1947K/WPAWestern Pacific Airline (CONFIDENTIALITY REQUESTED)
CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURSUANT TO RULE 24B-21 AS
INDICATED BY "(XXX)"
PURCHASE AGREEMENT
between
THE BOEING COMPANY
and
WESTERN PACIFIC AIRLINES, INC.
Relating to Boeing Model 737-300 Aircraft
Purchase Agreement Number 1947
P.A. 1947
K/WPA
TABLE OF CONTENTS
Page SA
Number Number
TABLE OF CONTENTS
Page SA
Number Number
ARTICLES
1. Subject Matter of Sale.........................................1-1 SA-1
2. Xxxxxxxx, Title and Risk
of Loss........................................................2-1 SA-1
3. Price of Aircraft..............................................3-1 SA-1
4. Taxes..........................................................4-1
5. Payment........................................................5-1
6. Excusable Delay................................................6-1
7. Changes to the Detail
Specification..................................................7-1
8. Federal Aviation Requirements and
Certificates and Export License................................8-1
9. Representatives, Inspection,
Flights and Test Data..........................................9-1
10. Assignment, Resale or Lease...................................10-1
11. Termination for Certain Events................................11-1
12. Product Assurance; Disclaimer and
Release; Exclusion of Liabilities;
Customer Support; Indemnification
and Insurance.................................................12-1
13. Buyer Furnished Equipment and
Spare Parts...................................................13-1
14. Contractual Notices and Requests..............................14-1
15. Miscellaneous.................................................15-1
P.A. 1947 i
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TABLE OF CONTENTS
SA
Number
EXHIBITS
A Aircraft Configuration.............................................
B Product Assurance Document.........................................
C Customer Support Document..........................................
D Price Adjustments Due to
Economic Fluctuations -
Airframe and Engines...............................................
E Buyer Furnished Equipment
Provisions Document................................................
F Defined Terms Document.............................................
LETTER AGREEMENTS
1947-1 Disclosure of Confidential
Information........................................................
1947-2 Waiver of Aircraft Demonstration
Flights............................................................
1947-3 Seller Purchased Equipment.........................................
1947-4 Spare Parts Support for Flight
Training...........................................................
P.A. 1947 ii
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TABLE OF CONTENTS
SA
Number
RESTRICTED LETTER AGREEMENTS
6-1162-JDR-393 Aircraft Performance Guarantees.............................
6-1162-JDR-394 Certain Contractual Matters.................................
6-1162-JDR-395 Advance Payment Matters....................................SA-1
6-1162-JDR-396 Escalation Matters..........................................
6-1162-JDR-397 Promotion Support...........................................
6-1162-JDR-398 Customer Support Matters...................................SA-1
6-1162-JDR-399 Configuration Matters......................................SA-1
6-1162-JDR-400 Miscellaneous Matters.......................................
6-1162-JDR-401 Product Assurance Matters...................................
6-1162-JDR-418 Board of Directors Approval.................................
P.A. 1947 iii
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PURCHASE AGREEMENT NO. 1947
Relating to
BOEING MODEL 737-300 AIRCRAFT
This Agreement is entered into as of August 21, 1996 by and between
The Boeing Company, a Delaware corporation, with its principal office in
Seattle, Washington (Boeing), and Western Pacific Airlines, Inc. a Delaware
corporation, with its principal office in Colorado Springs, Colorado (Buyer).
Accordingly, Boeing and Buyer agree as follows:
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ARTICLE 1. Subject Matter of Sale.
1.1 The Aircraft. Boeing will manufacture and deliver to Buyer and
Buyer will purchase and accept delivery from Boeing of six (6) Boeing Model
737-300 aircraft (the Aircraft) manufactured in accordance with Boeing detail
specification D6-38604-28 dated as of even date herewith, as described in
Exhibit A, as modified from time to time in accordance with this Agreement
(Detail Specification).
1.2 Additional Goods and Services. In connection with the sale of
the Aircraft, Boeing will also provide to Buyer certain other things under this
Agreement, including data, documents, training and services, all as described in
this Agreement.
