buyer's [***] Right |
3.2 | Seller's NEO Aircraft [***] Rights |
4 | SCHEDULED DELIVERY MONTH |
5 | ASSIGNMENT |
6 | CONFIDENTIALITY |
7 | GOVERNING LAW |
8 | COUNTERPARTS |
Very truly yours, | ||||||||
AIRBUS S.A.S. | ||||||||
By: | /s/ Christophe Mourey | |||||||
Its: | Senior Vice President Contracts |
Accepted and Agreed, | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ David Lancelot | |||||||
Its: | Senior VP and Chief Financial Officer |
RE: | SPECIAL MATTERS |
1 | AIRCRAFT NON-DELIVERY |
2 | BACKLOG AIRCRAFT |
3 | ASSIGNMENT |
4 | CONFIDENTIALITY |
5 | GOVERNING LAW |
6 | COUNTERPARTS |
Very truly yours, | ||||||||
AIRBUS S.A.S. | ||||||||
By: | /s/ Christophe Mourey | |||||||
Its: | Senior Vice President Contracts |
Accepted and Agreed, | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ David Lancelot | |||||||
Its: | Senior VP and Chief Financial Officer |
RE: | SUPPORT MATTERS |
1 | SCOPE |
2 | CLAUSE 12 - WARRANTY |
12.1.3 | Warranty Periods |
(i) | With respect to the A319 Aircraft, A320 Aircraft, A320 Group 1 Aircraft, A320 Group 2 Aircraft and A321 Aircraft, the warranties described in Clauses 12.1.1 and 12.1.2 hereinabove will be limited to those defects that become apparent within [***] after Delivery of such affected A319 Aircraft, A320 Aircraft, A320 Group 1 Aircraft, A320 Group 2 Aircraft or A321 Aircraft (the "Standard Warranty Period"). |
(ii) | With respect to the A320 Group 3 Aircraft and NEO Aircraft, the warranties described in Clauses 12.1.1 and 12.1.2 hereinabove will be limited to those defects that become apparent within [***] after Delivery of such affected A320 Group 3 Aircraft or NEO Aircraft (the "[***] Warranty Period"). |
3 | CLAUSE 14 - TECHNICAL DATA |
3.1 | Clause 14.4 of the Agreement is deleted in its entirety and replaced with the following quoted text: |
14.4 | Delivery |
14.4.1 | For Technical Data provided off-line, such Technical Data and corresponding revisions will be sent to up to two (2) addresses as indicated by the Buyer. |
14.4.2 | Technical Data provided off-line will be delivered by the Seller at the Buyer's named place of destination under DDU conditions. For purposes of this Agreement, "DDU" and "Delivery Duty Unpaid" have the meaning ascribed thereto in Publication n° 560 of the International Chamber of Commerce, published in January 2000. |
14.4.4 | It will be the responsibility of the Buyer to coordinate and satisfy Aviation Authorities' requirements with respect to Technical Data. Notwithstanding the foregoing, and in agreement with the relevant Aviation Authorities, preference will be given to the on-line access to such Buyer's Technical Data through the Airbus customer portal "AirbusWorld". |
3.2 | Clause 14.5 of the Agreement is deleted in its entirety and replaced with the following quoted text: |
3.3 | Clause 14.8 of the Agreement is amended to (i) number the first paragraph as 14.8.1 and (b) add a new Clause 14.8.2 as set forth in the quoted text below: |
14.8.2 | [***] |
3.4 | Paragraph 13 of Letter Agreement No. 5 to the Agreement, which was added to the Agreement pursuant to Paragraph 3 of Letter Agreement No. 1 to Amendment No. 4 to the Agreement, is deleted in its entirety and replaced with the following quoted text: |
13. | The Software License for use of the ADOC engineering job card production package, content and revision management package and consultation package will be granted [***] to the Buyer for the A319 Aircraft, A320 Aircraft, A320 Group 1 Aircraft and A320 Group 2 Aircraft [***]. |
4 | CLAUSE 15 - SELLER REPRESENTATIVES |
5 | CLAUSE 16 - TRAINING AND TRAINING AIDS |
5.1 | Clause 16.4.3 of the Agreement is deleted in its entirety and replaced by the following quoted text: |
16.4.3 | Should the Buyer decide to cancel or reschedule a training course, fully or partially, and irrespective of the location of the training, a minimum advance notification of at least [***] prior to the relevant training course start date is required. |
5.2 | Clause 16.4 of the Agreement is amended by inserting the following quoted text immediately after the period at the end thereof: |
16.4.5 | Should the Buyer wish to exchange any of the training courses provided under Appendix A or Appendix A-1 to this Clause 16, the Buyer will place a request for exchange to this effect with the Seller. The Buyer may exchange, subject to the Seller's confirmation, such training allowances as follows: |
(i) | flight operations training courses listed under Paragraph 1 of Appendix A and Appendix A-1 to this Clause 16 may be exchanged for any flight operations training courses described in the Seller's Customer Services Catalog current at the time of the Buyer's request, |
(ii) | maintenance training courses listed under Paragraph 3 of Appendix A and Appendix A-1 to this Clause 16 may be exchanged for any maintenance training courses described in the Seller's Customer Services Catalog current at the time of the Buyer's request, and |
(iii) | should any one of the allowances granted thereunder (flight operations or maintenance) have been fully drawn upon, the Buyer will be entitled to exchange flight operations or maintenance training courses as needed against the remaining allowances. |
16.4.6 | Should the Buyer use none or only part of the training to be provided pursuant to this Clause 16, no compensation or credit of any nature will be provided. |
5.3 | Clause 16.10.1 of the Agreement is deleted in its entirety and replaced by the following quoted text: |
16.10.1 | The Seller will provide to the Buyer the Airbus Computer Based Training and training aids, similar to those used in the Seller's Training Centers, at no additional cost to the Buyer as defined in Appendix A to this Clause 16. |
5.4 | Paragraph 4 of Appendix A to Clause 16 to the Agreement is deleted in its entirety and replaced by the following quoted text: |
4 | The Seller will provide to the Buyer [***] "Airbus CBT Systems," defined in Clause 2.1.3 of Appendix C to Clause 16, related to the Aircraft. The Seller will, through December 31, 2018, provide at no additional cost to the Buyer revision service, which includes updates and software evolutions to the courseware in Clause 4.1 below when developed by the Manufacturer. |
5.5 | A new Appendix A-1 to Clause 16 is added to the Agreement as set forth in Exhibit 1 hereto. |
6 | SPARE PARTS PROCUREMENT |
6.1 | Paragraph 2.3 of Letter Agreement No. 1 to the Agreement is deleted in its entirety and replaced with the following quoted text: |
2.3 | Pre-Provisioning Meeting |
2.3.1 | The Seller shall organize a pre-provisioning meeting at AACS Spares Center or at the Airbus Material Center in Hamburg, Germany, or any other location as may be mutually agreed upon, for the purpose of defining an acceptable schedule and working procedure for the preparation of the initial issue of the Provisioning Data and the Initial Provisioning Conference (the "Pre-Provisioning Meeting"). |
2.3.2 | The Pre-Provisioning Meeting shall take place on an agreed date that is no later than nine (9) months prior to Scheduled Delivery Month of the first A320 Group 3 Aircraft. The date of the meeting shall be mutually agreed upon, allowing a minimum preparation time of eight (8) weeks for the Initial Provisioning Conference. |
6.2 | The Buyer acknowledges and agrees (i) the Seller's obligation to deliver initial provisioning training pursuant to Paragraph 2.4 of Letter Agreement No. 1 to the Agreement has been fulfilled and (ii) initial provisioning training requested by the Buyer after the date of this Letter Agreement will be provided in accordance with the terms and conditions found in the then-current Customer Services Catalog at the time of the Buyer's request. |
6.3 | Paragraph 2.5 of Letter Agreement No. 1 to the Agreement is deleted in its entirety and replaced with the following quoted text: |
2.5 | Initial Provisioning Conference |
6.4 | Paragraphs 12.1, 12.2, 12.3 and 12.4 of Letter Agreement No. 1 to the Agreement are deleted in their entirety and replaced with the following quoted text: |
12.1 | OTHER MATERIAL SUPPORT |
12.2 | INTENTIONALLY LEFT BLANK |
12.3 | INTENTIONALLY LEFT BLANK |
12.4 | INTENTIONALLY LEFT BLANK |
7 | PRODUCT SUPPORT MATTERS |
7.1 | Paragraph 3.2 of Letter Agreement No. 5 to the Agreement is deleted in its entirety and replaced by the following quoted text: |
3.2 | [***] |
7.2 | Service Life Policy Extension |
8. | [***] |
8 | GOODS AND SERVICES CREDIT MEMORANDUM |
8.1 | In respect of each A320 Group 3 Aircraft and NEO Aircraft, the Seller will provide to the Buyer upon Delivery of each such Aircraft the following credit memorandum (the "Goods and Services Credit Memoranda"): |
8.2 | [***] |
9 | ASSIGNMENT |
10 | CONFIDENTIALITY |
11 | GOVERNING LAW |
12 | COUNTERPARTS |
Very truly yours, | ||||||||
AIRBUS S.A.S. | ||||||||
By: | /s/ Christophe Mourey | |||||||
Its: | Senior Vice President Contracts |
Accepted and Agreed, | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ David Lancelot | |||||||
Its: | Senior VP and Chief Financial Officer |
1 | FLIGHT OPERATIONS TRAINING |
1.1 | Flight Crew Training |
1.2 | Low Visibility Operations Training |
1.3 | Flight Crew Line Initial Operating Experience |
1.4 | Type Specific Cabin Crew Training Course |
1.5 | Airbus Pilot Instructor Course (APIC) |
2 | PERFORMANCE / OPERATIONS COURSE(S) |
3 | MAINTENANCE TRAINING |
3.1 | The Seller will provide to the Buyer [***] trainee days of maintenance training [***] for the Buyer's personnel. |
3.2 | The Seller will provide to the Buyer [***] Engine Run-up course. |
4 | TRAINEE DAYS ACCOUNTING |
4.1 | For instruction at the Seller's Training Centers: one (1) day of instruction for one (1) trainee equals one (1) trainee day. The number of trainees [***] will be counted as the number of trainees to have taken the course. |
4.2 | For instruction outside of the Seller's Training Centers: one (1) day of instruction by one (1) Seller Instructor equals the actual number of trainees attending the course or a minimum of [***] trainee days, except for structure maintenance training course(s). |
4.3 | For structure maintenance training courses outside the Seller's Training Center(s), one (1) day of instruction by one (1) Seller Instructor equals the actual number of trainees attending the course or the minimum number of trainees [***]. |
4.4 | For practical training, whether on training devices or on aircraft, one (1) day of instruction by one (1) Seller Instructor equals the actual number of trainees attending the course or a minimum of [***] trainee days. |
1 | PAYMENT TERMS |
1.1 | Clause 5.5 of the Agreement is deleted in its entirety and replaced with the following quoted text: |
5.5 | Application and Setoff of Payments |
5.5.1 | Application of Payments |
5.5.2 | Setoff Payments |
2 | CERTIFICATION |
2.1 | [***] |
2.2 | [***] |
3 | TECHNICAL ACCEPTANCE |
8.2.3 | If the Buyer does not attend (other than as a result of Seller's failure to notify the Buyer as required in Clause 8.1.2(i)) or fails to cooperate in the Technical Acceptance Process, the Seller will be entitled to complete the Technical Acceptance Process in compliance with Clause 8.1.1., without the Buyer's attendance, and the Buyer will be deemed to have accepted that the Technical Acceptance Process has been successfully completed in all respects. |
4 | DELIVERY |
4.1 | Clauses 9.1.2.1 and 9.1.2.2 of the Agreement are deleted in their entirety and replaced by the following quoted text: |
9.1.2.1 | [***] |
9.1.2.2 | [***] |
4.2 | Clause 9.1.3 of the Agreement is deleted in its entirety and replaced by the following quoted text: |
9.1.3 | [***] |
5 | EXCUSABLE DELAY |
5.1 | A new sentence is added to the end of Clause 10.3.2 of the Agreement as set forth in the quoted text below: |
5.2 | Clause 10.5 of the Agreement is deleted in its entirety and replaced with the following quoted text: |
10.5 | Excusable Delay Escalation |
5.3 | A new sentence is added to the end of Clause 10.6 of the Agreement as set forth in the quoted text below: |
6 | INEXCUSABLE DELAY |
6.1 | Clause 11.1.1 of the Agreement is deleted in its entirety and replaced by the following quoted text: |
11.1.1 | Liquidated Damages in the case of an Inexcusable Delay |
11.1.2 | Liquidated Damages with Short Term Notice Inexcusable Delay |
6.2 | New Clauses 11.1.4, 11.1.5 and 11.1.6 are added to the Agreement as set forth in the quoted text below: |
11.1.4 | Liquidated Damages in the Case of a NEO Aircraft Inexcusable Delay |
11.1.5 | NEO Aircraft Liquidated Damages with Medium Term Notice Inexcusable Delay |
11.1.6 | Liquidated Damages with Short Term Notice Inexcusable Delay |
6.3 | Clause 11.5 of the Agreement is amended by (a) numbering the first paragraph thereof 11.5.1 and (b) adding a new Clause 11.5.2 as set forth in the quoted text below: |
11.5.2 | [***] |
7 | ASSIGNMENTS AND TRANSFERS |
20.3.2 | [***] |
20.3.3 | [***] |
8 | ASSIGNMENT |
9 | CONFIDENTIALITY |
10 | GOVERNING LAW |
11 | COUNTERPARTS |
Very truly yours, | ||||||||
AIRBUS S.A.S. | ||||||||
By: | /s/ Christophe Mourey | |||||||
Its: | Senior Vice President Contracts |
Accepted and Agreed, | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ David Lancelot | |||||||
Its: | Senior VP and Chief Financial Officer |
RE: | A320 NEO AIRCRAFT PERFORMANCE GUARANTEE |
1 | AIRCRAFT CONFIGURATION |
1.1 | A320 NEO Aircraft with CFM International CFM LEAP-X1A26 engines |
1.2 | A320 NEO Aircraft with Pratt and Whitney PW 1127G engines |
2 | GUARANTEED PERFORMANCE |
2.1 | [***] |
2.2 | [***] |
2.3 | [***] |
2.4 | [***] |
3 | MANUFACTURER'S WEIGHT EMPTY |
4 | GUARANTEE CONDITIONS |
5 | GUARANTEE COMPLIANCE |
6 | ADJUSTMENT OF GUARANTEES |
7 | EXCLUSIVE GUARANTEES |
8 | UNDERTAKING REMEDIES |
9 | DUPLICATE REMEDIES |
10 | ASSIGNMENT |
11 | CONFIDENTIALITY |
12 | GOVERNING LAW |
13 | COUNTERPARTS |
Very truly yours, | ||||||||
AIRBUS S.A.S. | ||||||||
By: | /s/ Christophe Mourey | |||||||
Its: | Senior Vice President Contracts |
Accepted and Agreed, | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ David Lancelot | |||||||
Its: | Senior VP and Chief Financial Officer |
RE: | SPECIAL EFFECTIVE DATE |
1 | SPECIAL EFFECTIVITY MATTERS |
2 | ASSIGNMENT |
3 | CONFIDENTIALITY |
4 | GOVERNING LAW |
5 | COUNTERPARTS |
Very truly yours, | ||||||||
AIRBUS S.A.S. | ||||||||
By: | /s/ Christophe Mourey | |||||||
Its: | Senior Vice President Contracts |
Accepted and Agreed, | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ David Lancelot | |||||||
Its: | Senior VP and Chief Financial Officer |
1 - | A320 GROUP 3 AIRCRAFT PROPULSION SYSTEMS |
(i) | the Buyer will give written notice to the Seller by no later than [***] of its selection of the CFM International CFM56-5B4/3 powerplant; and |
(ii) | the parties will execute and deliver an amendment to the Agreement by no later than [***] that includes the matters set forth in Appendix 1 hereto. |
2 - | NEO PROPULSION SYSTEMS |
2.3.3 | If the Buyer has not selected the A320 NEO Propulsion Systems as of the date of Amendment No. 11, such choice shall be made no later than [***]. |
3 - | PREDELIVERY PAYMENTS |
4 - | CONDITION PRECEDENT |
5 - | EFFECT OF THE AMENDMENT |
