EXHIBIT 10.25
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE
CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND ARE DENOTED BY [***]. THE
CONFIDENTIAL PORTIONS HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION.
AIRCRAFT MAINTENANCE SERVICES AGREEMENT made effective the 27 day of August,
1997.
BETWEEN:
TIME AIR INC., doing business as CANADIAN
REGIONAL, a body corporate, with head office in
the City of Calgary, in the Province of Alberta.
(hereinafter called "Time")
OF THE FIRST PART
AND:
MIDWAY AIRLINES CORPORATION a body corporate,
having its principal place of business at the
City of Durham, in the State of North Carolina.
(hereinafter called the "Customer")
OF THE SECOND PART
WHEREAS:
A. Customer has certain aircraft bearing manufacturer's serial numbers and
United States registrations as more particularly identified by Customer to
Time from time to time (hereinafter called the "Aircraft") and requires
certain services to be performed on the Aircraft from time to time; and
B. Time operates a maintenance facility located at Calgary International
Airport (the "Facility") and has the facilities and capabilities to
carry out the performance of the required services on the Aircraft upon
and subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, THIS AGREEMENT WITNESSETH that in consideration of the premises
and the mutual covenants, terms, conditions and warranties herein contained, the
parties hereto agree each with the other as follows:
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1 SERVICES TO BE PERFORMED BY TIME
1.1 Time agrees, subject to the terms and conditions of this Agreement, to
perform at the Facility the following services:
a) maintenance services on the Aircraft delivered by Customer from time
to time during the term of this Agreement as agreed in writing
between Customer and Time in substantially the format described in
Schedule "A" (the "Maintenance Services");
b) Additional work identified after commencement of the Maintenance
Services using Time's non-routine work cards, which are legally
acceptable pursuant to Customer's approved maintenance program (the
"Program") provided that such additional work is first approved in
writing by Customer's representative. Such additional work may
include the removal, overhaul or shop check and the re-installation
of rotables and repairables upon the Aircraft as requested by
Customer in writing, concurrently with the Maintenance Services (the
"Additional Services") (Maintenance Services and Additional
Services, if any, are referred to in this Agreement collectively as
the "Services");
c) Upon the completion of the Services, certify the same and forward
all records, airworthiness tags or certificates to Customer for its
log book and filing;
d) Provide the required parts for the Services not supplied by
Customer. Parts supplied by Customer will be transported to the
Facility at the sole cost and risk of Customer.
e) Provide all tooling necessary to perform the Services, however, if
Customer provides tooling to Time to complete the Services, then
Customer shall receive an appropriate credit against the invoice for
the Services (to be agreed in writing prior to commencement of use
by Time of such Customer supplied tooling) for providing such
tooling and the tooling will be returned to Customer at the
completion of Services in as good a condition as it was when
provided to Time, reasonable wear and tear excepted.
1.2 In order to schedule and formalize the performance of Services by Time
hereunder, not less than six (6) months prior to the date which Customer
desires to deliver an Aircraft to Time hereunder, it shall submit to Time,
a Customer signed agreement in the form of Schedule "A" attached hereto (a
"Service Order Request"). If Time has an available slot to perform the
Services described in the Service Order Request, then it shall promptly
execute such Service Order Request, then it shall promptly execute such
Service Order Request and return it to Customer and the parties will be
bound to perform their respective obligations under this Agreement with
respect to the Aircraft identified in such Service Order Request during
the period set forth therein and the same shall be deemed a "Service
Order" for purposes of this
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Agreement. If Time does not have an available slot to perform the
Services described in such Service Order Request during the period set
forth in item 2 of the same, then it will promptly notify Customer in
writing and if Time has alternate available slots, offer alternate slots
to Customer. Customer may then choose such an alternate slot and Time and
Customer will promptly execute an agreement in the form of Schedule "A"
consistent with Customer's selection and the same shall be deemed a
Service Order hereunder. Upon execution of any Service Order, the parties
will be bound to perform their respective obligations under this
Agreement with respect to the Aircraft identified in such Service Order.