1.3 Performance Guarantees. Any performance guarantees applicable
to the Aircraft will be expressly included in this Agreement. Where performance
guarantees are included in this Agreement other than within the Detail
Specification, such guarantees will be treated as being incorporated in the
Detail Specification by this reference.
1.4 Defined Terms. For ease of use, certain terms are treated as
defined terms in this Agreement. Such terms are identified with a capital letter
and set forth and/or defined in Exhibit F.
P.A. 1947 1-1 SA-1
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ARTICLE 2. Delivery, Title and Risk of Loss.
2.1 Time of Delivery. The Aircraft will be delivered to Buyer by
Boeing, and Buyer will accept delivery of the Aircraft, in accordance with the
following schedule:
Month and Year
of Delivery Quantity of Aircraft
-------------- --------------------
May 1997 Two (2)
June 1997 Two (2)
November 1997 One (1)
December 1997 One (1)
2.2 Notice of Target Delivery Date. Boeing will give Buyer notice
of the Target Delivery Date of the Aircraft approximately 30 days prior to the
scheduled month of delivery.
2.3 Notice of Delivery Date. Boeing will give Buyer at least 7 days
notice of the delivery date of the Aircraft. If an Aircraft delivery is delayed
beyond such delivery date due to the responsibility of Buyer, Buyer will
reimburse Boeing for all costs incurred by Boeing as a result of such delay,
including amounts for storage, insurance, Taxes, preservation or protection of
the Aircraft and interest on payments due.
2.4 Place of Delivery. The Aircraft will be delivered at a facility
selected by Boeing in the State of Washington, unless mutually agreed otherwise.
2.5 Title and Risk of Loss. Title to and risk of loss of an
Aircraft will pass from Boeing to Buyer upon delivery of such Aircraft, but not
prior thereto.
2.6 Bill of Sale. Upon delivery of an Aircraft Boeing will deliver
to Buyer a bill of sale conveying good title to such Aircraft, free of any
encumbrances.
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ARTICLE 3. Price of Aircraft.
3.1 Definitions.
3.1.1 Special Features are the features incorporated in Exhibit A
which have been selected by Buyer.
3.1.2 Base Airframe Price is the Aircraft Basic Price excluding the
price of Special Features and Engines.
3.1.3 Engine Price is the price set forth below and in Exhibit D
established by the Engine manufacturer for the Engines installed on the Aircraft
including all accessories, equipment and parts.
3.1.4 Aircraft Basic Price is comprised of the Base Airframe Price,
the Engine Price and the price of the Special Features.
3.1.5 Economic Price Adjustment is the adjustment to the Aircraft
Basic Price (Base Airframe, Engine and Special Features) as calculated pursuant
to Exhibit D.
3.2 Aircraft Basic Price.
The Aircraft Basic Price, expressed in July 1995 dollars, is set
forth below:
Base Airframe Price: [XXXXXXXXX]
Special Features [XXXXXXXXX]
Engine Price [XXXXXXXXX]
Aircraft Basic Price [XXXXXXXXX]
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3.3 Aircraft Price. The Aircraft Price will be established at the
time of delivery of such Aircraft to Buyer and will be the sum of:
3.3.1 the Aircraft Basic Price, which is [XXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX];
plus
3.3.2 the Economic Price Adjustments for the Aircraft Basic Price,
as calculated pursuant to the formulas set forth in Exhibit D (Price Adjustments
Due to Economic Fluctuations - Airframe and Engine); plus
3.3.3 other price adjustments made pursuant to this Agreement or
other written agreements executed by Boeing and Buyer.
3.4 Advance Payment Base Price.
3.4.1 Advance Payment Base Price. For advance payment purposes, the
following estimated delivery prices of the Aircraft have been established, using
currently available forecasts of the escalation factors used by Boeing as of the
date of signing this Agreement. The Advance Payment Base Price of each Aircraft
is set forth below:
Month and Year of Advance Payment Base
Scheduled Delivery Price per Aircraft
------------------ --------------------
May 1997 [XXXXXXXXX]
June 1997 [XXXXXXXXX]
November 1997 [XXXXXXXXX]
December 1997 [XXXXXXXXX]
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ARTICLE 4. Taxes.