1. | The Agreement as amended by this Amendment contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous understanding, commitments or representations whatsoever, whether oral or written between the Buyer and the Seller. |
2. | The Agreement will be deemed amended to the extent provided in this Amendment and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. Both parties agree that this Amendment will constitute an integral, nonseverable part of the Agreement and be governed by its provisions, except that if the Agreement and this Amendment have specific provisions that are inconsistent, the specific provisions contained in this Amendment will govern. |
6 - | CONFIDENTIALITY |
7 - | GOVERNING LAW |
1. | THIS AMENDMENT AND THE AGREEMENTS CONTEMPLATED HEREIN WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE 22.4 OF THE AGREEMENT. |
2. | IT IS AGREED THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS AMENDMENT. |
8 - | COUNTERPARTS |
SPIRIT AIRLINES, INC. | AIRBUS S.A.S. | |||||||||||||
By: | /s/ Thomas Canfield | By: | /s/ Christopher Mourey | |||||||||||
Its: | SVP & General Counsel | Its: | Senior Vice President - Contracts |
1. | The definition of A320 Propulsion Systems will be deleted in its entirety and replaced with the following quoted text: |
2. | Clause 2.3.1 of the Agreement will be deleted in its entirety and replaced with the following quoted text: |
2.3.1.1 | The Airframe for the A320 Group 1 Aircraft and A320 Group 2 Aircraft will be equipped with a set of two (2) International Aero Engine V2527-A5 Propulsion Systems. |
2.3.1.2 | The Airframe for the A320 Group 3 Aircraft will be equipped with a set of two (2) CFM International CFM56-5B4/3 Propulsion Systems. |
3. | Clause 3.1.1.3.2 of the Agreement will be deleted in its entirety and replaced with the following quoted text: |
3.1.1.3.2.1 | The Base Price of the IAE V2527-A5 Propulsion Systems, at delivery conditions prevailing in January 2011, is: |
3.1.1.3.2.2 | The Base Price of the CFM56-5B4/3 Propulsion Systems, at delivery conditions prevailing in January 2011, is: |
4. | Exhibit H-3 to the Agreement will be deleted in its entirety and replaced with the Exhibit H-3 attached to this Appendix 1. |
1 - | A320 GROUP 3 AIRCRAFT PROPULSION SYSTEMS |
(i) | the Buyer will give written notice to the Seller by no later than [***] of its selection of the CFM International CFM56-5B4/3 powerplant; and |
(ii) | the parties will execute and deliver an amendment to the Agreement by no later than [***] that includes the matters set forth in Appendix 1 hereto. |
2 - | NEO PROPULSION SYSTEMS |
3 - | PREDELIVERY PAYMENTS |
4 - | LETTER AGREEMENT |
5 - | CONDITION PRECEDENT |
6 - | EFFECT OF THE AMENDMENT |
1. | The Agreement as amended by this Amendment contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous understanding, commitments or representations whatsoever, whether oral or written between the Buyer and the Seller. |
2. | The Agreement will be deemed amended to the extent provided in this Amendment and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. Both parties agree that this Amendment will constitute an integral, nonseverable part of the Agreement and be governed by its provisions, except that if the Agreement and this Amendment have specific provisions that are inconsistent, the specific provisions contained in this Amendment will govern. |
7 - | CONFIDENTIALITY |
8 - | GOVERNING LAW |
1. | THIS AMENDMENT AND THE AGREEMENTS CONTEMPLATED HEREIN WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE 22.4 OF THE AGREEMENT. |
2. | IT IS AGREED THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS AMENDMENT. |
9 - | COUNTERPARTS |
SPIRIT AIRLINES, INC. | AIRBUS S.A.S. | |||||||||||||
By: | /s/ Thomas Canfield | By: | /s/ Christopher Mourey | |||||||||||
Its: | SVP & General Counsel | Its: | Senior Vice President - Contracts |
1. | The definition of A320 Propulsion Systems will be deleted in its entirety and replaced with the following quoted text: |
2. | Clause 2.3.1 of the Agreement will be deleted in its entirety and replaced with the following quoted text: |
2.3.1.1 | The Airframe for the A320 Group 1 Aircraft and A320 Group 2 Aircraft will be equipped with a set of two (2) International Aero Engine V2527-A5 Propulsion Systems. |
2.3.1.2 | The Airframe for the A320 Group 3 Aircraft will be equipped with a set of two (2) CFM International CFM56-5B4/3 Propulsion Systems. |
3. | Clause 3.1.1.3.2 of the Agreement will be deleted in its entirety and replaced with the following quoted text: |
3.1.1.3.2.1 | The Base Price of the IAE V2527-A5 Propulsion Systems, at delivery conditions prevailing in January 2011, is: |
3.1.1.3.2.2 | The Base Price of the CFM56-5B4/3 Propulsion Systems, at delivery conditions prevailing in January 2011, is: |
4. | Exhibit H-3 to the Agreement will be deleted in its entirety and replaced with the Exhibit H-3 attached to this Appendix 1. |
1 - | AIRCRAFT CONFIGURATION |
1. | A320 NEO Aircraft with CFM International CFM LEAP-X1A26 engines |
2. | A320 NEO Aircraft with Pratt and Whitney PW 1127G engines |
2 - | GUARANTEED PERFORMANCE |
1. | [***] |
2. | [***] |
3. | [***] |
4. | [***] |
3 - | MANUFACTURER'S WEIGHT EMPTY |
4 - | GUARANTEE CONDITIONS |
5 - | GUARANTEE COMPLIANCE |
6 - | ADJUSTMENT OF GUARANTEES |
7 - | EXCLUSIVE GUARANTEES |
8 - | UNDERTAKING REMEDIES |
9 - | DUPLICATE REMEDIES |
10 - | ASSIGNMENT |
11 - | CONFIDENTIALITY |
12 - | GOVERNING LAW |
13 - | COUNTERPARTS |
1 - | SCOPE |
2 - | AMENDMENTS |
2.2.1 | Clause 2.1.1 of the Agreement is deleted in its entirety and replaced with the following: |
"2.1.1 | The Aircraft will be manufactured in accordance with the following Specifications: |
Aircraft | Specification | ||||
A319 Aircraft | A319 Specification | ||||
A319 NEO Aircraft | A319 Aircraft Iss. 7 Specification | ||||
A320 Aircraft | A320 Specification | ||||
A320 Group 1 Aircraft | A320 Aircraft Iss. 7 Specification | ||||
A320 Group 2 Aircraft, A320 Group 3 Aircraft, and A320 NEO Aircraft | A320 Aircraft Iss. 8 Specification | ||||
A321 Aircraft | A321 Specification | ||||
A321 Amd 14 Aircraft | A321 Aircraft Iss. 5 Specification | ||||
Converted A321 Aircraft | A321 Aircraft Iss. 5 Specification | ||||
A321 NEO Aircraft | A321 Aircraft Iss. 5 Specification" |
2.2.2 | Clause 2.3.1 of the Agreement is renumbered as "2.3.1(i)" and the following is inserted immediately before the period at the end thereof: |
(ii) | Each A321 Amd 14 Airframe and Converted A321 Airframe will be equipped with an A321 Propulsion System." |
2.2.3 | Clause 2.3.2 of the Agreement is deleted in its entirety and replaced with the following: |
"2.3.2 | NEO Propulsion Systems |
(i) | Each A319 NEO Airframe will be equipped with a set of two (2) Pratt & Whitney PW1124G-JM engines, with an AET of 24,500 lbf. (such set, upon selection, an "A319 NEO Propulsion System"). |
(ii) | Each A320 NEO Airframe will be equipped with a set of two (2) Pratt & Whitney PW1127G-JM engines, with an AET of 26,800 lbf. (such set, upon selection, an "A320 NEO Propulsion System"). |
(iii) | Each A321 NEO Airframe will be equipped with a set of two (2) Pratt & Whitney PW1133G-JM engines, with an AET of 32,700 lbf. (such set, upon selection, an "A321 NEO Propulsion System")." |
2.3.1 | Clause 3.1.1.2.6 of the Agreement is renumbered as "3.1.1.2.7". |
2.3.2 | Clause 3.1.1.2.7 of the Agreement is renumbered as "3.1.1.2.8". |
2.3.3 | Clause 3.1.1.2.8(ii) of the Agreement is deleted in its entirety and replaced with the following: |
"(ii) | the sum of the base prices of any and all SCNs (other than Irrevocable SCNs to the extent included in clause (iii) below) set forth in Exhibit A-4E is: |
2.3.4 | The following is inserted immediately after the end of Clause 3.1.1.2.8: |
"3.1.1.2.9 | A321 Amd 14 Airframe and Converted A321 Airframe |
(i) | the Base Price of the A321 Amd 14 Airframe or the Converted A321 Airframe, as applicable, as defined in the A321 Aircraft Iss. 5 Standard Specification (excluding Buyer Furnished Equipment and SCNs), at delivery conditions prevailing in January 2011, is: |
(ii) | the Base Price of anticipated SCNs for the A321 Amd 14 Aircraft and the Converted A321 Aircraft as set forth in Exhibit A-4F, at delivery conditions prevailing in January 2011, is: |
2.3.5 | Clause 3.2.4 of the Agreement is deleted in its entirety and replaced with the following: |
"3.2.4 | The Final Contract Price of an A320 Group 1 Aircraft, A320 Group 2 Aircraft, A320 Group 3 Aircraft, A321 Amd 14 Aircraft or Converted A321 Aircraft will be the sum of: |
(i) | the Base Price of the A320 Group 1 Airframe, A320 Group 2 Airframe, A320 Group 3 Airframe, A321 Amd 14 Airframe or Converted A321 Airframe, as applicable, as adjusted to the Delivery Date of such Aircraft, in accordance with the Seller Price Revision Formula 2011; |
(ii) | the price of any SCNs for the A320 Group 1 Aircraft, A320 Group 2 Aircraft, A320 Group 3 Aircraft, A321 Amd 14 Aircraft or Converted A321 Aircraft, as applicable, entered into after the date of signature of this Agreement, as adjusted to the Delivery Date of such Aircraft, in accordance with the Seller Price Revision Formula 2011; |
(iii) | the Reference Price of the A320 Propulsion Systems constituting a part of such A320 Group 1 Aircraft, A320 Group 2 Aircraft or A320 Group 3 Aircraft, or the A321 Propulsion System constituting a part of such A321 Amd 14 Aircraft or Converted A321 Aircraft, as applicable, and as adjusted to the Delivery Date of such Aircraft, in accordance with the Propulsion Systems Price Revision Formula; |
(iv) | the aggregate of all increases or decreases to the Propulsion Systems Reference Price as agreed in any Specification Change Notice or part thereof applicable to the Propulsion Systems subsequent to the date of this Agreement as revised as of the Delivery Date in accordance with Clause 4.2; and |
(v) | any other amount resulting from any other provisions of this Agreement and/or any other written agreement between the Buyer and the Seller relating to the A320 Group 1 Aircraft, A320 Group 2 Aircraft, A320 Group 3 Aircraft, A321 Amd 14 Aircraft or Converted A321 Aircraft, as applicable." |
"9.1.1.4 | The Scheduled Delivery Quarters for the A320 Group 3 Aircraft, A321 Amd 14 Aircraft and Converted A321 Aircraft are as follows: |
Aircraft Type | Number of Aircraft | Quarter/Year | CAC ID No. | ||||||||
A320 Group 3 Aircraft | 1 | [***] | [***] | ||||||||
A320 Group 3 Aircraft | 1 | [***] | [***] | ||||||||
A320 Group 3 Aircraft | 1 | [***] | [***] | ||||||||
A320 Group 3 Aircraft | 1 | [***] | [***] | ||||||||
A320 Group 3 Aircraft | 1 | [***] | [***] | ||||||||
A321 Amd 14 Aircraft | 1 | [***] | [***] | ||||||||
A321 Amd 14 Aircraft | 1 | [***] | [***] | ||||||||
A320 Group 3 Aircraft | 1 | [***] | [***] | ||||||||
A320 Group 3 Aircraft | 1 | [***] | [***] | ||||||||
A321 Amd 14 Aircraft | 1 | [***] | [***] | ||||||||
A321 Amd 14 Aircraft | 1 | [***] | [***] | ||||||||
A321 Amd 14 Aircraft | 1 | [***] | [***] | ||||||||
A320 Group 3 Aircraft | 1 | [***] | [***] | ||||||||
A321 Amd 14 Aircraft | 1 | [***] | [***] | ||||||||
A321 Amd 14 Aircraft | 1 | [***] | [***] | ||||||||
A321 Amd 14 Aircraft | 1 | [***] | [***] | ||||||||
A320 Group 3 Aircraft | 1 | [***] | [***] | ||||||||
A321 Amd 14 Aircraft | 1 | [***] | [***] | ||||||||
A321 Amd 14 Aircraft | 1 | [***] | [***] | ||||||||
A321 Amd 14 Aircraft | 1 | [***] | [***] | ||||||||
A320 Group 3 Aircraft | 1 | [***] | [***] | ||||||||
A321 Amd 14 Aircraft | 1 | [***] | [***] | ||||||||
A321 Amd 14 Aircraft | 1 | [***] | [***] | ||||||||
A321 Amd 14 Aircraft | 1 | [***] | [***] | ||||||||
A321 Amd 14 Aircraft | 1 | [***] | [***] | ||||||||
A320 Group 3 Aircraft | 1 | [***] | [***] | ||||||||
A320 Group 3 Aircraft | 1 | [***] | [***] | ||||||||
A320 Group 3 Aircraft | 1 | [***] | [***] | ||||||||
A321 Amd 14 Aircraft | 1 | [***] | [***] | ||||||||
A321 Amd 14 Aircraft | 1 | [***] | [***] | ||||||||
Converted A321 Aircraft | 1 | [***] | [***] | ||||||||
A320 Group 3 Aircraft | 1 | [***] | [***] | ||||||||
A320 Group 3 Aircraft | 1 | [***] | [***] | ||||||||
A320 Group 3 Aircraft | 1 | [***] | [***] | ||||||||
A321 Amd 14 Aircraft | 1 | [***] | [***] | ||||||||
Converted A321 Aircraft | 1 | [***] | [***] | ||||||||
A320 Group 3 Aircraft | 1 | [***] | [***] | ||||||||
A320 Group 3 Aircraft | 1 | [***] | [***] | ||||||||
A320 Group 3 Aircraft | 1 | [***] | [***] | ||||||||
A321 Amd 14 Aircraft | 1 | [***] | [***] |
Converted A321 Aircraft | 1 | [***] | [***] | ||||||||
A320 Group 3 Aircraft | 1 | [***] | [***] | ||||||||
A321 Amd 14 Aircraft | 1 | [***] | [***] | ||||||||
Converted A321 Aircraft | 1 | [***] | [***] | ||||||||
Converted A321 Aircraft | 1 | [***] | [***] | ||||||||
Converted A321 Aircraft | 1 | [***] | [***] | ||||||||
Converted A321 Aircraft | 1 | [***] | [***] | ||||||||
Converted A321 Aircraft | 1 | [***] | [***] | ||||||||
Converted A321 Aircraft | 1 | [***] | [***] | ||||||||
Converted A321 Aircraft | 1 | [***] | [***] |
2.5.1 | Exhibit A-4E to the Agreement is deleted in its entirety and replaced with the Exhibit A-4E set forth in Appendix 1. |
2.5.2 | Exhibit A-4F, set forth in Appendix 1, is added to the Agreement immediately following the end of Exhibit A-4E. |
3 - | CONDITION PRECEDENT |
4 - | EEFFECT OF THE AMENDMENT |
1. | The Agreement as amended by this Amendment contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous understanding, commitments or representations whatsoever, whether oral or written between the Buyer and the Seller. |
2. | The Agreement will be deemed amended to the extent provided in this Amendment and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. |
5 - | CONFIDENTIALITY |
6 - | GOVERNING LAW |
1. | THIS AMENDMENT AND THE AGREEMENTS CONTEMPLATED HEREIN WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE 22.4 OF THE AGREEMENT. |
2. | IT IS AGREED THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS AMENDMENT. |
7 - | COUNTERPARTS |
SPIRIT AIRLINES, INC. | AIRBUS S.A.S. | |||||||||||||
By: | /s/ Thomas Canfield | By: | /s/ John J. Leahy | |||||||||||
Its: | SVP & General Counsel | Its: | Chief Operating Officer - Customers |
1 | CREDIT MEMORANDUMS |
1.1.1 | In consideration of the Buyer's order for twenty (20) A321 Amd 14 Aircraft, [***] of each A320 Group 3 Aircraft, the Seller will provide the Buyer with a credit in the amount of [***] (the "[***]"). |
1.1.2 | [***] |
1.1.3 | [***] |
1.2.1 | [***] of each A321 Amd 14 Aircraft, the Seller will provide to the Buyer a credit of [***] (the "[***]"). |
1.2.2 | [***] |
1.2.3 | [***] |
1.3.1 | [***] of each Converted A321 Aircraft, the Seller will provide to the Buyer a credit of [***] (the "[***]"). |
1.3.2 | [***] |
1.3.3 | [***] |
2 | AIRCRAFT NON-DELIVERY |
3 | AMENDMENTS |
6.1 | [***] |
6.2 | [***] |
6.3 | The Save Credit will be deemed an A320 Group 3 Aircraft Credit Memoranda as set forth in Paragraph 2 of this Letter Agreement. |
4 | ASSIGNMENT |
5 | CONFIDENTIALITY |
6 | GOVERNING LAW |
7 | COUNTERPARTS |
1 | PAYMENT TERMS |
1. | Clause 5.2.3C of the Agreement is deleted in its entirety and replaced with the following: |
"C. | Predelivery Payments for each A320 Group 3 Aircraft, A321 Amd 14 Aircraft and Converted A321 Aircraft will be paid to the Seller according to the following schedule: |