With respect to Aircraft identified as N130ML and N131ML, Customer and
Time have entered into the Service Orders attached hereto in Schedule
"C". Notwithstanding the foregoing, Customer shall have no obligation to
deliver an Aircraft to Time for the performance of Services hereunder at
a particular time unless Customer has executed a Service Order with
respect to the performance of Services on such Aircraft at such time.
1.3 Before commencing work on Additional Services, Time will obtain written
acceptance of Time's estimate of costs to complete such Additional
Services from Customer's Representative (as defined in Section 1.4 below).
Time's estimate must include costs allocable to labour for production,
inspection, planning, engineering and administration, as the case may be.
Acceptance or rejection of such estimate will not be ureasonably delayed
by Customer's Representative. If Customer's Representative does not accept
such estimate, in writing, within 24 hours of its submission by Time, then
the estimate will be deemed to have been rejected and the subject
Additional Services will not be performed. If non-performance of such
Additional Services will prevent Time from completing the Maintenance
Services, Time will promptly notify Customer in writing.
1.4 For each Aircraft delivered by Customer to Time for Services hereunder,
Customer shall designate a Customer representative ("Customer's
Representative") and shall provide Time with that person's telephone
numbers, pager number and facsimile number. If Customer's Representative
will not be available at any time during the performance of Services by
Time hereunder, then that person shall designate another Customer
Representative and provide Time with the alternate's telephone numbers,
pager number and facsimile number.
2 GENERAL CONDITIONS
2.1 If requested by Customer, Time shall perform its standard maintenance
run-up on completion of the Services on any of the Aircraft, for which
Customer shall bear the costs of all required fuel and oil.
2.2 Customer shall provide flight crew should an acceptance test flight be
required before Customer takes re-delivery of an Aircraft pursuant to
paragraph 3.1, and such acceptance flight shall be carried out at the sole
risk of Customer. Customer shall bear all fuel, oil and landing fee costs
therefore, except to the extent such test flight is required to retest the
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Aircraft prior to re-delivery due to the discovery or confirmation of a
defect relating to the services in the previous test flight.
2.3 Time shall perform all of the Services hereunder in accordance with Time's
standard practices and the Program. Time represents and warrants to
Customer that it has all necessary approvals and/or licenses to perform
the Services hereunder pursuant to the rules and regulations of the
Canadian Ministry of Transport ("MOT"). Time shall maintain the necessary
records, on its standard forms, covering the Services furnished hereunder,
including records of all labour hours expended. The records shall be open
to examination and inspection by Customer during Time's normal business
hours and Time, upon request by Customer, shall furnish to Customer all
current information with respect thereto.
2.4 In order to assist Time in carrying out the Services pursuant hereto,
Customer has already delivered to Time and will deliver any subsequent
changes or supplements to Time such technical, operational and maintenance
records, books, logs, drawings and publications in its control or
possession that relate to the applicable Aircraft, line replacement unit
("LRU") or part, including the Program, and Time shall be entitled to rely
thereon and complete the Services in accordance therewith. Time shall keep
accurate records of the Services it performs hereunder in accordance with
the approved procedures of the MOT, together with such other records as
the parties may, from time to time, agree upon in writing, and shall make
such records available to Customer upon request by Customer.
2.5 On any exchange of rotables Time shall request that Customer furnish
appropriate technical history including back to birth records (if required
by regulation of MOT) and airworthiness certification documents evidencing
title to such equipment or the Customer's right to make such exchange and
in such case Customer shall furnish documents forthwith upon demand.
2.6 Time shall furnish all engineering services as required at rates specified
in Article 4.
2.7 Time, together with Customer's Representative, shall carry out and
document an equipment check on Time's receipt of the Aircraft and again on
the re-delivery of the Aircraft to Customer.
2.8 Time may subcontract Services pertaining to the repair or overhaul of a
component or of the Aircraft's structure (provided such structural repairs
are completed at Time's Facility) to subcontractors approved by Customer's
Representative, such approval or rejection not to be unreasonably delayed.
If approved, Time shall be responsible for ensuring such subcontractor's
performance is in accordance with this Agreement as if the latter were a
party hereto.
3 CUSTOMER COVENANTS
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3.1 Customer shall, at its sole expense and risk, deliver the Aircraft to the
Facility and following the completion of the Services shall take
re-delivery of the Aircraft at the Facility.