4.1 Taxes. Xxxxx will pay all Taxes imposed by any domestic or
foreign taxing authority arising out of or in connection with this Agreement or
performance pursuant to it. In this Agreement, "Taxes" are defined as all taxes,
fees, charges or duties and any interest, penalties, fines, or other additions
to tax, including, but not limited to, sales, use, value added, gross receipts,
stamp, excise, transfer and similar taxes, except U.S. federal income taxes and
Washington State business and occupation tax imposed on Boeing.
4.2 Taxes Relating to Buyer Furnished Equipment. Xxxxx is
responsible for the proper filing of all tax returns, reports and declarations
and payment of all taxes related to or imposed on Buyer Furnished Equipment.
4.3 Reimbursement of Boeing. Buyer will promptly reimburse Boeing
on demand, net of additional taxes thereon, for any Taxes that are imposed on
and paid by Boeing or for which Boeing is responsible for collecting.
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ARTICLE 5. Payment.
5.1 Advance Payment Schedule. Advance payment for each Aircraft
will be made to Boeing by Buyer as follows:
Due Date of Payment Amount Due per Aircraft
------------------ -----------------------
(Percentage times
Advance Payment Base Price)
Upon signing the Agreement 1% (less the
Deposit)
24 months prior to the first 4%
day of the scheduled delivery
month of such Aircraft
21 months prior to the first 5%
day of the scheduled delivery
month of such Aircraft
18 months prior to the first 5%
day of the scheduled delivery
month of such Aircraft
12 months prior to the first 5%
day of the scheduled delivery
month of such Aircraft
9 months prior to the first 5%
day of the scheduled delivery
month of such Aircraft
6 months prior to the first 5%
day of the scheduled delivery
month of such Aircraft
----
Total 30%
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5.2 Payment at Delivery. The Aircraft Price, less Advance Payments
received by Boeing, is due on delivery of such Aircraft to Buyer.
5.3 Form of Payments. All payments due under this Article 5 will be
made by Buyer to Boeing by unconditional deposit in a bank account in the United
States designated by Boeing or in other immediately available funds. All prices
and payments set forth in this Agreement are in United States Dollars.
5.4 Monetary and Government Regulations. Xxxxx will be responsible
for complying with all monetary control regulations and for obtaining necessary
governmental authorizations related to payments hereunder.
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ARTICLE 6. Excusable Delay.
6.1 General. Boeing will not be liable for or be deemed to be in
default under this Agreement on account of any delay in delivery of any Aircraft
or other performance hereunder arising out of causes such as: acts of God; war,
armed hostilities, riots, fires, floods, earthquakes or serious accidents;
governmental acts or failures to act affecting materials, facilities or
Aircraft; strikes or labor troubles causing cessation, slowdown or interruption
of work; damage to an Aircraft; failure of or delay in transportation; or
inability, after due and timely diligence, to procure materials, systems,
accessories, equipment or parts; or arising out of any other cause to the extent
it is beyond Boeing's control or not occasioned by Boeing's fault or negligence.
A delay resulting from such causes is referred to as an "Excusable Delay".
6.2 Excusable Delay of 12 Months.
6.2.1 Anticipated Delay. If Boeing concludes, based on its
appraisal of the facts and normal scheduling procedures, that due to an
Excusable Delay, delivery of an Aircraft will be delayed more than 12 months
beyond the month in which delivery is scheduled, Boeing will promptly so notify
Buyer in writing and either party may then terminate this Agreement with respect
to such Aircraft by giving written notice to the other within 15 days after
receipt by Buyer of Boeing's notice. Failure of a party to terminate the
purchase of an Aircraft for an Excusable Delay pursuant to this paragraph
results in a waiver of that party's right to terminate the purchase of such
Aircraft for any delay in delivery caused by such Excusable Delay.
6.2.2 Actual Delay. If, due to an Excusable Delay, delivery of an
Aircraft is delayed for more than 12 months beyond the month in which delivery
is scheduled, and such right to terminate has not been waived under paragraph
6.2.1, either party may terminate this Agreement with respect to such Aircraft
by giving written notice to the other within 15 days after the expiration of
such 12-month period.