Payment Date | Percentage of Predelivery Payment Reference Price | |||||||
[***] | [***] | [***] | ||||||
[***] | ||||||||
[***] | [***] | [***] | ||||||
[***] | [***] | [***] | ||||||
[***] | [***] | [***] | ||||||
[***] | [***] | [***] | ||||||
[***] | [***] | [***] | ||||||
[***] | [***] |
1.2 | All Predelivery Payments that are due prior to signature of the Amendment will be paid at signature of the Amendment. |
2 | ASSIGNMENT |
3 | CONFIDENTIALITY |
4 | GOVERNING LAW |
5 | COUNTERPARTS |
1 | AMENDMENT |
1.3.1 | Clause 11.1.1 of the Agreement is deleted in its entirety and replaced with the following quoted text: |
1.3.2 | Clause 11.1.2 of the Agreement is deleted in its entirety and replaced with the following quoted text: |
2 | PERFORMANCE GUARANTEES |
(i) | A321 Amd 14 Aircraft and Converted A321 Aircraft on substantially similar terms to those set forth in Letter Agreement No. 6 to the Agreement, and |
(ii) | A321 Amd 14 NEO Aircraft on substantially similar terms to those set forth in the Amended and Restated Letter Agreement No. 7 to Amendment No. 11 to the Agreement. |
3 | ASSIGNMENT |
4 | CONFIDENTIALITY |
5 | GOVERNING LAW |
6 | COUNTERPARTS |
1 | SCOPE |
2 | SELLER REPRESENTATIVES |
3 | SERVICE LIFE POLICY |
4 | AMENDMENTS |
"(ii) | With respect to the A320 Group 3 Aircraft, A321 Amd 14 Aircraft, Converted A321 Aircraft and NEO Aircraft, the warranties described in Clauses 12.1.1 and 12.1.2 hereinabove will be limited to those defects that become apparent within [***] after Delivery of such affected A320 Group 3 Aircraft, A321 Amd 14 Aircraft, Converted A321 Aircraft or NEO Aircraft (the "Extended Warranty Period")." |
"8.1 | In respect of each A320 Group 3 Aircraft, A321 Amd 14 Aircraft, Converted A321 Aircraft and NEO Aircraft, the Seller will provide to the Buyer upon Delivery of each such Aircraft the following credit memorandum (the "Goods and Services Credit Memoranda"): |
5 | ASSIGNMENT |
6 | CONFIDENTIALITY |
7 | GOVERNING LAW |
8 | COUNTERPARTS |
1 | FLIGHT OPERATIONS TRAINING |
1.1 | Flight Crew Training |
1.2 | Low Visibility Operations Training |
1.3 | Flight Crew Line Initial Operating Experience |
1.4 | Type Specific Cabin Crew Training Course |
2 | PERFORMANCE / OPERATIONS COURSE(S) |
3 | MAINTENANCE TRAINING |
3.1 | The Seller will provide to the Buyer [***] trainee days of maintenance training [***] for the Buyer's personnel in consideration of the Buyer's order for A320 Group 3 Aircraft, Converted A321 Aircraft and NEO Aircraft. |
3.2 | The Seller will provide to the Buyer [***] Engine Run-up course. |
4 | TRAINEE DAYS ACCOUNTING |
4.1 | For instruction at the Seller's Training Centers: one (1) day of instruction for one (1) trainee equals one (1) trainee day. The number of trainees [***] will be counted as the number of trainees to have taken the course. |
4.2 | For instruction outside of the Seller's Training Centers: one (1) day of instruction by one (1) Seller Instructor equals the actual number of trainees attending the course or a minimum of [***] trainee days, except for structure maintenance training course(s). |
4.3 | For structure maintenance training courses outside the Seller's Training Center(s), one (1) day of instruction by one (1) Seller Instructor equals the actual number of trainees attending the course or the minimum number of trainees [***]. |
4.4 | For practical training, whether on training devices or on aircraft, one (1) day of instruction by one (1) Seller Instructor equals the actual number of trainees attending the course or a minimum of [***] trainee days. |
1 | CONVERSION RIGHT |
1.1 | [***] |
1.3.1 | [***] of each 2013 Converted Aircraft, the Seller will grant to the Buyer, a credit memorandum in the amount of [***] (the "[***]"). |
1.3.2 | [***] |
1.3.3 | [***] |
2 | AMENDMENT |
3 | ASSIGNMENT |
4 | CONFIDENTIALITY |
5 | GOVERNING LAW |
6 | COUNTERPARTS |
1 - | AMENDMENT |
9.1.1.3 | The Scheduled Delivery Months for the A320 Group 1 Aircraft and A320 Group 2 Aircraft are as follows: |
Aircraft | Quantity | Month | Year | CAC ID No. | ||||||||||
A320 Group 1 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 1 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 1 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 1 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 1 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 1 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 1 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] |
2 - | PROPULSION SYSTEMS |
3 - | CONDITION PRECEDENT |
4 - | EEFFECT OF THE AMENDMENT |
4.1 | The Agreement as amended by this Amendment contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous understanding, commitments or representations whatsoever, whether oral or written between the Buyer and the Seller. |
4.2 | The Agreement will be deemed amended to the extent provided in this Amendment and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. |
5 - | CONFIDENTIALITY |
6 - | GOVERNING LAW |
6.1 | THIS AMENDMENT AND THE AGREEMENTS CONTEMPLATED HEREIN WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE 22.4 OF THE AGREEMENT. |
6.2 | IT IS AGREED THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS AMENDMENT. |
7 - | COUNTERPARTS |
SPIRIT AIRLINES, INC. | AIRBUS S.A.S. | |||||||||||||
By: | /s/ Edward M. Christie | By: | /s/ Christophe Mourey | |||||||||||
Its: | SVP and CFO | Its: | SVP Contracts |
CAC ID | Aircraft | Delivery Period | CAC ID | Aircraft | Delivery Period | ||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | Converted A321 Aircraft | [***] | ||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | Converted A321 Aircraft | [***] | ||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | Converted A321 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||||||
[***] | A320 NEO Aircraft | [***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||||||
[***] | Converted A321 Aircraft | [***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||||||
[***] | Converted A321 Aircraft | [***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||||||
[***] | Converted A321 Aircraft | [***] | [***] | Converted A321 Aircraft | [***] | ||||||||||||
[***] | Converted A321 Aircraft | [***] | [***] | Converted A321 Aircraft | [***] |
[***] | Converted A321 Aircraft | [***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||||||
[***] | A320 NEO Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 NEO Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | 2013 Converted Aircraft (A321 NEO) | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 NEO Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 NEO Aircraft | [***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||||||
[***] | A320 NEO Aircraft | [***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||||||
[***] | A320 NEO Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 NEO Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 NEO Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 NEO Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | ||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] |
1 - | AMENDMENTS |
1.1 | Delivery Stream |
9.1.1.3 | The Scheduled Delivery Months for the A320 Group 1 Aircraft and A320 Group 2 Aircraft are as follows: |
Aircraft | Quantity | Month | Year | CAC ID No. | ||||||||||
A320 Group 1 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 1 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 1 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 1 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 1 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 1 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 1 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] | ||||||||||
A320 Group 2 Aircraft | [***] | [***] | [***] | [***] |
1.2 | PRICE |
2 - | CONDITION PRECEDENT |
3 - | EEFFECT OF THE AMENDMENT |
3.1 | The Agreement as amended by this Amendment contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous understanding, commitments or representations whatsoever, whether oral or written between the Buyer and the Seller. |
3.2 | The Agreement will be deemed amended to the extent provided in this Amendment and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. |
4 - | CONFIDENTIALITY |
5 - | GOVERNING LAW |
5.1 | THIS AMENDMENT AND THE AGREEMENTS CONTEMPLATED HEREIN WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE 22.4 OF THE AGREEMENT. |
5.2 | IT IS AGREED THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS AMENDMENT. |
6 - | UCOUNTERPARTS |
SPIRIT AIRLINES, INC. | AIRBUS S.A.S. | |||||||||||||
By: | /s/ Edward M. Christie | By: | /s/ Christophe Mourey | |||||||||||
Its: | SVP and CFO | Its: | SVP Contracts |
Delivery Period | Aircraft | CAC ID | Delivery Period | Aircraft | CAC ID | |||||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | Converted A321 Aircraft | [***] | |||||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A321 Amd 14 Aircraft | [***] | |||||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | Converted A321 Aircraft | [***] | |||||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | Converted A321 Aircraft | [***] | |||||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | Converted A321 Aircraft | [***] | |||||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | Converted A321 Aircraft | [***] | |||||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | Converted A321 Aircraft | [***] | |||||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | |||||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | |||||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | |||||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | |||||||||||||||
[***] | A320 Group 2 Aircraft | [***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | |||||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] |
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | Converted A321 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | Converted A321 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | Converted A321 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A321 Amd 14 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | A320 Group 3 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] | |||||||||||||||
[***] | Converted A321 Aircraft | [***] | [***] | A320 NEO Aircraft | [***] |
1 - | SCOPE |
1.1 | Additional A320 Group 3 Aircraft conversions to Converted A321 Aircraft |
1.2 | A320 NEO Aircraft conversions to A321 NEO Aircraft |
1.3 | A320 Group 2 Aircraft and A320 Group 3 Aircraft Advancements |
1.3.1 | On an exceptional basis and in recognition of the Buyer's desire to accelerate growth of its fleet of A321 aircraft, the A320 Group 3 Aircraft bearing CAC ID No. [***] which is being converted to a Converted A321 Aircraft through the execution of this Amendment No. 17, is hereby advanced from its original Scheduled Delivery Month of [***] to its new Scheduled Delivery Month of [***]. |
1.3.2 | In order to streamline the customization process and reduce the period of time during which A320 Group 2 Aircraft and A320 Group 3 Aircraft are being delivered concurrently, the Seller hereby advances the Scheduled Delivery Month of A320 Group 2 Aircraft bearing CAC ID No. [***], from [***] to [***]. |
1.4 | A320 Group 3 Aircraft Rescheduling |
2 - | AMENDMENTS |
2.1 | Definitions |
2.2 | Specification |
2.2.1 | Clause 2.1 of the Agreement is deleted in its entirety and replaced with the following quoted text: |
2.1.1 | The Aircraft will be manufactured in accordance with the following Specifications: |
Aircraft | Specification | ||||
A319 Aircraft | A319 Specification | ||||
A319 NEO Aircraft | A319 Aircraft Iss. 7 Specification | ||||
A320 Aircraft | A320 Specification | ||||
A320 Group 1 Aircraft | A320 Aircraft Iss. 7 Specification | ||||
A320 Group 2 Aircraft, A320 Group 3 Aircraft | A320 Aircraft Iss. 8 Specification | ||||
A320 NEO Aircraft | A320 NEO Aircraft Specification | ||||
A321 Aircraft | A321 Specification | ||||
A321 Amd 14 Aircraft | A321 Aircraft Iss. 5 Specification | ||||
Converted A321 Aircraft | A321 Aircraft Iss. 5 Specification | ||||
A321 NEO Aircraft | A321 Aircraft Iss. 5 Specification |
A319-100 | A321-200 | |||||||
MTOW | [***] | [***] | ||||||
MLW | [***] | [***] | ||||||
MZFW | [***] | [***] |
Propulsion Systems as per Clause 2.3 | A319-100 | A321-200 | ||||||
PW | [***] | [***] |
2.2.1.1 | EXHIBIT A-4C to the Agreement is deleted in its entirety and is replaced with the Exhibit A-4C set forth hereto. |
2.2.1.2 | EXHIBIT A-4E to the Agreement is deleted in its entirety and is replaced with the Exhibit A-4E set forth hereto. |
2.3 | PRICE |
3 - | PRICE |
3.1 | Base Price of the Aircraft |
3.1.1 | The Base Price of each applicable Aircraft is the sum of: |
3.1.1.2 | Base Price of the Airframe |
3.1.1.2.1 | INTENTIONALLY LEFT BLANK |
3.1.1.2.2 | INTENTIONALLY LEFT BLANK |
3.1.1.2.3 | INTENTIONALLY LEFT BLANK |
3.1.1.2.4 | INTENTIONALLY LEFT BLANK |
3.1.1.2.5 | A320 Group 2 Airframe and A320 Group 3 Airframe |
(i) | The Base Price of the A320 Group 2 Airframe and the Base Price of the A320 Group 3 Airframe, as defined in the A320 Aircraft Iss. 8 Standard Specification (excluding Buyer Furnished Equipment and SCNs) including nacelles and thrust reversers, which is: |
(ii) | the sum of the base prices of any and all SCNs set forth in Exhibit A-4B, which is: |
US$ [***] |
3.1.1.2.6 | Base Price of the A320 NEO Airframe |
(i) | The base price of the A320 NEO Airframe as defined in the A320 NEO Standard Specification (excluding Buyer Furnished Equipment), including nacelles and thrust reversers, which is: |
(ii) | the sum of the base prices of any and all SCNs set forth in Exhibit A-4C, which is: |
3.1.1.2.7 | The "Base Price of the A319 NEO Airframe" is the sum of the following base prices: |
(i) | The base price of the A319 NEO Airframe as defined in the A319 Aircraft Iss. 7 Standard Specification (excluding Buyer Furnished Equipment), including nacelles and thrust reversers, which is: |
(ii) | the sum of the base prices of any and all SCNs (other than Irrevocable SCNs to the extent included in Clause (iii) below) set forth in Exhibit A-4D, which is: |
(iii) | the sum of the base prices of the Irrevocable SCNs set forth in Exhibit A-4D, which is the sum of: |
(a) | The base price of the New Engine Option: |
(b) | The base price of the Sharklets: |
3.1.1.2.8 | Base Price of the A321 NEO Airframe |
(i) | The base price of the A321 NEO Airframe as defined in the A321 Aircraft Iss. 5 Standard Specification (excluding Buyer Furnished Equipment), including nacelles and thrust reversers, which is: |
(ii) | the sum of the base prices of any and all SCNs (other than Irrevocable SCNs to the extent included in Clause (iii) below) set forth in Exhibit A-4E, which is: |
(iii) | the sum of the base prices of the Irrevocable SCNs set forth in Exhibit A-4E, which is the sum of: |
(a) | the base price of the New Engine Option: |
(b) | the base price of the Sharklets: |
3.1.1.2.9 | It is hereby agreed and understood between the parties that, upon issuance of the respective Issue 1.0 of the A319 NEO Standard Specification(s) and the A321 NEO Standard Specification, the Airframe Base Price reflecting the Airframe as defined in each such Standard Specification(s) shall correspond to the sum of (i) and (ii) as set forth in respectively Clauses 3.1.1.2.7 and 3.1.1.2.8 above, as applicable |