4 PAYMENT
4.1 For and in consideration of Time performing the Services pursuant to this
Agreement, Customer shall pay to Time at the rates set out in Schedule "B"
as follows:
a) prior to commencement of the Services, Customer shall pay to Time
the amount as set forth in Schedule "A" hereto;
b) on completion of the Services by Time, Time will invoice Customer at
the address set out in Article 9.7 for the remaining balance owing
for the Services, and Customer undertakes to pay such invoices in
accordance with Section 4.2, within thirty (30) days of the date of
such invoice.
4.2 All amounts payable herein by Customer to Time shall be paid by Customer
by wire transfer to the account of Time at:
Pay to: Chase Manhattan Bank, New York
ABA No. 021 00 00 21
Furtherance to: The Royal Bank of Canada
Main Branch
000 - 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx X0X 0X0
Xxxxxx
Transit No. 00009
Credit to: Time Air Inc.
Account No.: 000-000-0
or at such other account or in such other manner as Time may from time to
time advise Customer by notice in writing.
4.3 Customer agrees that it will pay to Time all taxes of whatsoever kind or
nature (but excluding taxes arising on the net income or gain of Time),
all as further detailed in Section 9.2 hereof.
4.4 Should any payment hereunder not be made to Time within the time periods
established, Customer shall pay Time, in addition to the amount
outstanding, interest calculated at one and one half (1.5%) percent per
annum over the base interest rate of the Bank of Montreal,
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Canada, established from time to time from the date the payment was due
until received by Time.
4.5 Notwithstanding any provision hereof, Customer shall pay to Time any
amounts assessed at any time or from time to time by the Canadian tax
authorities under a Goods and Services Tax ("GST") on account of goods
and/or services sold hereunder provided that Time shall remit the GST to
the tax authorities and any credit arising on account of GST paid under
this Agreement shall be credited to Customer. All invoices submitted by
Time pursuant hereto shall have the applicable GST clearly identified
thereon. Time and Customer shall each endeavour to lawfully minimize the
payment of the GST.
5 TURNAROUND TIMES
5.1 Time shall use its best efforts but shall not be bound to complete the
Services within the period set forth in Schedule "A" hereof.
6 WARRANTY
6.1 Time warrants that all of the Services performed by Time pursuant to
this Agreement shall be performed in accordance with this Agreement and
free from defects in material and/or workmanship. This warranty shall
apply in the event it is established to Time's reasonable satisfaction
that the Services were not so performed, that a defect is or was
present or that an Aircraft has become unserviceable within [***]
operating hours or [***] operating cycles of being refurbished or
repaired by Time, or within [***] of the date of redelivery thereof to
Customer, whichever shall first occur, provided written notice of such
warranty claim has been given by Customer to Time within thirty (30)
days of the discovery thereof by Customer.
6.2 Time hereby warrants that all parts, components and materials shall be
free and clear of all liens, charges and encumbrances whatsoever (other
than those arising by or through Customer).
6.3 Subject to Sections 6.4 and 6.5, Time's obligations pursuant to this
Article 6 shall be as follows:
a) to supply the labour required to correct such defective material
and/or workmanship by Time to meet Customer's Program standards; and
b) to repair or replace the equipment that is defective to meet
Customer's Program standards.
Subject to the terms of the next paragraph, the obligations set forth
herein shall only require Time to return equipment that is defective in
material or workmanship to the condition it was in at the time the defect
occurred. The cost of any replacement parts pursuant to this
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warranty shall be calculated by prorating the current replacement cost
thereof in proportion to the hours or cycles remaining on the defective
parts or portions thereof at the time the defect occurred. Additional work
requested by Customer shall be at Customer's sole expense.
Notwithstanding the preceding paragraph, in the event Customer deems it
impracticable to return the Aircraft or any part to Time's facility,
Customer may effect repair of same, subject to all remaining terms and
conditions within this Article pertaining to WARRANTY, provided that
Customer submits prior notice to Time of Customer's intention to effect
the repairs, including particulars of the party who would be doing the
repairs, and further provided that Time shall have given its consent
(i.e., via return teletype or facsimile within a reasonable time of
Customer's request) in advance of Customer undertaking such repairs (which
consent will not be unreasonably withheld or delayed). Time shall pay for
such repairs at a rate not to exceed its own labour rates set forth in
Schedule "B".