6.3 Aircraft Damaged Beyond Repair. If, prior to delivery, an
Aircraft is destroyed or damaged beyond economic repair due to any cause, Boeing
will promptly notify Buyer in writing and either party may then terminate this
Agreement with respect to such Aircraft. If Boeing does not so terminate this
Agreement with respect to such Aircraft, such notice will specify the earliest
date
P.A. 1947 6-1
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reasonably possible, consistent with Boeing's other contractual commitments and
production capabilities, by which Boeing will deliver a replacement for such
Aircraft. This Agreement will thereupon terminate as to such Aircraft, unless
Buyer gives Boeing written notice, within 30 days after receipt of Boeing's
notice, that Buyer desires the proposed replacement for such Aircraft.
6.4 Agreement Revision. If an Aircraft is delayed, or destroyed or
damaged beyond economic repair, and this Agreement is not terminated pursuant to
this Article, this Agreement will be appropriately revised.
6.5 Agreement Termination.
6.5.1 Termination under this Article will discharge all obligations
and liabilities of Boeing and Buyer hereunder with respect to terminated
Aircraft and all related undelivered items and services, except that Boeing will
return to Buyer, without interest, all advance payments related to such
Aircraft,
6.5.2 If either party terminates this Agreement as to any Aircraft
pursuant to this Article, Boeing may, upon written notice to Buyer within 30
days after such termination, purchase from Buyer any Buyer Furnished Equipment
related to such Aircraft, at the invoice prices paid, or contracted to be paid,
by Buyer.
6.6 Exclusive Rights. The termination rights set forth in this
Article are in substitution for any and all other rights of termination or
contract lapse or any other claim arising by operation of law by virtue of
delays in performance covered by this Article.
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ARTICLE 7. Changes to the Detail Specification.
7.1 Development Changes. Boeing may, at its own expense and without
Buyer's consent, incorporate Development Changes in the Detail Specification and
the Aircraft prior to delivery to Buyer. Development Changes are defined as
changes to the basic specification for Model 737-300 aircraft that do not affect
the Aircraft Purchase Price or adversely affect Aircraft delivery, guaranteed
weight, guaranteed performance or compliance with the interchangeability or
replaceability requirements set forth in the Detail Specification. If Boeing
makes changes pursuant to this paragraph, Boeing will promptly notify Buyer of
such changes.
7.2 Change Orders. The Detail Specification and associated
provisions of this Agreement may be amended by mutual agreement by Change Order
or other written agreement executed by the parties, which will state the
particular changes to be made and any effect on design, performance, weight,
balance, time of delivery, Aircraft Basic Price and Advance Payment Base Price.
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ARTICLE 8. Federal Aviation Requirements and
Certificates.
8.1 FAA Certificates.
8.1.1 Boeing will obtain from the Federal Aviation Administration
(FAA):
8.1.1.1 a Type Certificate (transport category) issued pursuant to
Part 21 of the Federal Aviation Regulations for the type of aircraft covered by
this Agreement, and
8.1.1.2 a Standard Airworthiness Certificate for each Aircraft
issued pursuant to Part 21 of the Federal Aviation Regulations, which will be
provided to Buyer with delivery of the Aircraft.
8.1.2 Boeing will not be obligated to obtain any other certificates
or approvals for the Aircraft.
8.1.3 If the use of either FAA certificate is discontinued prior to
delivery of an Aircraft, references in this Agreement to such discontinued
certificate will be deemed references to its superseding FAA certificate. If the
FAA does not issue a superseding certificate, Boeing's only obligation under
this paragraph will be to comply with the Detail Specification.
8.2 FAA Manufacturer Changes.
8.2.1 If the FAA, or any other governmental agency having
jurisdiction, requires any change to the Aircraft, data relating to the
Aircraft, or testing of the Aircraft in order to obtain the Standard
Airworthiness Certificate (Manufacturer Change), such Manufacturer Change will
be made prior to delivery of such Aircraft.
8.2.2 If prior to Aircraft delivery a Manufacturer Change is
required to be incorporated in an Aircraft, it will be incorporated at no charge
to Buyer, unless the requirement is promulgated subsequent to the date of this
Agreement, in which case Buyer will pay Boeing's
P.A. 1947 8-1
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charge only for Aircraft scheduled for delivery to Buyer 18 months or more after
the date of this Agreement.