3.1.1.2.10 | A321 Amd 14 Airframe and Converted A321 Airframe |
(i) | The Base Price of the A321 Amd 14 Airframe or the Converted A321 Airframe, as applicable, as defined in the A321 Aircraft Iss. 5 Standard Specification (excluding Buyer Furnished Equipment and SCNs), at delivery conditions prevailing in January 2011, which is: |
(ii) | The Base Price of anticipated SCNs for the A321 Amd 14 Aircraft and the Converted A321 Aircraft as set forth in Exhibit A-4F, at delivery conditions prevailing in January 2011, which is: |
3.1.1.3 | Base Price of the Propulsion Systems |
3.1.1.3.1 | INTENTIONALLY LEFT BLANK |
3.1.1.3.2 | A320 Propulsion Systems |
3.1.1.3.3 | A321 Propulsion Systems |
3.1.1.3.4 | INTENTIONALLY LEFT BLANK |
3.1.1.3.5 | The base price (the "PW1127G-JM Base Price") of a set of two (2) Pratt & Whitney PW1127G-JM engines, at delivery conditions prevailing in January 2011 is: |
3.1.1.3.6 | Notwithstanding the foregoing, the Propulsion Systems Reference Prices correspond to the thrust ratings defined for the respective Propulsion Systems in Clause 2.3.2 and may be revised to reflect thrust rating adjustments upon final NEO specification freeze. |
3.1.1.3.7 | INTENTIONALLY LEFT BLANK |
3.1.1.3.8 | The base price (the "PW1124G-JM Base Price") of a set of two (2) Pratt & Whitney PW1124G-JM engines, at delivery conditions prevailing in January 2011 is: |
3.1.1.3.9 | Notwithstanding the foregoing, the Propulsion Systems Reference Prices correspond to the thrust ratings defined for the respective Propulsion Systems in Clause 2.3.2 and may be revised to reflect thrust rating adjustments upon final NEO specification freeze. |
3.1.1.3.10 | INTENTIONALLY LEFT BLANK |
3.1.1.3.11 | The base price (the "PW1133G-JM Base Price") of a set of two (2) Pratt & Whitney PW1133G-JM engines, at delivery conditions prevailing in January 2011 is: |
3.1.1.3.12 | Notwithstanding the foregoing, the Propulsion Systems Reference Prices correspond to the thrust ratings defined for the respective Propulsion Systems in Clause 2.3.2 and may be revised to reflect thrust rating adjustments upon final NEO specification freeze. |
3.2 | Final Contract Price |
3.2.1 | INTENTIONALLY LEFT BLANK |
3.2.2 | INTENTIONALLY LEFT BLANK |
3.2.3 | INTENTIONALLY LEFT BLANK |
3.2.4 | The Final Contract Price of an A320 Group 2 Aircraft, A320 Group 3 Aircraft, A321 Amd 14 Aircraft or Converted A321 Aircraft will be the sum of: |
(i) | The Base Price of the A320 Group 2 Airframe, A320 Group 3 Airframe, A321 Amd 14 Airframe or Converted A321 Airframe, as applicable, as adjusted to the Delivery Date of such Aircraft, in accordance with the Seller Price Revision Formula 2011; |
(ii) | the price of any SCNs for the A320 Group 2 Aircraft, A320 Group 3 Aircraft, A321 Amd 14 Aircraft or Converted A321 Aircraft, as applicable, entered into after the date of signature of this Agreement, as adjusted to the Delivery Date of such Aircraft, in accordance with the Seller Price Revision Formula 2011; |
(iii) | the Reference Price of the A320 Propulsion Systems constituting a part of such A320 Group 2 Aircraft or A320 Group 3 Aircraft, or the A321 Propulsion System constituting a part of such A321 Amd 14 Aircraft or Converted A321 Aircraft, as applicable, and as adjusted to the Delivery Date of such Aircraft, in accordance with the Propulsion Systems Price Revision Formula; |
(iv) | the aggregate of all increases or decreases to the Propulsion Systems Reference Price as agreed in any Specification Change Notice or part thereof applicable to the Propulsion Systems subsequent to the date of this Agreement as revised as of the Delivery Date in accordance with Clause 4.2; and |
(v) | any other amount resulting from any other provisions of this Agreement and/or any other written agreement between the Buyer and the Seller relating to the A320 Group 2 Aircraft, A320 Group 3 Aircraft, A321 Amd 14 Aircraft or Converted A321 Aircraft, as applicable." |
3.2.5 | The Final Contract Price of an A320 NEO Aircraft will be the sum of: |
(i) | The Base Price of the A320 NEO Airframe, as adjusted to the Delivery Date of such A320 NEO Aircraft in accordance with the Seller Price Revision Formula 2011; |
(ii) | the price of any SCNs for the A320 NEO Aircraft entered into after the date of signature of this Amendment, as adjusted to the Delivery Date of such A320 NEO Aircraft in accordance with the Seller Price Revision Formula 2011; |
(iii) | the Propulsion Systems Reference Price, as adjusted to the Delivery Date of such A320 NEO Aircraft in accordance with the relevant Propulsion Systems Price Revision Formula; |
(iv) | the aggregate of all increases or decreases to the Propulsion Systems Reference Price as agreed in any Specification Change Notice or part thereof applicable to the Propulsion Systems subsequent to the date of this Agreement as revised as of the Delivery Date in accordance with Clause 4.2; and |
(v) | any other amount resulting from any other provisions of this Agreement and/or any other written agreement between the Buyer and the Seller relating to the A320 NEO Aircraft. |
3.2.6 | The Final Contract Price of an A319 NEO Aircraft will be the sum of: |
(i) | The Base Price of the A319 NEO Airframe, as adjusted to the Delivery Date of such A319 NEO Aircraft in accordance with the Seller Price Revision Formula 2011; |
(ii) | the price of any SCNs for the A319 NEO Aircraft entered into after the date of signature of this Amendment, as adjusted to the Delivery Date of such A319 NEO Aircraft in accordance with the Seller Price Revision Formula 2011; |
(iii) | the Propulsion Systems Reference Price, as adjusted to the Delivery Date of such A319 NEO Aircraft in accordance with the relevant Propulsion Systems Price Revision Formula; |
(iv) | the aggregate of all increases or decreases to the Propulsion Systems Reference Price as agreed in any Specification Change Notice or part thereof applicable to the A319 NEO Propulsion Systems subsequent to the date of this Agreement as revised as of the Delivery Date in accordance with Clause 4.2; and |
(v) | any other amount resulting from any other provisions of this Agreement and/or any other written agreement between the Buyer and the Seller relating to the A319 NEO Aircraft. |
3.2.7 | The Final Contract Price of an A321 NEO Aircraft will be the sum of: |
(i) | The Base Price of the A321 NEO Airframe, as adjusted to the Delivery Date of such A321 NEO Aircraft in accordance with the Seller Price Revision Formula 2011; |
(ii) | the price of any SCNs for the A321 NEO Aircraft entered into after the date of signature of this Amendment, as adjusted to the Delivery Date of such A321 NEO Aircraft in accordance with the Seller Price Revision Formula 2011; |
(iii) | the Propulsion Systems Reference Price, as adjusted to the Delivery Date of such A321 NEO Aircraft in accordance with the relevant Propulsion Systems Price Revision Formula; |
(iv) | the aggregate of all increases or decreases to the Propulsion Systems Reference Price as agreed in any Specification Change Notice or part thereof applicable to the A321 NEO Propulsion Systems subsequent to the date of this Agreement as revised as of the Delivery Date in accordance with Clause 4.2; and |
(v) | any other amount resulting from any other provisions of this Agreement and/or any other written agreement between the Buyer and the Seller relating to the A321 NEO Aircraft. |
2.4 | Payment terms |
2.4.1 | Clause 5.2.2 of the Agreement is deleted in its entirety and is replaced with the following: |
2.4.2 | Predelivery Payments |
2.4.2.1 | Prior to signature of this Amendment No. 17 to the Agreement, the Buyer has paid and the Seller has received Predelivery Payments amounting to US$ [***] (US dollars [***]) in respect of the Amendment 17 Aircraft. |
2.4.2.2 | Upon signature of this Amendment No. 17 to the Agreement, the Predelivery Payments due in respect of the Amendment No. 17 Aircraft are detailed under the "Due Predelivery Payments" column in table 1. |
Aircraft | CAC ID | Converted/Advanced/Rescheduled | Due Predelivery Payments | ||||||||
A320 | [***] | [***] | [***] | ||||||||
A320 | [***] | [***] | [***] | ||||||||
A320 | [***] | [***] | [***] | ||||||||
A320 | [***] | [***] | [***] | ||||||||
A320 | [***] | [***] | [***] | ||||||||
A320 | [***] | [***] | [***] | ||||||||
A320 | [***] | [***] | [***] | ||||||||
A320 | [***] | [***] | [***] | ||||||||
A320 | [***] | [***] | [***] | ||||||||
A320 | [***] | [***] | [***] | ||||||||
A320 | [***] | [***] | [***] | ||||||||
A320 | [***] | [***] | [***] | ||||||||
A320 | [***] | [***] | [***] | ||||||||
Total | [***] |
2.5.1 | Clauses 9.1.1.3, 9.1.1.4 and 9.1.1.5 of the Agreement are deleted in their entirety and are replaced with the following quoted text: |
Year | Delivery Period | Aircraft | CAC ID | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] |
Year | Delivery Period | Aircraft | CAC ID | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] |
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] |
Year | Delivery Period | Aircraft | CAC ID | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] |
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] |
2.5.2 | For ease of reference, Clause 9.1.1.7 in the quoted text below is hereby added to the Agreement. |
Year | Delivery Period | Aircraft | CAC ID | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] |
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] |
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] |
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] |
3 - | PROPULSION SYSTEMS COMMERCIAL TERMS |
4 - | CONDITION PRECEDENT |
5 - | EFFECT OF THE AMENDMENT |
5.1 | The Agreement as amended by this Amendment contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous understanding, commitments or representations whatsoever, whether oral or written between the Buyer and the Seller. |
5.2 | The Agreement will be deemed amended to the extent provided in this Amendment and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. |
6 - | CONFIDENTIALITY |
7 - | GOVERNING LAW |
7.1 | THIS AMENDMENT AND THE AGREEMENTS CONTEMPLATED HEREIN WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE 22.4 OF THE AGREEMENT. |
7.2 | IT IS AGREED THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS AMENDMENT. |
8 - | COUNTERPARTS |
SPIRIT AIRLINES A320NEO CUSTOMIZATION BUDGET PROPOSAL | ||||||||||||||
Based on A320-200N Standard Spec Issue 1.0 | ||||||||||||||
New Engine Option (NEO) A320-200 | ||||||||||||||
LIST OF ADDITIONAL SCNS | ||||||||||||||
NB: Certain options from the currently available Airbus catalogues may not be applicable and/or certified for Aircraft equipped with New Engine Option in 2016 and 2017. | A320-200N | |||||||||||||
ATA | TITLE | SCN Budget $US DC01/11 per aircraft | Estimated BFE Budget $US DC01/11 per aircraft | |||||||||||
[***] | [***] | [***] | [***] | |||||||||||
[***] | [***] | [***] | [***] | |||||||||||
[***] | [***] | [***] | [***] | |||||||||||
TOTAL OF ADDITIONAL SCNS AND ESTIMATED BFE BUDGET - $US DC01/2011 PER AIRCRAFT | [***] | [***] | ||||||||||||
(**) : The indicated thrust is the Airbus Equivalent Thrust at Mach number 0.25 / ISA +15C / sea level thrust divided by 0.8 (representative of sea level aircraft performance). | ||||||||||||||
It may differ from the nominal thrust that will be eventually indicated by the engine manufacturer. |
SPIRIT AIRLINES - Customization budget proposal | |||||||||||
A321-200 NEO | |||||||||||
Based on A321-200 Standard Specification issue 5.0 dated June 2011 | |||||||||||
LIST OF IRREVOCABLE SCNS ASSOCIATED WITH THE NEO OPTIONS | |||||||||||
NB: These options shall be irrevocably part of the A321 NEO specification | A321-200 NEO with CFM LEAP-1A | A321-200 NEO with PW1100G-JM | |||||||||
ATA | TITLE | SCN Budget $US DC01/11 per aircraft | SCN Budget $US DC01/11 per aircraft | ||||||||
[***] | [***] | [***] | [***] | ||||||||
[***] | [***] | [***] | [***] | ||||||||
[***] | [***] | [***] | [***] | ||||||||
TOTAL OF IRREVOCABLE SCNS - $US DC01/2011 PER AIRCRAFT | [***] | [***] | |||||||||
LIST OF ADDITIONAL SCNS | |||||||||||
NB: Certain options from this list and currently available Airbus catalogues may not be applicable and/or certified for Aircraft equipped with New Engine Option in 2016 and 2017. | A321-200 NEO | ||||||||||
ATA | TITLE | A321-200 NEO SCNs $US DC01/11 per aircraft | Estimated BFE Budget $US DC01/11 per aircraft | ||||||||
[***] | [***] | [***] | [***] | ||||||||
[***] | [***] | [***] | [***] | ||||||||
[***] | [***] | [***] | [***] | ||||||||
TOTAL OF SCNS AND ESTIMATED BFE BUDGET - $US DC01/2011 PER AIRCRAFT | [***] | [***] | |||||||||
GRAND TOTAL SCN FOR A321-200 EQUIPPED WITH NEO PER A/C (DC / 2011) | [***] | [***] | |||||||||
(*) : MLW and MZFW are indicative design weights representative of the A321-200 with NEO option. NEO design weights shall be updated with the final specification | |||||||||||
(**) : The indicated thrust is the Airbus Equivalent Thrust at Mach number 0.25 / ISA +15C / sea level thrust divided by 0.8 (representative of sea level aircraft performance). | |||||||||||
It may differ from the nominal thrust that will be eventually indicated by the engine manufacturer. |
1 | AMENDMENTS |
1.1 | CREDIT MEMORANDUMS |
1.2 | SAVE CREDIT |
6.1 | [***]. |
6.2 | [***]. |
6.3 | The Save Credit will be deemed an A320 Group 3 Aircraft and Converted A321 Aircraft Credit Memoranda as set forth in Paragraph 2 of this Letter Agreement. |
2 | ASSIGNMENT |
3 | CONFIDENTIALITY |
4 | GOVERNING LAW |
5 | COUNTERPARTS |
1 | AMENDMENTS |
Payment Date | Percentage of Predelivery Payment Reference Price | |||||||
1st Payment | Upon Signature of Amendment No. 4 to the Agreement, in respect of each A320 Group 2 Aircraft | [***] | ||||||
No later than the [***] Working Day of the following months: | ||||||||
2nd Payment | The [***] month before the Scheduled Delivery Month of each A320 Group 2 Aircraft as set forth in this Agreement. | [***] | ||||||
3rd Payment | The [***] month before the Scheduled Delivery Month of each A320 Group 2 Aircraft as set forth in this Agreement. | [***] | ||||||
4th Payment | The [***] month before the Scheduled Delivery Month of each A320 Group 2 Aircraft as set forth in this Agreement. | [***] | ||||||
5th Payment | The [***] month before the Scheduled Delivery Month of each A320 Group 2 Aircraft as set forth in this Agreement. | [***] | ||||||
6th Payment | The [***] month before the Scheduled Delivery Month of each A320 Group 2 Aircraft as set forth in this Agreement. | [***] | ||||||
TOTAL PAYMENT PRIOR TO DELIVERY | [***] |
Payment Date | Percentage of Predelivery Payment Reference Price | |||||||
1st Payment | Upon the Effective Date (as such term is defined in Letter Agreement No. 8 to the Amendment) in respect of each A320 Group 3 Aircraft | [***] | ||||||
No later than the [***] Working Day of the following months: | ||||||||
2nd Payment | The [***] month before the Scheduled Delivery Month of each A320 Group 3 Aircraft as set forth in this Agreement. | [***] | ||||||
3rd Payment | The [***] month before the Scheduled Delivery Month of each A320 Group 3 Aircraft as set forth in this Agreement. | [***] | ||||||