6.4 Time's obligations under this Article 6 shall be subject to the
following conditions:
a) that Customer shall pay all transportation charges and delivery
costs of returning the equipment to the Facility and Time agrees to
credit such costs if the warranty is accepted;
b) that defective equipment has been operated in accordance with
Customer's approved manuals or the instructions and recommendations
of the manufacturer, as the case may be;
c) that the defective equipment has been used under normal operating
conditions, has not been subject to misuse, neglect, accident or
ingestion of foreign material and has not been refurbished, altered
or repaired by anyone other than Time or Time's contractors or
subcontractors in any manner that could contribute to or cause any
claim with respect to defective workmanship by Time;
d) that Time shall have the sole right to determine whether such repair
or replacement of any defective material and/or workmanship or part
or portion thereof shall be required; and
e) that there shall not be included any labour charges of Customer for
replacement of parts, adjustments or repairs or any other work
unless such charges receive the prior authorization in writing of
Time.
6.5 THE AFORESAID WARRANTY IS IN SUBSTITUTION OF AND EXCLUDES ALL WARRANTIES,
GUARANTEES, CONDITIONS AND LIABILITIES WITH RESPECT TO THE QUALITY OF THE
SERVICES OR MATERIALS PROVIDED BY TIME HEREUNDER, WHETHER STATUTORY,
EXPRESS OR IMPLIED, ARISING BY LAW
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OR OTHERWISE (INCLUDING WITHOUT LIMITATION, ANY OBLIGATION OF TIME WITH
RESPECT TO FITNESS, MERCHANTABILITY, RELIABILITY, DURABILITY,
MAINTAINABILITY, SPECIFICATION REQUIREMENTS, AND CONSEQUENTIAL DAMAGES)
AND WHETHER OR NOT ARISING OR SOUNDING IN CONTRACT OR TORT, INCLUDING
NEGLIGENCE. TIME FURTHER DOES NOT WARRANT NOR IS IT IN ANY WAY LIABLE TO
CUSTOMER FOR THE QUALITY AND SUITABILITY OF NEW PARTS PURCHASED BY TIME
OR CUSTOMER AND INSTALLED IN OR ON AN AIRCRAFT OR PART THEREOF AS PART OF
THE PERFORMANCE BY TIME OR ANY SERVICE RENDERED PURSUANT TO THIS
AGREEMENT. THE AFORESAID WARRANTY SHALL NOT BE EXTENDED, ALTERED OR
VARIED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY TIME AND CUSTOMER. IN THE
EVENT THAT ANY PROVISIONS HEREOF SHOULD, FOR ANY REASON, BE HELD INVALID
OR INEFFECTIVE, THE REMAINDER OF THIS SECTION 6 SHALL REMAIN IN FULL
FORCE AND EFFECT.
7 WAIVER, INDEMNIFICATION AND INSURANCE
7.1 For the purposes of this Article 7, the term "Time" shall be deemed to
include the parent, subsidiary, associate and affiliate corporations of
Time, together with such corporation's directors, officers, servants,
agents and employees.
7.2 "Claim" for the purposes of this Agreement includes demands, claims,
reasonable actions, causes of action, judgments and liabilities of any
nature whatsoever (together with reasonable legal fees incurred by Time in
resisting same or any of them) for injury, including death, loss or damage
when the same is based upon or arises out of:
a) any of the Services, parts or material provided by Time pursuant
to this Agreement;
b) any negligent or defective workmanship on the part of Time or its
contractors or subcontractors in providing such service, parts or
material;
c) loss of or damage (including any resultant damage) to the
Aircraft negligently or otherwise caused or contributed to by
Time or its contractors or subcontractors.