8.3 FAA Operator Changes.
8.3.1 Boeing will deliver each Aircraft with the changes in
equipment incorporated (or, at Boeing's sole discretion, with suitable
provisions for the incorporation of such equipment) that is required by Federal
Aviation Regulations which (i) are generally applicable with respect to
transport category aircraft to be used in United States certified air carriage
and (ii) have to be complied with on or before the date of delivery of such
Aircraft (Operator Changes).
8.3.2 If Operator Changes are incorporated in an Aircraft, Buyer
will pay Boeing's charge applicable to such Aircraft.
8.4 Delays; Changes to this Agreement. If delivery of an Aircraft
is delayed due to the incorporation of a Manufacturer Change or an Operator
Change, the delivery of the Aircraft will be appropriately revised to reflect
such delay. This Agreement will also be revised to reflect appropriate changes
in the Aircraft Price, design, performance, weight and balance due to the
incorporation of a Manufacturer Change or an Operator Change.
P.A. 1947 8-2
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ARTICLE 9. Representatives, Inspection,
Flights and Test Data.
9.1 Office Space at Boeing. From a date 12 months prior to delivery
of the first Aircraft, and until the delivery of the last Aircraft, Boeing will
furnish, without additional charge, suitable office space and equipment in or
conveniently located near its plant in Seattle for the accommodation of up to
three (3) personnel of Buyer.
9.2 Inspection by Buyer. Designated representatives of Buyer may
inspect the manufacturing of the Aircraft at all reasonable times. However, if
access to any part of Boeing's plant is restricted by the United States
Government, Boeing will be allowed a reasonable time to arrange for inspection
elsewhere. All inspections by Xxxxx's representatives will be performed so as
not to hinder manufacture or performance by Boeing.
9.3 Aircraft Flight. Prior to delivery, each Aircraft will be flown
by Boeing for such periods as may be required to demonstrate to Buyer the
function of the Aircraft and its equipment in accordance with Boeing's
production flight test procedures. The aggregate duration of such flights will
be not less than 1-1/2 hours or more than 4 hours. Five persons designated by
Buyer may participate in such flights as observers.
9.4 Test Data. Boeing will furnish to Buyer, as soon as
practicable, flight test data obtained on an aircraft of the type purchased
hereunder, certified as correct by Boeing, to evidence compliance with any
performance guarantees set forth in this Agreement. Any Performance Guarantee
will be deemed to be met if reasonable engineering interpretations and
calculations based on such flight test data establish that the Aircraft would,
if actually flown, comply with such guarantee.
9.5 Special Aircraft Test Requirements. Boeing may use the Aircraft
for flight and ground tests prior to delivery to Buyer, without reduction in the
Aircraft Purchase Price, if such tests are deemed necessary by Boeing to:
9.5.1 obtain or maintain the Type Certificate or Standard
Airworthiness Certificate for the Aircraft; or
9.5.2 evaluate aircraft improvement changes that may be offered for
production or retrofit incorporation in any aircraft.
P.A. 1947 9-1
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9.6 Indemnity. Boeing will indemnify and hold harmless Buyer and
Xxxxx's observers from and against all claims and liabilities, including costs
and expenses (including attorneys' fees) incident thereto, for injury to or
death of any person or persons, including employees of Boeing but excluding
employees, officers or agents of Buyer, or for loss of or damage to any
property, arising out of or in connection with the operation of the Aircraft
during all demonstration and test flights conducted under the provisions of this
Article, whether or not arising in tort or occasioned in whole or in part by the
negligence of Buyer or any of Buyer's observers, whether active, passive or
imputed.
P.A. 1947 9-2
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ARTICLE 10. Assignment, Resale or Lease.