4th Payment | The [***] month before the Scheduled Delivery Month of each A320 Group 3 Aircraft as set forth in this Agreement. | [***] | ||||||
5th Payment | The [***] month before the Scheduled Delivery Month of each A320 Group 3 Aircraft as set forth in this Agreement. | [***] | ||||||
6th Payment | The [***] month before the Scheduled Delivery Month of each A320 Group 3 Aircraft as set forth in this Agreement. | [***] | ||||||
TOTAL PAYMENT PRIOR TO DELIVERY | [***] |
Payment Date | Percentage of Predelivery Payment Reference Price | |||||||
1st Payment | On signature of Amendment No. 11 to the Agreement in respect of each NEO Aircraft | [***] | ||||||
2nd Payment | January 2, 2013 | [***] | ||||||
3rd Payment | January 2, 2014 | [***] | ||||||
4th Payment | January 2, 2015 | [***] | ||||||
No later than the [***] Working Day of the following months: | ||||||||
5th Payment | The [***] month before the Scheduled Delivery Month of each A320 NEO Aircraft as set forth in this Agreement. | [***] | ||||||
6th Payment | The [***] month before the Scheduled Delivery Month of each A320 NEO Aircraft as set forth in this Agreement. | [***] | ||||||
7th Payment | The [***] month before the Scheduled Delivery Month of each A320 NEO Aircraft as set forth in this Agreement. | [***] | ||||||
8th Payment | The [***] month before the Scheduled Delivery Month of each A320 NEO Aircraft as set forth in this Agreement. | [***] | ||||||
TOTAL PAYMENT PRIOR TO DELIVERY | [***] |
2 | ASSIGNMENT |
3 | CONFIDENTIALITY |
4 | GOVERNING LAW |
5 | COUNTERPARTS |
1 | AMENDMENT |
1.1 | Appendix A-1 to Clause 16 of the Agreement is deleted in its entirety and replaced by the revised Appendix A-1 set forth hereto. |
1 | FLIGHT OPERATIONS TRAINING |
1.1 | Flight Crew Training |
1.2 | Low Visibility Operations Training |
1.3 | Flight Crew Line Initial Operating Experience |
1.4 | Type Specific Cabin Crew Training Course |
2 | PERFORMANCE / OPERATIONS COURSE(S) |
3 | MAINTENANCE TRAINING |
3.1 | The Seller will provide to the Buyer [***] trainee [***] of maintenance training [***] for the Buyer's personnel in consideration of the Buyer's order for A320 Group 3 Aircraft, Converted A321 Aircraft and NEO Aircraft. |
3.2 | The Seller will provide to the Buyer [***] Engine Run-up course. |
4 | TRAINEE DAYS ACCOUNTING |
4.1 | For instruction at the Seller's Training Centers: [***] day of instruction for [***] trainee equals [***] trainee day. The number of trainees originally registered at the beginning of the course will be counted as the number of trainees to have taken the course. |
4.2 | For instruction outside of the Seller's Training Centers: [***] day of instruction by [***] Seller Instructor equals the actual number of trainees attending the course or a minimum of [***] trainee days, except for structure maintenance training course(s). |
4.3 | For structure maintenance training courses outside the Seller's Training Center(s), [***] day of instruction by [***] Seller Instructor equals the actual number of trainees attending the course or the minimum number of trainees as indicated in the Seller's Customer Services Catalog. |
4.4 | For practical training, whether on training devices or on aircraft, [***] day of instruction by [***] Seller Instructor equals the actual number of trainees attending the course or a minimum of [***] trainee days. |
15 - | ASSIGNMENT |
16 - | CONFIDENTIALITY |
17 - | GOVERNING LAW |
18 - | COUNTERPARTS |
1 | AMENDMENT |
2 | ASSIGNMENT |
3 | CONFIDENTIALITY |
4 | GOVERNING LAW |
5 | COUNTERPARTS |
1 | AMENDMENTS |
1.1 | CREDIT MEMORANDUMS |
1.1.1 | In consideration of the Buyer's order for [***] A321 Amd 14 Aircraft, upon delivery of each A320 Group 3 Aircraft, the Seller will provide the Buyer with [***]. |
1.1.2 | [***] |
1.1.3 | [***] |
1.2 | SAVE CREDIT |
6.1 | [***]. |
6.2 | [***]. |
6.3 | The Save Credit will be deemed an A320 Group 3 Aircraft and Converted A321 Aircraft Credit Memoranda as set forth in Paragraph 2 of this Letter Agreement. |
2 | ASSIGNMENT |
3 | CONFIDENTIALITY |
4 | GOVERNING LAW |
5 | COUNTERPARTS |
1 | AMENDMENT |
2 | ASSIGNMENT |
3 | CONFIDENTIALITY |
4 | GOVERNING LAW |
5 | COUNTERPARTS |
1 | FLIGHT OPERATIONS TRAINING |
1.1 | Flight Crew Training |
1.2 | Low Visibility Operations Training |
1.3 | Flight Crew Line Initial Operating Experience |
1.4 | Type Specific Cabin Crew Training Course |
2 | PERFORMANCE / OPERATIONS COURSE(S) |
3 | MAINTENANCE TRAINING |
3.1 | The Seller will provide to the Buyer [***] trainee days of maintenance training [***] for the Buyer's personnel in consideration of the Buyer's order for A320 Group 3 Aircraft, Converted A321 Aircraft and NEO Aircraft. |
3.2 | The Seller will provide to the Buyer [***] Engine Run-up course. |
4 | TRAINEE DAYS ACCOUNTING |
4.1 | For instruction at the Seller's Training Centers: [***] day of instruction for [***] trainee equals [***] trainee day. The number of trainees originally registered at the beginning of the course will be counted as the number of trainees to have taken the course. |
4.2 | For instruction outside of the Seller's Training Centers: [***] day of instruction by [***] Seller Instructor equals the actual number of trainees attending the course or a minimum of [***] trainee days, except for structure maintenance training course(s). |
4.3 | For structure maintenance training courses outside the Seller's Training Center(s), [***] day of instruction by [***] Seller Instructor equals the actual number of trainees attending the course or the minimum number of trainees as indicated in the Seller's Customer Services Catalog. |
4.4 | For practical training, whether on training devices or on aircraft, [***] day of instruction by [***] Seller Instructor equals the actual number of trainees attending the course or a minimum of [***] trainee days. |
1 - | AMENDMENTS |
1.1 | Delivery Stream |
1.1.1 | Clauses 9.1.1.3, 9.1.1.4 and 9.1.1.5 of the Agreement are deleted in their entirety and are replaced with the following quoted text: |
Year | Scheduled Delivery Month | Aircraft | CAC ID | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] |
Year | Scheduled Delivery Month/Quarter | Aircraft | CAC ID | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] |
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] |
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] |
Year | Scheduled Delivery Quarter | Aircraft | CAC ID | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] |
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] |
1.1.2 | Clause 9.1.1.7 of the Agreement is hereby deleted in its entirety and is replaced with the following quoted text: |
Year | Scheduled Delivery Month/Quarter | Aircraft | CAC ID | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 2 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] |
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] |
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] |
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] |
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] |
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] |
2 - | EEFFECT OF THE AMENDMENT |
2.1 | The Agreement as amended by this Amendment contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous understanding, commitments or representations whatsoever, whether oral or written between the Buyer and the Seller. |
2.2 | The Agreement will be deemed amended to the extent provided in this Amendment and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. |
3 - | CONFIDENTIALITY |
4 - | GOVERNING LAW |
4.1 | THIS AMENDMENT AND THE AGREEMENTS CONTEMPLATED HEREIN WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE 22.4 OF THE AGREEMENT. |
4.2 | IT IS AGREED THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS AMENDMENT. |
5 - | COUNTERPARTS |
SPIRIT AIRLINES, INC. | AIRBUS S.A.S. | |||||||||||||
By: | /s/ Edward M. Christie | By: | /s/ Christophe Mourey | |||||||||||
Its: | SVP and CFO | Its: | SVP Contracts |
1 - | AMENDMENTS |
1.1 | Delivery Schedule |
1.1.1 | The Schedule Delivery Month for the A320 Group 3 Aircraft bearing CAC id No. [***] is advanced from [***] to [***] and the Scheduled Delivery Month for A320 Group 3 Aircraft bearing CAC id No. [***] is advanced from [***] to [***]. Clauses 9.1.1.3, 9.1.1.4 and 9.1.1.5 of the Agreement are therefore deleted in their entirety and are replaced with the following quoted text: |
Year | Scheduled Delivery | Aircraft | CAC | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] |
Year | Scheduled Delivery Quarter | Aircraft | CAC ID | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] |
Year | Scheduled Delivery Quarter | Aircraft | CAC ID | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] |
1.1.2 | Clause 9.1.1.7 of the Agreement is hereby deleted in its entirety and is replaced with the following quoted text: |
Year | Scheduled Delivery Month/Quarter | Aircraft | CAC ID | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] |
Year | Scheduled Delivery Month/Quarter | Aircraft | CAC ID | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | 2014 Converted A321 NEO Aircraft | [***] |
Year | Scheduled Delivery Month/Quarter | Aircraft | CAC ID | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | 2013 Converted Aircraft (A321 NEO) | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] |
1.2 | Letter Agreement No. 1 to Amendment No. 17 |
2 - | CONDITION PRECEDENT |
3 - | EFFECT OF THE AMENDMENT |
3.1 | The Agreement as amended by this Amendment contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous understanding, commitments or representations whatsoever, whether oral or written between the Buyer and the Seller regarding such subject matter. |
3.2 | The Agreement will be deemed amended to the extent provided in this Amendment and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. |
4 - | CONFIDENTIALITY |
5 - | GOVERNING LAW |
5.1 | THIS AMENDMENT AND THE AGREEMENTS CONTEMPLATED HEREIN WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE 22.4 OF THE AGREEMENT. |
5.2 | IT IS AGREED THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS AMENDMENT. |
6 - | COUNTERPARTS |
SPIRIT AIRLINES, INC. | AIRBUS S.A.S. | |||||||||||||
By: | /s/ Edward M. Christie | By: | /s/ Benoit de Saint-Exupery | |||||||||||
Its: | SVP and CFO | Its: | VP Contracts |
1 | AMENDMENTS |
1.1 | Definitions |
1.2 | Specification |
2.1.1 | The Aircraft will be manufactured in accordance with the following Specifications: |
Aircraft | Specification | Exhibit | ||||||
A319 NEO Aircraft | A319 NEO Specification | A-4D | ||||||
A320 Group 3 Aircraft | A320 Aircraft Iss. 8 Specification | A-4B | ||||||
A320 NEO Aircraft | A320 NEO Specification | A-4C | ||||||
A321 Amd 14 Aircraft and Converted A321 Aircraft | A321 Aircraft Iss. 5 Specification | A-4F | ||||||
A321 NEO Aircraft | A321 NEO Specification | A-4E |
2.2.2.2 | In the event of the Seller revising the Specification to incorporate Development Changes which have no adverse effect on any of the elements as set forth in Clause 2.2.2.1 above, such revision will be performed by the Seller without the Buyer's consent. |
2.2.2.3 | INTENTIONALLY LEFT BLANK |
2.3.1 (i) | Each A320 Group 3 Airframe will be equipped with an A320 Propulsion System, and |
(ii) | Each A321 Amd 14 Airframe and Converted A321 Airframe will be equipped with an A321 Propulsion System. |
2.3.2 | NEO Propulsion Systems |
(i) | Each A319 NEO Airframe will be equipped with a set of two (2) IAE LLC ("IAE LLC") PW1124G-JM engines, with an AET of [***] lbf. (such set, upon selection, an "A319 NEO Propulsion System"). |
(ii) | Each A320 NEO Airframe will be equipped with a set of two (2) IAE LLC PW1127G-JM engines, with an AET of [***] lbf. (such set, upon selection, an "A320 NEO Propulsion System"). |
(iii) | Each A321 NEO Airframe will be equipped with a set of two (2) IAE LLC PW1133G-JM engines, with an AET of [***] lbf. (such set, upon selection, an "A321 NEO Propulsion System"). |
2.4.1 | Within a reasonable period following signature of the Agreement, the Seller shall provide the Buyer with a customization milestones chart (the "Customization Milestone Chart"), setting out how far in advance of the Scheduled Delivery Month of the Aircraft an SCN must be executed in order to integrate into the Specification any items requested by the Buyer from the Seller's catalogues of Specification change options (the "Option Catalogues"). |
1.3 | Price |
(i) | The base price of the A320 Group 3 Airframe, as defined in the A320 Aircraft Iss. 8 Standard Specification (excluding Buyer Furnished Equipment and SCNs) including nacelles and thrust reversers, which is: |
(ii) | the sum of the base prices of all SCNs set forth in Exhibit A-4B, which is: |
US$ [***] |
(i) | The base price of the A320 NEO Airframe as defined in the A320 NEO Standard Specification (excluding Buyer Furnished Equipment), including nacelles and thrust reversers, which is: |
(ii) | the sum of the base prices of all SCNs set forth in Exhibit A-4C, which is: |
(i) | The base price of the A319 NEO Airframe as defined in the A319 NEO Standard Specification, Issue 1 (excluding Buyer Furnished Equipment), including nacelles and thrust reversers, which is: |
(ii) | the sum of the base prices of all SCNs set forth in Exhibit A-4D, which is: |
(i) | The base price of the A321 NEO Airframe as defined in the A321 NEO Standard Specification, Issue 1 (excluding Buyer Furnished Equipment), including nacelles and thrust reversers, which is: |
(ii) | the sum of the base prices of all SCNs set forth in Exhibit A-4E, which is: |
(i) | The base price of the A321 Amd 14 Airframe and the Converted A321 Airframe, as applicable, as defined in the A321 Aircraft Iss. 5 Standard Specification (excluding Buyer Furnished Equipment and SCNs), at delivery conditions prevailing in January 2011, which is: |
(ii) | the sum of the bases prices of all SCNs set forth in Exhibit A-4F, which is: |
(i) | The Base Price of the A320 Group 3 Airframe, A321 Amd 14 Airframe or Converted A321 Airframe, as applicable, as adjusted to the Delivery Date of such Aircraft, in accordance with the Seller Price Revision Formula 2011; |
(ii) | the aggregate of all increases or decreases to the Base Price of the A320 Group 3 Airframe, Base Price of the A321 Amd 14 Airframe or Base Price of the Converted A321 Airframe as applicable, as agreed in any SCN or part thereof applicable to such Airframe subsequent to the date of signature of |
(iii) | the V2527-A5 Reference Price or the V2533-A5 Reference Price as applicable, as adjusted to the Delivery Date of such Aircraft, in accordance with the applicable Propulsion Systems Price Revision Formula; |
(iv) | the aggregate of all increases or decreases to the V2527-A5 Reference Price or V2533-A5 Reference Price as applicable, and as agreed in any SCN or part thereof applicable to the Propulsion Systems subsequent to the date of this Agreement, as adjusted to the Delivery Date in accordance with the applicable Propulsion Systems Price Revision Formula; and |
(v) | any other amount resulting from any other provisions of this Agreement and/or any other written agreement between the Buyer and the Seller relating to the A320 Group 3 Aircraft, A321 Amd 14 Aircraft or Converted A321 Aircraft, as applicable. |