7.3 Customer hereby undertakes:
a) that it shall not make or bring any Claim against Time, or its
contractors or subcontractors unless caused by the wilful
misconduct of Time or its contractors or subcontractors while
engaged in performing the Services;
b) to indemnify and hold harmless Time and its contractors and
subcontractors against each and every Claim brought or prosecuted
by anyone claiming by, through or under Customer (specifically
excluding any employee or agent of Time, its contractors or
8
subcontractors or any agent or employee of the same unless the Claim
arises from transportation on Customer's aircraft as a revenue
passenger) unless caused by the wilful misconduct of Time or its
contractors and subcontractors while acting within the scope of
their duties, employment, or contract; and
c) that it shall, at its expense, obtain and maintain in full force and
effect comprehensive legal liability insurance of not less than
Three Hundred Million ($300,000,000.00) Dollars (U.S. funds) per any
one occurrence, Aircraft Hull Insurance covering the Aircraft or any
part thereof, and All Risks Property Insurance on parts, materials,
inventories, kits and any other property of Customer while not
installed on the Aircraft. Such insurance policies shall provide
that:
i) Customer's insurers agree and accept the contractual liability
assumed by Customer under this Agreement,
ii) Time and its contractors or subcontractors are included as
additional insureds under the comprehensive legal liability
insurance and the policy contains a standard cross liability
clause,
iii) the insurance policies contain a breach of warranty clause
whereby the insurers agree that a breach of the insurance
conditions by Customer shall not invalidate the coverage
provided by the insurance as to the interests of Time,
iv) the insurers agree that the insurance shall be primary without
right of contribution from any other insurance carried by
Time,
v) the insurers of Customer's Aircraft Hull Insurance and All
Risks Property Insurance agree to waive all rights of
subrogation they may have against Time or its contractors or
subcontractors,
vi) notwithstanding any right of cancellation or material change
reserved by Customer's insurers, the insurances shall continue
in force for the benefit of Time until at least thirty (30)
days after notice of such cancellation or material change
shall have been received by Time, and
vii) Customer shall furnish to Time forthwith upon the execution of
this Agreement a certificate of insurance certifying that such
policies of insurance endorsed as required are in full force
and effect.
7.4 The provisions of this Article 7 shall not apply to the warranty
obligations set forth in Article 6 hereof.
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7.5 All waivers and indemnifications or warranties made in respect of the
subject matter hereof, including Articles 6 and 7, shall survive the
termination of this Agreement and shall bind Customer and Time and their
successors and permitted assigns.
8 WARRANTIES AND INDEMNIFICATIONS FROM MANUFACTURERS
8.1 Time shall provide an extension to Customer of commercial warranties and
indemnities (for those that are available) against patent infringement
from manufacturers of parts furnished to Customer by Time, and Time shall
inform Customer of the names of manufacturers from whom such extensions
have been received.
8.2 Upon request and to the best of its ability, Time shall give Customer
technical assistance in processing any warranties, claims, including
claims asserted by Customer against the manufacturer of parts used in the
Services hereunder.
9 MISCELLANEOUS
9.1 For the purpose of this Section 9.1 "event of force majeure" shall include
but shall not be limited to, acts of God or of the public enemy, war,
declared or undeclared, revolution, riot, insurrection, civil commotion,
fires, floods, storms, slides, epidemics, quarantine restrictions, strikes
or lockouts, including illegal work stoppages or slowdowns, embargoes,
power failures, failure of transportation, or the requirement of any
lawful authority affecting the services contemplated by this Agreement;
provided that any such event or circumstance is a disabling event or
circumstance that is beyond the reasonable control of the party affected
and results in a material delay, interruption or failure by the affected
party in carrying out its duties or obligations under this Agreement.
Under no circumstances shall lack of money, financing or credit be deemed
to be an event of force majeure. If an event of force majeure occurs or is
likely to occur, the party directly affected shall promptly notify the
other of the particulars thereof and, if possible, supply supporting
evidence. The party so affected shall use its best efforts to remove,
curtail or contain the event of force majeure and to resume with the least
possible delay compliance with its duties, covenants and obligations under
this Agreement. No party shall be liable to the other for any delay,
interruption or failure in the performance of its duties, covenants or
obligations hereunder if and to the extent the same are caused by an event
of force majeure; the date limited for the performance of such duties or
obligations hereunder shall be postponed for a period equal to the delay
occasioned by such event of force majeure. While Time's performance
hereunder is affected by an event of force majeure, Customer shall be
entitled to terminate any Service Order which is then in effect between
the parties and obtain a refund of all payments made in advance of the
performance of Services which were not performed prior to such
termination. In addition, at no cost to Customer, Time will provide
assistance reasonable in the circumstances in preparing for the removal of
the Aircraft which is the subject of any terminated Service Order from
Time's Facility upon Customer's request.