10.1 Assignment. This Agreement will inure to the benefit of and be
binding upon each of the parties hereto and their respective successors and
assigns. Neither the rights nor the duties of either party under this Agreement
may be assigned or delegated, or contracted to be assigned or delegated, in
whole or part, without the prior written consent of the other party, except
that:
10.1.1 Either party may assign its interest to a corporation that
(i) results from any merger or reorganization of such party or (ii) acquires
substantially all the assets of such party;
10.1.2 Boeing may assign its rights to receive money; and
10.1.3 Boeing may assign all or any part of its rights and
obligations under this Agreement to any wholly owned subsidiary of Boeing,
provided that Boeing will remain fully and solely responsible to Buyer for all
obligations and liabilities as the seller of the Aircraft, and Buyer will
continue to deal exclusively with Boeing.
10.2 Transfer by Buyer at Delivery. Buyer may, and at Xxxxx's
request Boeing will, take any action reasonably required for the purpose of
causing an Aircraft, at time of delivery, to be subjected to an equipment trust,
conditional sale, lien or other arrangement for the financing by Buyer of such
Aircraft. No action taken by either party pursuant to this paragraph, however,
will require Boeing to divest itself of title to or possession of such Aircraft
until delivery and payment therefor pursuant to this Agreement.
10.3 Sale by Buyer After Delivery. If, following delivery of any
Aircraft, Buyer sells such Aircraft (including any sale for financing purposes),
then all of Buyer's rights with respect to such Aircraft under this Agreement
will inure to the benefit of the purchaser of such Aircraft, effective upon
Boeing's receipt of such purchaser's express written agreement, in form
satisfactory to Boeing, to be bound by and to comply with all applicable terms,
conditions and limitations of this Agreement.
10.4 Lease by Buyer After Delivery. If, following delivery of any
Aircraft, Buyer leases such Aircraft, Buyer will not assign to the lessee of
such Aircraft any rights under this Agreement without Boeing's prior written
consent, which consent will not be unreasonably withheld.
P.A. 1947 10-1
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10.5 No Increase in Boeing Liability. No action taken by Buyer or
Boeing relating to the assignment, resale or lease of any Aircraft or this
Agreement will subject Boeing to any liability beyond that in this Agreement or
modify in any way Boeing's obligations under this Agreement.
10.6 Exculpatory or Indemnity Clause in Post-Delivery Sale or
Lease. If, following delivery of an Aircraft, Buyer sells or leases such
Aircraft and obtains from the transferee an exculpatory or indemnity clause
protecting Buyer, Buyer will include the same protection for Boeing.
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ARTICLE 11. Termination for Certain Events.
11.1 Termination. This Agreement may be terminated at any time with
regard to undelivered Aircraft and items and unperformed services by notice in
writing by either party hereto if the other party:
11.1.1 Ceases doing business as a going concern, suspends all or
substantially all its business operations, makes an assignment for the benefit
of creditors, is insolvent, or generally does not pay its debts, or admits in
writing its inability to pay its debts; or
11.1.2 Petitions for or acquiesces in the appointment of any
receiver, trustee or similar officer to liquidate or conserve its business or
any substantial part of its assets; commences any legal proceeding such as
insolvency, bankruptcy, reorganization, readjustment of debt, dissolution or
liquidation available for the relief of financially distressed debtors; or
becomes the object of any such proceeding, unless such proceeding is dismissed
or stayed within a reasonable period, not to exceed 60 days.
11.2 Repayment of Advance Payments. If this Agreement is terminated
with regard to any Aircraft by Buyer under this Article, Boeing will repay to
Buyer, without interest, any advance payments received by Boeing from Buyer with
respect to such Aircraft.
P.A. 1947 11-1
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ARTICLE 12. Product Assurance; Disclaimer and Release;
Exclusion of Liabilities; Customer Support;
Indemnification and Insurance.
12.1 Product Assurance. Boeing and Buyer are bound by the
provisions of Exhibit B hereto (Product Assurance Document).