(i) | The Base Price of the A320 NEO Airframe, as adjusted to the Delivery Date of such A320 NEO Aircraft in accordance with the Seller Price Revision Formula 2011; |
(ii) | the aggregate of all increases or decreases to the Base Price of the A320 NEO Airframe as agreed in any SCN or part thereof subsequent to the date of signature of the Agreement, as adjusted to the Delivery Date of such A320 NEO Aircraft in accordance with the Seller Price Revision Formula 2011; |
(iii) | the PW1127G-JM Reference Price, as adjusted to the Delivery Date of such A320 NEO Aircraft in accordance with the applicable Propulsion Systems Price Revision Formula; |
(iv) | the aggregate of all increases or decreases to the PW1127G-JM Reference Price as agreed in any SCN or part thereof applicable to the A320 NEO Propulsion Systems subsequent to the date of this Agreement, as adjusted to the Delivery Date in accordance with the applicable Propulsion Systems Price Revision Formula; and |
(v) | any other amount resulting from any other provisions of this Agreement and/or any other written agreement between the Buyer and the Seller relating to the A320 NEO Aircraft. |
(i) | The Base Price of the A319 NEO Airframe, as adjusted to the Delivery Date of such A319 NEO Aircraft in accordance with the Seller Price Revision Formula 2011; |
(ii) | the aggregate of all increases or decreases to the Base Price of the A319 NEO Airframe as agreed in any SCN or part thereof subsequent to the date of signature of this Agreement, as adjusted to the Delivery Date of such A319 NEO Aircraft in accordance with the Seller Price Revision Formula 2011; |
(iii) | the PW1124G-JM Reference Price, as adjusted to the Delivery Date of such A319 NEO Aircraft in accordance with the applicable Propulsion Systems Price Revision Formula; |
(iv) | the aggregate of all increases or decreases to the PW1124G-JM Reference Price as agreed in any SCN or part thereof applicable to the A319 NEO Propulsion Systems subsequent to the date of this Agreement, as adjusted to the Delivery Date in accordance with the applicable Propulsion Systems Price Revision Formula; and |
(v) | any other amount resulting from any other provisions of this Agreement and/or any other written agreement between the Buyer and the Seller relating to the A319 NEO Aircraft. |
(i) | The Base Price of the A321 NEO Airframe, as adjusted to the Delivery Date of such A321 NEO Aircraft in accordance with the Seller Price Revision Formula 2011; |
(ii) | the aggregate of all increase or decreases to the A321 NEO Airframe Base Price as agreed in any SCN or part thereof applicable to the A321 NEO Airframe subsequent to the date of this Agreement, as adjusted to the Delivery Date of such A321 NEO Aircraft in accordance with the Seller Price Revision Formula 2011; |
(iii) | the PW1133G-JM Reference Price, as adjusted to the Delivery Date of such A321 NEO Aircraft in accordance with the applicable Propulsion Systems Price Revision Formula; |
(iv) | the aggregate of all increases or decreases to the PW1133G-JM Reference Price as agreed in any SCN or part thereof applicable to the A321 NEO Propulsion Systems subsequent to the date of this Agreement, as adjusted to |
(v) | any other amount resulting from any other provisions of this Agreement and/or any other written agreement between the Buyer and the Seller relating to the A321 NEO Aircraft. |
3.3.1 | The Seller will pay any and all taxes, duties, imposts or similar charges of any nature whatsoever, except for taxes based on or measured by the income of the Buyer or any taxes of a similar nature or charges levied against the Buyer or its Affiliates for the privilege of doing business in any jurisdiction, that are (i) imposed upon the Buyer, (ii) imposed upon the Seller with an obligation on the Buyer to withhold or collect the amount thereof from the Seller or (iii) imposed upon the Buyer with an obligation on the Seller to withhold or collect such amount from the Buyer, and that are levied, assessed, charged or collected for or in connection with the fabrication, manufacture, modification, assembly, sale, delivery, use of or payment under this Agreement for any Aircraft, component, accessory, equipment or part delivered or furnished hereunder, provided such taxes, duties, imposts or similar charges have been promulgated and are enforceable under the laws of the country of the Delivery Location and/or the country of manufacture, modification, assembly, sale, delivery, use of or payment for any part, component, accessory, equipment or system installed on the Aircraft on or before Delivery of such Aircraft. |
3.3.2 | The Buyer will pay any and all taxes, duties, imposts or similar charges of any nature whatsoever, except for taxes based on or measured by the income of the Seller or Associated Contractors or any taxes of a similar nature or charges levied against the Seller or its Affiliates or Associated Contractors for the privilege of doing business in any jurisdiction, that are (i) imposed upon the Seller, (ii) imposed upon the Buyer with an obligation on the Seller to collect the amount thereof for the Buyer or (iii) imposed upon the Seller with an obligation for the Buyer to withhold such amount from the Seller, and that are levied, assessed, charged or collected for or in connection with the fabrication, manufacture, modification, assembly, sale, delivery or use of or payment 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 levied, assessed, charged or collected under laws promulgated and enforceable in countries other than the country of the applicable Delivery Location and/or the country of manufacture, modification, assembly, sale, |
3.3.3 | The Seller will arrange for the exportation of the Aircraft from the country of the Delivery Location and will pay any customs duties, taxes and fees required to be paid with respect to such exportation of the Aircraft. |
3.3.4 | The Buyer will arrange for the importation of the Aircraft into any country or jurisdiction and will pay any customs duties, taxes and fees required to be paid with respect to such importation of the Aircraft. |
1.4 | A321 NEO Aircraft Downconversion |
1.5 | Aircraft Deferrals |
1.5.1 | In consideration of the Seller agreeing to the Downconversion, the Scheduled Delivery Months for the following Aircraft (the "Deferred Aircraft") are amended as follows: |
(i) | The Scheduled Delivery Month for A321 Amd 14 Aircraft bearing CAC ID No. [***] is amended from [***] to [***], and |
(ii) | The Scheduled Delivery Month for A320 Group 3 Aircraft bearing CAC ID No. [***] is amended from [***] to [***], and |
(iii) | The Scheduled Delivery Month for A320 Group 3 Aircraft bearing CAC ID No. [***] is amended from [***] to [***], and |
(iv) | The Scheduled Delivery Month for A320 Group 3 Aircraft bearing CAC ID No. [***] is amended from [***] to [***], and |
(v) | The Scheduled Delivery Month for A320 Group 3 Aircraft bearing CAC ID No. [***] is amended from [***] to [***], and |
(vi) | The Scheduled Delivery Month for A320 NEO Aircraft bearing CAC ID No. [***] is amended from [***] to [***], and |
(vii) | The Scheduled Delivery Month for A320 NEO Aircraft bearing CAC ID No. [***] is amended from [***] to [***], and |
(viii) | The Scheduled Delivery Month for A320 NEO Aircraft bearing CAC ID No. [***] is amended from [***] to [***]. |
1.6 | Predelivery Payments |
1.7 | Delivery |
1.7.1 | Clauses 9.1.1.3, 9.1.1.4 and 9.1.1.5 of the Agreement are hereby deleted in their entirety and are replaced with the following quoted text: |
Year | Scheduled Delivery Month/Quarter | Aircraft | CAC ID | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] |
Year | Scheduled Delivery Quarter | Aircraft | CAC ID | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] |
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] |
1.7.2 | Clause 9.1.1.7 of the Agreement is hereby deleted in its entirety and is replaced with the following quoted text: |
Year | Scheduled Delivery Month/Quarter | Aircraft | CAC ID | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] |
Year | Scheduled Delivery Month/Quarter | Aircraft | CAC ID | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A321 Amd 14 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | Converted A321 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 Group 3 Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] |
Year | Scheduled Delivery Month/Quarter | Aircraft | CAC ID | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] | ||||||||
[***] | [***] | A320 NEO Aircraft | [***] |
1.8 | [***] |
1.9 | Amendment 14 Order Credit |
1.10 | Mobile Deliveries |
1.10.1 | Certificate of Acceptance |
1.10.2 | Bill of Sale |
9.2.1 | The Seller will transfer title to the Aircraft to the Buyer free and clear of all liens, charges, hypothecations, mortgages and other encumbrances (except for any liens or encumbrances created by or on behalf of the Buyer), provided that the Balance of the Final Contract Price has been paid by the Buyer pursuant to Clause 5.4 and that the Certificate of Acceptance has been signed and delivered to the Seller pursuant to Clause 8.3. The Seller will provide the Buyer with (a) a bill of sale in (i) the form set forth in Exhibit E-1, if the Delivery Location is in Mobile, Alabama and (ii) in the form set forth in Exhibit E-2, if the Delivery Location is in any place other than Mobile, Alabama (the "Bill of Sale"), and/or (b) such other documentation confirming transfer of title and receipt of the Final Contract Price as may reasonably be requested by the Buyer and (c) if Mobile, Alabama is the Delivery Location, a warranty from Airbus S.A.S in the form of Exhibit J (the "Airbus S.A.S Warranty"). Property interest in and risk of loss of or damage to the Aircraft will also be transferred to the Buyer on Delivery. |
1.10.3 | BFE |
1.11 | Exhibits |
(i) | Exhibit A-1B set forth hereto is hereby added to the Agreement. |
(ii) | Exhibit A-3B set forth hereto is hereby added to the Agreement. |
(iii) | Exhibit A-4B to the Agreement is deleted in its entirety and is replaced with the Exhibit A-4B set forth hereto. |
(iv) | Exhibit A-4C to the Agreement is deleted in its entirety and is replaced with the Exhibit A-4C set forth hereto. |
(v) | Exhibit A-4D to the Agreement is deleted in its entirety and is replaced with the Exhibit A-4D set forth hereto. |
(vi) | Exhibit A-4E to the Agreement is deleted in its entirety and is replaced with the Exhibit A-4E set forth hereto. |
(vii) | Exhibit A-4F to the Agreement is deleted in its entirety and is replaced with the Exhibit A-4F set forth hereto. |
(viii) | Exhibit G-2 to the Agreement is deleted in its entirety and is replaced with the Exhibit G-2 set forth hereto. |
(ix) | Exhibit H-4 to the Agreement is deleted in its entirety and us replaced with the Exhibit H-4 set forth hereto. |
(x) | Exhibit D is deleted in its entirety and replaced with Exhibits D-1 and D-2 attached hereto. |
(xi) | Exhibit E is deleted in its entirety and replaced with Exhibits E-1 and E-2 attached hereto. |
(xii) | Exhibit J attached hereto, is hereby added to the Agreement. |
1.12 | Table of Contents |
1.12.1 | The reference to Exhibit D in the Table of Contents to the Agreement is deleted in its entirety and replaced with the following quoted text: |
EXHIBIT D-1 | FORM OF CERTIFICATE OF ACCEPTANCE (MOBILE DELIVERIES) |
EXHIBIT D-2 | FORM OF CERTIFICATE OF ACCEPTANCE (BLAGNAC/HAMBURG DELIVERIES) |
1.12.2 | The reference to Exhibit E in the Table of Contents to the Agreement is deleted in its entirety and replaced with the following quoted text: |
EXHIBIT E-1 | FORM OF BILL OF SALE (MOBILE DELIVERIES) |
EXHIBIT E-2 | FORM OF BILL OF SALE (BLAGNAC/HAMBURG DELIVERIES) |
1.12.3 | A new reference to Exhibit J is added to the Table of Contents to the Agreement in appropriate alphabetical order with the following quoted text: |
EXHIBIT J | FORM OF AIRBUS S.A.S. WARRANTY |
2 | EFFECT OF THE AMENDMENT |
2.1 | The Agreement as amended by this Amendment contains the entire agreement between the Parties with respect to the subject matter hereof and supersedes any previous understanding, commitments or representations whatsoever, whether oral or written between the Buyer and the Seller regarding such subject matter. |
2.2 | Notwithstanding the provisions of Paragraph 2.1 above, any SCNs executed by the Buyer and the Seller pursuant to Clause 2.2.1 of the Agreement (i) prior to the date hereof and (ii) in respect of any Aircraft which remain to be delivered, shall remain in full force and effect, except as may be otherwise agreed in writing between the Parties. |
2.3 | The Agreement will be deemed amended to the extent provided in this Amendment and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. |
3 | CONFIDENTIALITY |
4 | GOVERNING LAW |
4.1 | THIS AMENDMENT AND THE AGREEMENTS CONTEMPLATED HEREIN WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF CLAUSE 22.4 OF THE AGREEMENT. |
4.2 | IT IS AGREED THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS AMENDMENT. |
5 | COUNTERPARTS |
SPIRIT AIRLINES, INC. | AIRBUS S.A.S. | |||||||||||||
By: | /s/ Edward Christie | By: | /s/ Chistophe Mourey | |||||||||||
Its: | SVP and CFO | Its: | SVP Contracts |
18.1.1.1 | In accordance with the Specification, the Seller shall install those items of equipment that are identified in the Specification as being furnished by the Buyer ("Buyer Furnished Equipment" or "BFE"), provided that the BFE and the supplier of such BFE (the "BFE Supplier") are referred to in the Airbus BFE Product Catalog valid at the time the BFE Supplier is selected. |
18.1.1.2 | Notwithstanding the foregoing and without prejudice to Clause 2.4, if the Buyer wishes to install BFE manufactured by a supplier who is not referred to in the Airbus BFE Product Catalog, the Buyer shall so inform the Seller and the Seller shall conduct a feasibility study of the Buyer's request, in order to consider approving such supplier, provided that such request is compatible with the Seller's industrial planning and the associated Scheduled Delivery Month for the Buyer's Aircraft. In addition, it is a prerequisite to such approval that the considered supplier be qualified by the Seller's Aviation Authorities to produce equipment for installation on civil aircraft. Any approval of a supplier by the Seller shall be performed at the Buyer's expense. The Buyer shall cause any BFE supplier approved under this Clause 18.1.1.2 (each an "Approved BFE Supplier") to comply with the conditions set forth in this Clause 18 and specifically Clause 18.2. |
18.1.2.1 | The Seller shall advise the Buyer of the dates by which, in the planned release of engineering for the Aircraft, the Seller requires a written detailed engineering definition, encompassing a Declaration of Design and Performance (the "BFE Engineering Definition"). The Seller shall provide to the Buyer and/or the BFE Supplier(s), within an appropriate timeframe, the necessary interface documentation to enable the development of the BFE Engineering Definition. |