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9.2 In addition to the charges to be paid for Services provided or goods sold
hereunder, Customer shall pay and agrees to indemnify and hold harmless
Time from and against any and all taxes, customs duties, levies or
assessments of whatsoever nature, including but not limited to sales taxes
payable as a result of the sale to Customer of Services or parts pursuant
to this Agreement and all reasonable attorneys' fees, costs and expenses
incurred in connection therewith (excluding any taxes based upon the net
income or gain of Time) which are or may be assessed against, chargeable
to or collectable from either Customer or Time by any lawful taxing
authority and which are based upon or levied by any lawful taxing
authority in respect of the performance of this Agreement or the sale,
delivery or furnishing of any parts, materials or any of the Services
hereunder; provided, however, Customer shall only be liable for taxes
assessed on parts, equipment or materials to the extent the same has been
sold to Customer by Time hereunder for value. If a claim is made against
either Customer or Time for any tax, customs duty, levy or assessment,
Time, upon receiving notice of such claim, shall promptly notify Customer.
If reasonably requested by Customer in writing, Time upon receipt of the
aforesaid indemnification shall not pay any such tax or penalty or
interest assessed except under protest and if payment is made Time shall
use its reasonable efforts to obtain a refund thereof or permit Customer
to protest such tax in Time's name. If all or any part of such tax,
penalty or interest shall be refunded, Time shall repay to Customer the
equivalent amount to that paid by Customer to Time. Customer shall pay to
Time upon demand all reasonable expenses incurred by Time in protesting
payment of such tax and endeavouring to obtain the aforesaid refund at
Customer's request.
9.3 This Agreement and each Service Order executed pursuant to this Agreement
represents the entire agreement of the parties hereto with respect to the
subject matter hereof and shall supersede all prior verbal and/or written
agreements and shall enure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.
9.4 In the event Customer shall file a voluntary petition in bankruptcy, make
any assignment for the benefit of creditors of all or substantially all of
its assets, or fail to secure dismissal of an involuntary petition in
bankruptcy within sixty (60) days after the filing thereof, or take
advantage of any act for the benefit of creditors or for the orderly
composition of debts or suffer any property to be taken in execution, then
Time may terminate this Agreement upon one (1) day written notice to
Customer.
9.5 The rights of the parties to require strict performance and observance of
any obligations hereunder shall not be affected in any way by any previous
waiver, forbearance or course of dealing. Exercise by either party of its
right to terminate hereunder shall in no way affect or impair its right to
bring suit for any default or breach of this Agreement.
9.6 In the event of termination of this Agreement, as provided in section 9.1
above, Customer shall pay to Time the charges computed at the applicable
rates established in this Agreement for any costs or expenses that Time
may have incurred prior to Customer giving notice of such termination to
Time. Time shall use its reasonable efforts to reduce such termination
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costs and expenses so as to include only work in process (including
project kits) and items ordered from vendors.
9.7 Either party hereto may give to the other any notice required or permitted
by the terms of this Agreement by personal delivery, telex, facsimile or
by mailing same by prepaid registered mail (in which event, in the absence
of a postal disruption, receipt shall be deemed to occur within five (5)
days after mailing) addressed to:
a) if to Time:
Time Air Inc., doing business
as Canadian Regional
Suite 2800, 000 0xx Xxxxxx X.X.
Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
Attention: Supervisor, Contracts
Telefax: (000) 000-0000
with a copy to:
Time Air Inc., doing business
as Canadian Regional
Hangar #00, 000 Xxxxxx Xxxx X.X.