12.2 DISCLAIMER AND RELEASE. THE WARRANTIES, OBLIGATIONS AND
LIABILITIES OF BOEING AND THE REMEDIES OF BUYER SET FORTH IN THE PRODUCT
ASSURANCE DOCUMENT ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND BUYER HEREBY
WAIVES, RELEASES AND RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND
LIABILITIES OF BOEING AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF BUYER AGAINST
BOEING, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY
NONCONFORMANCE OR DEFECT IN ANY AIRCRAFT OR OTHER THING PROVIDED UNDER THIS
AGREEMENT, INCLUDING, BUT NOT LIMITED TO:
(A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS;
(B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY
IN TORT, WHETHER OR NOT ARISING FROM THE
NEGLIGENCE OF BOEING (WHETHER ACTIVE, PASSIVE OR
IMPUTED); AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY
FOR LOSS OF OR DAMAGE TO ANY AIRCRAFT.
12.3 EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES. BOEING WILL HAVE
NO OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY),
TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE) OR OTHERWISE, FOR LOSS OF
USE, REVENUE OR PROFIT, OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES
WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN ANY AIRCRAFT OR OTHER THING
PROVIDED UNDER THIS AGREEMENT.
12.4 Definitions. For the purposes of this Article, the term
"BOEING" means The Boeing Company, its divisions, subsidiaries and affiliates,
the assignees of each, and their directors, officers, employees and agents.
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12.5 Customer Support and Indemnification; Insurance. Boeing and
Buyer are bound by the provisions of Exhibit C hereto (Customer Support
Document), which includes indemnification and insurance requirements related to
the use of Customer Support Services.
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ARTICLE 13. Buyer Furnished Equipment and Spare Parts.
13.1 Buyer Furnished Equipment. Boeing and Buyer are bound by the
provisions of Exhibit E (Buyer Furnished Equipment Document), which includes
indemnification requirements related to Buyer Furnished Equipment.
13.2 Purchase of Boeing Spare Parts. Boeing will sell to Buyer and
Buyer will purchase from Boeing materials, spare parts, assemblies, tools and
items of equipment relating to the Aircraft pursuant to Customer Services
General Terms Agreement No. 3R, when executed.
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ARTICLE 14. Contractual Notices and Requests.
All notices and requests relating to this Agreement will be in
English, and may be transmitted by any customary means of written communication
addressed as follows:
Buyer: Western Pacific Airlines, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attention: President
Boeing: Boeing Commercial Airplane Group
P.O. Box 3707
Seattle, Washington 98124-2207
U.S.A.
Attention: Vice President -
Contracts
Mail Stop 75-38
or to such other address as specified elsewhere herein or as otherwise directed
in writing by either party. The effective date of any such notice or request
will be the date on which it is received by the addressee.
P.A. 1947 14-1
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ARTICLE 15. Miscellaneous.
15.1 Government Approval. Boeing and Buyer will use their best
reasonable efforts to assist each other in obtaining any United States
Governmental agency consents or approvals necessary or appropriate to effect
certification and sale of the Aircraft under this Agreement.
15.2 Headings. Article and paragraph headings used in this
Agreement are for convenient reference only and are not intended to affect the
interpretation of this Agreement.
15.3 Entire Agreement; Amendments. This Agreement contains the
entire agreement between the parties concerning the subject matter hereof and
supersedes all previous proposals, understandings, commitments or
representations whatsoever, oral or written. This Agreement may be changed only
in writing signed by authorized representatives of Boeing and Buyer, except in
the case of certain changes permitted or required by this Agreement.
15.4 GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY THE LAW OF
THE STATE OF WASHINGTON, U.S.A., EXCLUSIVE OF WASHINGTON'S CONFLICTS OF LAWS
RULES.
15.5 Severability. If any of the provisions of this Agreement be
held unlawful or otherwise ineffective by a court of competent jurisdiction, the
remainder of the Agreement will remain in full force.
P.A. 1947 15-1
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15.6 Negotiated Agreement. This Agreement, including the provisions
of Article 12 relating to DISCLAIMER AND RELEASE, the Exclusion of Consequential
and Other Damages, and the provisions relating to indemnification and insurance
set forth in this Agreement, has been the subject of discussion and negotiation
and is fully understood by the parties; the Aircraft Purchase Price and other
agreements of the parties set forth in this Agreement were arrived at in
consideration of such provisions.
*************************
WESTERN PACIFIC AIRLINES, INC. THE BOEING COMPANY
By By
--------------------------- --------------------------
Its Its
--------------------------- --------------------------
P.A. 1947 15-2
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