18.1.2.2 | The Seller shall also provide in due time to the Buyer a schedule of dates and the shipping addresses for delivery of the BFE and, where requested by the Seller, additional spare BFE to permit installation in the Aircraft and Delivery of the Aircraft in accordance with the Aircraft delivery schedule. The Buyer shall provide, or cause the BFE Suppliers to provide, the BFE by such dates in a serviceable condition, in order to allow performance of any assembly, installation, test or acceptance process in accordance with the Seller's industrial schedule. In order to facilitate the follow-up of the timely receipt of BFE, the Buyer shall, upon the Seller's request, provide to the Seller dates and references of all BFE purchase orders placed by the Buyer. |
18.1.3 | Without prejudice to the Buyer's obligations hereunder, in order to facilitate the development of the BFE Engineering Definition, the Seller shall organize meetings between the Buyer and BFE Suppliers. The Buyer hereby agrees to participate in such meetings and to provide adequate technical and engineering expertise to reach decisions within the defined timeframe. |
• | to monitor the BFE Suppliers and ensure that they shall enable the Buyer to fulfil its obligations, including but not limited to those set forth in the Customization Milestone Chart; |
• | that, should a timeframe, quality or other type of risk be identified at a given BFE Supplier, the Buyer shall allocate resources to such BFE Supplier so as not to jeopardize the industrial schedule of the Aircraft; |
• | for major BFE, including, but not being limited to, seats, galleys and IFE ("Major BFE") to participate on a mandatory basis in the specific meetings that take place between BFE Supplier selection and BFE delivery, namely: |
◦ | Preliminary Design Review ("PDR"), |
◦ | Critical Design Review ("CDR"); |
• | to attend the First Article Inspection ("FAI") for the first shipset of all Major BFE. Should the Buyer not attend such FAI, the Buyer shall delegate the FAI |
• | to attend the Source Inspection ("SI") that takes place at the BFE Supplier's premises prior to shipping, for each shipset of all Major BFE. Should the Buyer not attend such SI, the Buyer shall delegate the SI to the BFE Supplier and confirmation thereof shall be brought to the Seller in writing. Should the Buyer not attend the SI, the Buyer shall be deemed to have accepted the conclusions of the BFE Supplier with respect to such SI. |
18.1.5 | If the Buyer requests the Seller to supply directly certain items that are considered BFE according to the Specification, and if such request is notified to the Seller in due time in order not to affect the delivery date of the Aircraft, the Seller will agree to order such items subject to the execution of an SCN reflecting the effect on price, escalation adjustment, and any other conditions of the Agreement including a handling charge in the amount of [***] of the cost of the BFE item for any items up |
• | be manufactured by a qualified BFE Supplier, and |
• | meet the requirements of the applicable Specification of the Aircraft, and |
• | be delivered with the relevant certification documentation, including but not limited to the DDP, and |
• | comply with the BFE Engineering Definition, and |
• | comply with applicable requirements incorporated by reference to the Type Certificate and listed in the Type Certificate Data Sheet, and |
• | be approved by the Aviation Authority issuing the Export Airworthiness Certificate and by the Buyer's Aviation Authority for installation and use on the Aircraft at the time of Delivery of the Aircraft, and |
• | not infringe any patent, copyright or other intellectual property right of the Seller or any third party, and |
• | not be subject to any legal obligation or other encumbrance that may prevent, hinder or delay the installation of the BFE in the Aircraft and/or the Delivery of the Aircraft. |
(ii) | complying with Clause 18.2 or in providing the descriptive information or service representatives required by Clause 18.1.1, or |
(iii) | obtaining any required approval for such equipment under the Aviation Authorities' regulations |
18.3.2 | The Buyer will use reasonable commercial efforts to monitor the manufacturing, inspection and timely availability of BFE to meet the Seller's delivery requirements. |
(i) | if the Buyer discovers that the BFE delivery program is behind schedule and determines in conjunction with the BFE manufacturer that the Seller's delivery requirements cannot be met, the Buyer will, without delay, notify the Seller of the situation and of the expected delivery dates. The Buyer and Seller will mutually agree on a plan to minimize any additional costs for changes to the Seller's production program to accommodate the delay in BFE delivery. Any such additional costs will be borne by the Buyer. |
(ii) | provided such delay is in excess of [***] and a mutual agreement with respect to a recovery plan referred to in (i) above has not been reached, in addition to the consequences outlined in Clause 18.3.1, in the event of a delay or failure described in 18.3.1, the Seller, using reasonable efforts to mitigate cost, may select, purchase and install equipment similar to the BFE at issue, in which event the Final Contract Price of the affected Aircraft will also be increased by the actual purchase price of such equipment, plus handling charge in the amount of [***] of the purchase price of the BFE item and the cost of transportation, insurance, packaging and, if required and not already provided for in the price of the Aircraft, for inspection, acceptance, adjustment and calibration; or |
(iii) | if the BFE is delayed more than [***] beyond, or unapproved within, [***] of the date referenced in Clause 18.1.1, then the Seller may deliver or the Buyer may elect to have the Aircraft delivered without the installation of such BFE, notwithstanding the terms of Clause 7.2 insofar as it may otherwise have applied, whereon the Seller will be relieved of all obligations to install such equipment. |
18.5.1 | If a termination of this Agreement pursuant to the provisions of Clause 21 hereof occurs with respect to an Aircraft in which all or any part of the BFE has been installed prior to the date of such termination, the Seller will be entitled, but not required, to remove all items of BFE which can be removed without damage to the Aircraft and to undertake commercially reasonable efforts to facilitate the sale of such items of BFE to other customers, retaining and applying the proceeds of such sales to reduce Seller's damages resulting from the termination. |
18.5.2 | The Buyer will cooperate with the Seller in facilitating the sale of BFE pursuant to Clause 18.5.1 above and will be responsible for all reasonable costs incurred by the Seller in removing and facilitating the sale of such BFE. The Buyer will reimburse the Seller for all such reasonable costs within [***] of receiving documentation substantiating such costs from the Seller. |
18.5.3 | The Seller will notify the Buyer as to those items of BFE not sold by the Seller pursuant to Clause 18.5.1 above and, at the Seller's request, the Buyer will undertake to remove such items from the Seller' facility within [***] of the date of such notice. The Buyer will have no claim against the Seller for damage or destruction of any item of BFE removed from the Aircraft and not removed from Seller's facility within such period. |
18.5.4 | The Buyer will have no claim against the Seller for damage to or destruction of any item of BFE damaged or destroyed in the process of being deinstalled from the Aircraft, provided that the Seller shall have used reasonable care in such deinstallation. |
18.5.5 | The Buyer at no cost to the Seller will grant title to the Seller for any BFE items that cannot be removed from the Aircraft without causing damage to the Aircraft or rendering any system in the Aircraft unusable. |
18.5.6 | If the termination was not a result of an Excusable Delay attributable to the Buyer or a Buyer Termination Event, the Seller shall pay the Buyer for the cost of such BFE. |
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AIRFRAME: | [ENGINES/PROPULSION SYSTEMS]: | ||||
AIRBUS Model A3[•]-[•] | [Insert name of engine or propulsion system manufacturer] Model [•] | ||||
DATE OF MANUFACTURE: [•] | |||||
MANUFACTURER'S SERIAL NUMBER: [•] | ENGINE SERIAL NUMBERS: LH: [•] RH: [•] | ||||
REGISTRATION MARK: [•] |
1.1 | Base Prices |
1.2 | [***] |
1.3 | [***] |
1.4 | [***] |
1.5 | [***] |
1.5.1 | [***] |
1.5.2 | [***] |
1.5.3 | [***] |
1.5.4 | [***] |
1.1 | Reference Price of the Propulsion Systems |
1.2 | [***] |
1.3 | [***] |
1.4 | [***] |
1.5 | [***] |
1.5.1 | [***] |
1.5.2 | [***] |
1.5.3 | [***] |
1.5.4 | [***] |
i. | obligations of, or obligations the principal of and interest on which are unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent such obligations are backed by the full faith and credit of the United States of America), in each case maturing within one year from the date of acquisition thereof; |
ii. | direct obligations of state and local government entities in each case maturing within one year from the date of acquisition thereof, which have a rating of at least A- (or the equivalent thereof) from the S&P or A3 (or the equivalent thereof) from Moody's; |
iii. | obligations of domestic or foreign companies and their subsidiaries (including, without limitation, agencies, sponsored enterprises or instrumentalities chartered by an Act of Congress, which are not backed by the full faith and credit of the United States of America), including, without limitation, bills, notes, bonds, debentures, and mortgage-backed securities, in each case maturing within one year from the date of acquisition thereof and which have a rating of at least A- (or the equivalent thereof) from S&P or A-3 (or the equivalent thereof) from Moody's; |
iv. | investments in commercial paper maturing within 365 days from the date of acquisition thereof and having, at such date of acquisition, a rating of at least A-2 (or the equivalent thereof) from S&P or P-2 (or the equivalent thereof) from Moody's; |
v. | investments in certificates of deposit, banker's acceptances and time deposits maturing within one year from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any other commercial bank of recognized standing organized under the laws of the United States of America or by any State thereof that has a combined capital and surplus and undivided profits of not less than $250,000,000 and which has a long term unsecured debt rating of at least A from S&P and A2 from Moody's (or is the principal banking Subsidiary of a bank holding company that has such ratings); |
vi. | fully collateralized repurchase agreements with a term of not more than six (6) months for underlying securities that would otherwise be eligible for investment; |
vii. | Investments of money in an investment company organized under the Investment Company Act of 1940, as amended, or in pooled accounts or funds offered through mutual funds, investment advisors, banks and brokerage houses which invest its assets in obligations of the type described in (i) through (vi) above. This could include, but not be limited to, money market funds or short-term and intermediate bonds funds; |
viii. | Money market funds that (i) comply with the criteria set forth in SEC Rule 2a-7 under the Investment Company Act of 1940, (ii) are rated AAA (or the equivalent thereof) by S&P and Aaa (or the equivalent thereof) by Moody's and (iii) have portfolio assets of at least $5,000,000,000; and |
ix. | Investments, in accordance with investment policies approved by the board of directors of Spirit, in the ordinary course of business classified as a current asset according to GAAP. |
SPIRIT AIRLINES, INC. | AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC. | |||||||||||||||||||||||||
By: | /s/ David Bradford | By: | /s/ Eric Dollman | |||||||||||||||||||||||
Name: | David Bradford | Name: | Eric Dollman | |||||||||||||||||||||||
Title: | VP Treasurer | Title: | Vice President |
Dated: | ||||||||||||||
SPIRIT AIRLINES, INC. | ||||||||||||||
By: | ||||||||||||||
Name: | ||||||||||||||
Title: |
CARRIER: | ||||||||
SPIRIT AIRLINES, INC. | ||||||||
By: | /s/ David Lancelot |
Name: | David Lancelot |
Title: | SVP & CFO |
BANK: | ||||||||
U.S. BANK NATIONAL ASSOCIATION | ||||||||
By: | /s/ Michael Kennedy |
Name: | Michael Kennedy |
Title: | Its Authorized Representative |
1. | Certain Definitions |
(a) | the occurrence of an Insolvency Event; |
(b) | excepting transactions as to which Servicer shall have given its prior written consent, the merger, consolidation or amalgamation of Carrier or entry by Carrier into any analogous reorganization, amalgamation or transaction with any unaffiliated corporation, company or other entity or as a result of which Carrier is not the surviving entity; |
(c) | excepting transactions as to which Servicer shall have given its prior written consent, the sale, transfer, lease or other conveyance of all or substantially all of Carrier's assets; |
(d) | excepting transactions as to which Servicer shall have given its prior written consent, any Person or group acquires or obtains beneficial ownership of securities (including options) having a majority of the ordinary voting power of Carrier or the directors of Carrier constituting that percentage necessary to approve corporate action not being either (i) current directors, (ii) directors designated or approved by such current directors or (iii) directors approved by such current or replacement directors; |
(e) | the occurrence of a material default under this Agreement; or |
(f) | a Material Adverse Occurrence. |
2. | Exposure Protection |
(a) | Upon commencement of the Agreement, Member or Servicer may retain and hold all funds paid to Member by a Card Association on account of Sales Records submitted by Carrier to Servicer or Member as Reserved Funds until the amount of the Aggregate Protection equals the Required Amount, as determined in accordance with Sections 3 and 8 of this Exposure Protection Schedule. In lieu of retaining Reserved Funds, or in addition to retaining and holding Reserved Funds, Member or Servicer, in its sole discretion, may, based upon the Net Activity report delivered under Section 6.4 of the MTOS or other relevant documentary evidence, demand that Carrier, and Carrier shall upon such demand, remit to Servicer within two (2) Business Days of Servicer's demand immediately available funds to hold as the Deposit in an amount that when added to amounts (if any) retained and held by or on behalf of Member or Servicer as the Deposit causes the amount of the Aggregate Protection to equal the Required Amount. The Deposit amount shall be subject to adjustment as provided in Section 3 of this Exposure Protection Schedule. Member, Servicer or any Secured Party will hold the Deposit as security for the due and punctual payment of and performance by Carrier of the Obligations. |