Xxxxxxx, Xxxxxxx Xxxxxx X0X 0X0
Attention: Manager, Maintenance
Phone: (000) 000-0000
Telefax: (000) 000-0000
b) if to Customer:
Midway Airlines Corporation
000 X. Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx Xxxxxxxx
00000
Attention: Mr. Xxxxxx Xxxxx Jr., Vice-President of
Maintenance and Engineering
Phone: (000) 000-0000
Telefax: (919) 682-1690
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With a copy to:
Midway Airlines Corporation
000 X. Xxxxxx Xxxxxx
Xxxxxx, Xxxxx Xxxxxxxx
00000
Attention: General Counsel
Phone: (000) 000-0000
Telefax: (000) 000-0000
9.8 Customer shall not assign its rights, interest and obligations under this
Agreement either in whole or in part. Time may assign its rights,
interests and obligations (other than pursuant to Article 6 above)
hereunder to any affiliated or successor corporation of Time.
9.9 This Agreement shall not be amended except by written instrument executed
by the respective authorized signing officers of each of the parties
hereto.
9.10 This Agreement shall commence on the 27 day of August, 1997, and shall
continue to and including the 1st day of June 1998, provided that either
party may terminate this Agreement with respect to any Aircraft for which
an uncompleted Service Order is not then in effect upon providing sixty
(60) days prior written notice to the other party. This Agreement shall
renew automatically for successive periods of one (1) year unless either
party gives notice of its election to reject such renewal not less than
sixty (60) days prior to the renewal date.
9.11 This Agreement shall be governed by and construed in accordance with the
laws of the Province of Alberta and the federal laws of Canada applicable
therein.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
by the hands of their respective authorized signing officers as of the day and
year first above written.
TIME AIR INC. doing business as
CANADIAN REGIONAL
Per: X Xxxx
--------------------
Per: Xxxxxxxx X Xxxxxxx
--------------------
MIDWAY AIRLINES CORPORATION
Per: X X Xxxxxx
--------------------
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SCHEDULE "A"
Service Order
Pursuant to the Agreement between Time Air Inc. ("Time") and Midway Airlines
Corporation ("Customer") with respect to Maintenance Services to be provided
pursuant to an Aircraft Maintenance Services Agreement made effective the 27 day
of August, 1997, between Time and Customer.
1. Description of Aircraft
Manufacturer: Fokker
Model: F100
Hull Serial Number: __________________
Engine Make and Model: Rolls Xxxxx Xxx
Engine Serial Numbers: _________________ and _________________
2. Time of Delivery and Turn Around Time
Customer will deliver the Aircraft to Time on ____________, 19__.
Time shall use its best efforts but shall not be bound to complete the
Maintenance Services within _______ working days of receipt of the
Aircraft at the Facility or as soon as practicable depending on the extent
of the Services required to be performed by Time.
3. Description of Maintenance Services
4. Special Agreement with Respect to Rates and/or Invoice Procedures (if
any)
Pursuant to Article 4.1(a) of this Agreement, Customer shall pay to Time
an amount equal to $ in United States dollars representing fifty (50%)
percent of the costs to complete (including parts and labour) the routine
work package for an Aircraft prior to Time commencing Services on an
Aircraft.
5. All capitalized terms used in this Service Order will have the same
meanings attributed to them in the Aircraft Maintenance Services
Agreement.
AGREED this ______ day of _______________, 1997
TIME AIR INC. MIDWAY AIRLINES CORPORATION
Per: ____________________________ Per: ______________________________
SCHEDULE "B"
RATES
Customer shall pay to Time:
a) The cost of direct labour used by Time in performing the Maintenance
Services and/or Additional Services at a rate of $40.00USD per man hour,
except NDT time which will be at $40.00USD per man hour;
b) Time's replacement costs for parts and materials provided by Time in
connection with each service rendered excluding shop consumable items
(that is, the invoice price and taxes payable by Time in respect of the
purchase of same) together with a twelve and one half (12.5%) percent
xxxx-up per line item (but in no event more than $2,500.00USD xxxx-up per
line item) and all taxes which Time must pay or withhold by reason of
Customer acquiring title to such parts or materials;
c) Two per cent (2%) of the cost of direct labour referred to in paragraph
(a) above, in payment for shop consumable items utilized and hazardous
materials handling and disposal undertaken to perform the Services;
d) For any agreed upon exchange of rotables and repairables between Time and
Customer, a charge of fifteen (15%) percent of unit value of each such
rotable, plus Time's overhaul and repair charges, to restore such rotable
to serviceable condition and equivalent modification status;
e) The costs of any work performed hereunder by contractors or
subcontractors other than Fokker Services, Inc. retained by Time
pursuant to paragraph 2.8 as billed to Time together with a handling
charge of ten (10%) percent. Transportation expenses shall be charged
at cost;
f) For fuel supplied by Time and not Customer in making tests of the
Services, performed pursuant hereto, a charge shall be levied which is
equivalent to the cost to Time of such fuel (including taxes payable in
respect of the purchase of same by Time) plus ten (10%) percent and in
addition, all tax which Time must pay or withhold by reason of Customer
acquiring title to such fuel;
During the term of this Agreement, should any engineering services of Fokker
Services, Inc. ("Fokker") be used, and if Customer has credit in its existing
Customized Service Package contract with Fokker, then the cost for such
engineering services can be charged to that agreement and will not be charged to
Customer under this Agreement.
SCHEDULE "C"
Service Order
Pursuant to the Agreement between Time Air Inc. ("Time") and Midway Airlines
Corporation ("Customer") with respect to Maintenance Services to be provided
pursuant to an Aircraft Maintenance Services Agreement made effective the 27 day
of August, 1997, between Time and Customer.
1. Description of Aircraft
Manufacturer: Fokker
Model: F100
Hull Serial Number: 11329-N130ML
Engine Make and Model: Rolls Xxxxx Xxx
Engine Serial Numbers: 17667 and 17650
2. Time of Delivery and Turn Around Time
Customer will deliver the Aircraft to Time on September 3, 1997.
Time shall use its best efforts but shall not be bound to complete the
Maintenance Services within 10 working days of receipt of the Aircraft at
the Facility or as soon as practicable depending on the extent of the
Services required to be performed by Time.
3. Description of Maintenance Services
C4 workdeck and modifications provided to Time.
4. Special Agreement with Respect to Rates and/or Invoice Procedures (if
any)
Pursuant to Article 4.1(a) of this Agreement, Customer shall pay to Time
an amount equal to [***] in United States dollars representing fifty
(50%) percent of the costs to complete (including parts and labour) the
routine work package for an Aircraft prior to Time commencing Services on
an Aircraft.
5. All capitalized terms used in this Service Order will have the same
meanings attributed to them in the Aircraft Maintenance Services
Agreement.
AGREED this 27 day of August, 1997
TIME AIR INC MIDWAY AIRLINES CORPORATION
Per: /s/ X Xxxx Per: /s/ X X Xxxxxx
-------------------- -------------------------
Per: Xxxxxxx X Xxxxxxx
--------------------
SCHEDULE "C"
Service Order
Pursuant to the Agreement between Time Air Inc. ("Time") and Midway Airlines
Corporation ("Customer") with respect to Maintenance Services to be provided
pursuant to an Aircraft Maintenance Services Agreement made effective the 27
day of August, 1997, between Time and Customer.
1. Description of Aircraft
Manufacturer: Fokker
Model: F100
Hull Serial Number: 11323-N13lML
Engine Make and Model: Rolls Xxxxx Xxx
Engine Serial Numbers: 17203 and 17291
2. Time of Delivery and Turn Around Time
Customer will deliver the Aircraft to Time on September 13, 1997.
Time shall use its best efforts but shall not be bound to complete the
Maintenance Services within 10 working days of receipt of the Aircraft at
the Facility or as soon as practicable depending on the extent of the
Services required to be performed by Time.
3. Description of Maintenance Services
C4 workdeck and modifications provided to Time.
4. Special Agreement with Respect to Rates and/or Invoice Procedures (if any
Pursuant to Article 4.1(a) of this Agreement, Customer shall pay to Time
an amount equal to [***] in United States dollars representing fifty
(50%) percent of the costs to complete (including parts and labour) the
routine work package for an Aircraft prior to Time commencing Services on
an Aircraft.
5. All capitalized terms used in this Service Order will have the same
meanings attributed to them in the Aircraft Maintenance Services
Agreement.
AGREED this 27 day of August, 1997.
TIME AIR INC. MIDWAY AIRLINES CORPORATION
Per: /s/ X Xxxx Per: /s/ X X Xxxxxx
-------------------- -------------------------
Per: Xxxxxxx X Xxxxxxx
--------------------