(b) | To the extent Carrier has or may at any time acquire any rights in Carrier's Rights, Carrier grants to each of Servicer, Member, and all other Secured Parties a Lien on the Deposit and all other Carrier's Rights to secure the payment and performance by Carrier of all Obligations. Each Secured Party shall act as agent for all Secured Parties to the extent that any such Secured Party controls or possesses the Deposit or any collateral hereunder or is named as Secured Party on any filing, registration or recording. Carrier hereby acknowledges that notwithstanding the foregoing grant of a Lien, Reserved Funds represent only a future right to payment owed to Carrier under the Agreement, payment of which is subject to the terms and conditions of the Agreement and to Carrier's complete and irrevocable fulfillment of its obligations and duties under the Agreement and do not constitute funds of Carrier. |
(c) | Carrier further agrees that during the term of the Agreement, Carrier shall not grant, or attempt to grant, to any other Person or suffer to exist in favor of any other Person any Lien or other interest in Carrier's Rights (if any) unless any such Lien or other interest and the priority thereof are subject to a subordination agreement in favor of Member, Servicer and all other Secured Parties and reasonably satisfactory to Servicer. |
(d) | Carrier hereby acknowledges that Member and Servicer dispute the existence of any interest of Carrier in any rights to payment from Cardholders or Card Issuers arising out of the Sales Records and further acknowledges that to the extent it may have an interest therein, such interest is subordinate to the interests of the Secured Parties and of any of their respective subrogees. |
(e) | Carrier will do all acts and things, and will execute, endorse, deliver, file, register or record all instruments, statements, declarations or agreements (including pledges, assignments, security agreements, financing statements, continuation statements, etc.) reasonably requested by Servicer, in form reasonably satisfactory to Servicer, to establish, perfect, maintain and continue the perfection and priority of the security interest and hypothec of Secured Parties in all Carrier's Rights and in all proceeds of the foregoing, as granted by Carrier pursuant to Section 2(b) and 2(d) of this Exposure Protection Schedule. Carrier will pay the reasonable costs and expenses of all filings and recordings, including taxes thereon or fees with respect thereto and all searches reasonably necessary or deemed necessary by Servicer, to establish and determine the validity and the priority of such security granted in favor of Servicer. Carrier hereby irrevocably appoints Servicer (and all persons, officers, employees or agents designated by Servicer), its agent and attorney-in-fact to do all such acts and things contemplated by this paragraph in the name of Carrier. Without limiting the foregoing, Carrier hereby authorizes Servicer to file one or more financing statements or continuation statements in respect hereof, and amendments thereto, relating to any part of the collateral described herein without the signature of Carrier. A carbon, photographic or other reproduction of the Agreement or of a financing statement shall be sufficient as a financing statement and may be filed in lieu of the original in any or all jurisdictions which accept such reproductions. |
3. | Adjustments to Deposit |
(a) | Servicer will use the Methodology described in Section 8 of this Exposure Protection Schedule (the "Methodology") to calculate Gross Exposure each Business Day. Carrier acknowledges that Servicer has explained to it and it understands Servicer's Methodology for determining Gross Exposure and the amount of the Aggregate Protection and hereby agrees to be bound by such Methodology and the determinations made by Servicer as a result thereof, absent manifest error. Among other things, Carrier understands that Gross Exposure includes the value of Travel Costs for goods or services sold to Cardholders who used their Cards to purchase such goods or services with respect to which Carrier has not yet provided such goods or services. Servicer and Carrier may change the Methodology by mutual agreement. |
(b) | The amount of the Deposit shall be increased or decreased each Business Day, as appropriate, based on the Methodology so that the amount of the Aggregate Protection will at all times equal the Required Amount. Any necessary increases to the Deposit may be made, at Servicer's sole discretion by Member or Servicer withholding as Reserved Funds an amount up to [***] of amounts otherwise payable to Carrier under Section 6.2 of the MTOS until the amount of the Aggregate Protection is at least equal to the Required Amount, or by federal wire transfer of immediately available funds from Carrier to an account designated by Servicer, on the second (2nd) Business Day after Carrier's receipt of notice from Servicer that an increase is required and the amount thereof. If the Servicer agrees to permit increases to the amount of the Deposit by wire transfer and the funds required to increase the amount of the Deposit so that the Aggregate Protection is equal to the Required Amount are not transferred to Servicer as required by this Section 3, Member or Servicer may immediately withhold on a daily basis as Reserved Funds an amount up to [***] of amounts otherwise payable to Carrier under Section 6.2 of the MTOS until the amount of the Aggregate Protection at least equals the Required Amount. Member or Servicer shall remit to Carrier from the Deposit the amount necessary to reduce the amount of the Aggregate Protection to equal the Required Amount on each Business Day in accordance with Section 6.2 of the MTOS. |
(c) | The amount of the Deposit to be maintained hereunder may be reduced in accordance with Section 9 of this Exposure Protection Schedule pursuant to which Servicer accepts Letter of Credit in lieu of all or a portion of the Deposit so long as the Aggregate Protection equals the Required Amount. |
(d) | Although Servicer has the right at all times to require that the amount of the Aggregate Protection equal the Required Amount, Servicer may, from time to time, in its sole discretion make remittances to Carrier or release portions of any Letter of Credit such that the Aggregate Protection is less than the Required Amount. The duration of any such reduction is within the sole discretion of Servicer. At any time that the amount of the Aggregate Protection is less than the Required Amount Servicer, in its sole discretion, may again require that the amount of the Aggregate Protection equal the Required Amount. Any required increase may be made as provided in Section 3(b) of this Exposure Protection Schedule as determined by Servicer. Any reductions in the amount of the Aggregate Protection as described in this paragraph shall not be deemed a course of dealing nor give rise to any rights by Carrier in the future to require that the amount of the Aggregate Amount be less than the Required Amount. |
4. | Control of Deposit |
5. | Investment |
6. | Right of Offset; Recoupment; Application |
7. | Retention of Deposit After Cessation of Flight Operations |
8. | Methodology |
9. | Standby Letter of Credit |
(a) | The amount of the Aggregate Protection which Servicer or Member may maintain pursuant to this Exposure Protection Schedule shall include the sum of (a) the amount remaining to be drawn upon any valid and outstanding Letter of Credit and (b) the proceeds of any previous draw on a Letter of Credit held by Servicer or Member and not applied. At such time as the Servicer or Member may no longer draw on the Letters of Credit, Servicer may require that the amount of the Deposit plus proceeds of any draw on the Letters of Credit held by Servicer or Member and not applied equal the Required Amount. |
(b) | Upon the occurrence of any event that gives rise to Servicer's right under this Agreement to make demand on Carrier for payment to Servicer or Member of any Obligations and after (i) application of all amounts held as part of the Deposit and (ii) application of all amounts that would otherwise be payable to Carrier from Member or Servicer under the Agreement on such date, if any, then the Servicer, at its option, may draw on any Letter of Credit issued for its benefit with respect to the Agreement to pay such Obligations in an amount that does not exceed the sum of (A) the amount the Servicer has a right to demand that the Carrier pay the Servicer or Member under this Agreement on such date plus (B) the amounts the Servicer reasonably believes it will have a right to demand that the Carrier pay the Servicer or Member as Obligations during the following seven day period. |
(c) | Notwithstanding anything to the contrary contained in this Section 9 to the contrary, Servicer may draw upon the full amount of a Letter of Credit if sixty (60) days have passed since Servicer delivered written notice to Carrier that the rating of the bank that issued the Letter of Credit has fallen below (A) [***] under the Moody's Investors Service rating system or (B) [***] under the Standard and Poor's rating system, or (C) if ratings from either of those services are unavailable, the equivalent rating of any of the foregoing under any similar rating system. |
(d) | Notwithstanding anything to the contrary contained in this Section 9 to the contrary, Servicer may draw upon the full amount of a Letter of Credit if (i) five (5) Business Days have passed since the rating of the bank that issued the Letter of Credit has fallen below (A) [***] under the Moody's Investors Service rating system or (B) [***] under the Standard and Poor's rating system, or (C) if ratings from either of those services are unavailable, the equivalent rating of any of the foregoing under any similar rating system, (ii) an Insolvency Proceeding is commenced by or against Carrier or (iii) the Letter of Credit is set to expire within 60 days and Servicer has not received notice of renewal of the Letter of Credit or an replacement letter of credit acceptable as to form and issuer in the sole discretion of Servicer. |
(e) | Carrier acknowledges that subject to its right to receive payments under this Agreement, it has no interest in any proceeds of any draw on any Letter of Credit issued for the benefit of Servicer or Member and that upon any valid draw on any Letter of Credit, Servicer or Member shall be entitled to hold the proceeds thereof for payment of the Obligations under the Agreement and apply such proceeds in payment thereof as and when Servicer reasonably deems appropriate, subject to the provisions of Section 7 of this Exposure Protection Schedule. Neither Servicer nor Member shall have any obligation to remit to any Person any excess proceeds of any draw on any Letter of Credit until expiration of the period specified in Section 7 of this Exposure Protection Schedule. In the event of any dispute between Carrier and the issuer of a Letter of Credit or any subrogee thereof, or any other Person with respect to entitlement to any proceeds of a Letter of Credit, Servicer or Member may retain all such proceeds until final resolution of such dispute by a court of competent jurisdiction, subject to the right of Servicer or Member to retain and apply proceeds in payment of the Obligations. In the event that Servicer or Member draws on a Letter of Credit and holds the proceeds thereof at a time when Carrier is conducting normal flight operations, Servicer or Member, at its option, may include such proceeds in its calculation of coverage for the Required Amount and remittances to Carrier may be made in accordance with Section 2 of this Exposure Protection Schedule as if the proceeds were part of the Deposit. Carrier further agrees that at Servicer's option, any excess proceeds of a Letter of Credit, as determined by Servicer in good faith after taking into account all obligations of the Carrier to the Secured Parties, may be remitted to the issuer of a Letter of Credit, or if the issuer has been reimbursed in full for all amounts owed to it on account of the draw on the Letter of Credit, to the account party thereof. |
10. | Fare Club Exposure |
(a) | Notwithstanding anything to the contrary contained in the Letters dated on or about February 10, 2010 or June 13, 2011, the "Fare Club Exposure," as determined in accordance with this Section 10 shall be added to the calculation of Gross Exposure at all times; provided, however, the amount of the Fare Club Exposure will only be modified as of the last Business Day of each month. |
(b) | Within 10 days of the end of each month, Carrier shall provide Servicer with a report of its Fare Club membership sales for the preceding month made through the use of a Card (the "Fare Club Sales Report"). |
(c) | At the conclusion of each six month period, Servicer shall complete a reconciliation between the actual Fare Club Exposure then held and the actual exposure based upon the Fare Club Sales Reports (the "Reconciled Exposure"). The actual exposure for determining the Reconciled Exposure shall be determined by taking the fare club sales for any particular month and reducing such amount by [***] of the original monthly sale amount in each month after such sale until the amount reaches zero, with the first [***] reduction occurring in the month the fare club sale occurs (the "Exposure Reduction Methodology"). Based upon such reconciliation, the amount of Fare Club Exposure will modified to be equal to the Reconciled Exposure. |
(d) | During each successive six month period, the Fare Club Exposure will be determined by (i) using the most recent Reconciled Exposure and reducing such amount in each successive month in accordance with the Exposure Reduction Methodology and (ii) adding to the Fare Club Exposure each month an amount equal to the average monthly amount of fare club sales as determined by the most recent six Fare Club Sales Reports, but subtracting from the Fare Club Exposure an amount determined by applying the Exposure Reduction Methodology in succeeding months to the amounts added to the Fare Club Exposure. |
(e) | Servicer reserves the right to modify the Fare Club Exposure to the extent that Carrier sells fare club memberships with a term longer than one year. Carrier may request that Servicer adjust the calculation of Fare Club Exposure if at any time more the 40% of the fare club memberships then outstanding, when originally sold, were for terms materially shorter than one year. |
11. | Deposit Upon Termination of the Agreement. |
12. | Compliance Certificate and Monthly Unrestricted Cash Report |
SPIRIT AIRLINES, INC. | ||||||||
By |
Name: |
Title: |
Name of Subsidiary | Incorporated | |||||||
Spirit Finance Cayman 1 Ltd | Cayman Islands | |||||||
Spirit Finance Cayman 2 Ltd | Cayman Islands | |||||||
Spirit IP Cayman Ltd | Cayman Islands | |||||||
Spirit Loyalty Cayman Ltd | Cayman Islands |
Date: February 9, 2024 | /s/ Edward M. Christie | ||||
Edward M. Christie | |||||
President and Chief Executive Officer |
Date: February 9, 2024 | /s/ Scott M. Haralson | ||||
Scott M. Haralson | |||||
Executive Vice President and Chief Financial Officer | |||||
Date: February 9, 2024 | /s/ Edward M. Christie | ||||
Edward M. Christie | |||||
President and Chief Executive Officer | |||||
Date: February 9, 2024 | /s/ Scott M. Haralson | ||||
Scott M. Haralson | |||||
Executive Vice President and Chief Financial Officer | |||||
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