1
Exhibit 10.28
*** Text Omitted and Filed Separately Confidential Treatment Requested
Under 17 C.F.R. Sections 200.80(b)(4), 200.83 and 240.24 b-2.
AMENDMENT NO. 1
TO THE A319/A320 PURCHASE AGREEMENT
dated as of September 12, 1997
between
AVSA, S.A.R.L.
and
AMERICA WEST AIRLINES, INC.
This Amendment No. 1 (hereinafter referred to as the "Amendment") is entered
into as of March 31, 1998, by and between AVSA, S.A.R.L., a societe a
responsabilite limitee organized and existing under the laws of the Republic of
France, having its registered office located at 0, Xxxx Xxxxx Xxxxxxx Xxxxxxxx,
00000 Xxxxxxx, Xxxxxx (hereinafter referred to as the "Seller"), and AMERICA
WEST AIRLINES, INC., a corporation organized and existing under the laws of the
State of Delaware, United States of America, having its principal corporate
offices located at Phoenix Sky Harbor International Airport, 0000 Xxxx Xxx
Xxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000, X.X.X.
(hereinafter referred to as the "Buyer").
WITNESSETH:
WHEREAS, the Buyer and the Seller have entered into an A319/A320 Purchase
Agreement, dated as of September 12, 1997 (which agreement, as previously
amended by and supplemented with all Exhibits, Appendices, Letter Agreements and
amendments attached thereto is hereinafter called the "Agreement"), which
Agreement relates to the sale by the Seller and the purchase by the Buyer of
certain firmly ordered Airbus Industrie A319-100 and A320-200 model aircraft
(the "Aircraft").
WHEREAS, the Buyer and the Seller agree to further describe in this Amendment
certain flexibility rights to be provided by the Seller to the Buyer with
respect to A320 Aircraft.
WHEREAS, capitalized terms used herein and not otherwise defined in this
Amendment will have the meaning assigned to them in the Agreement. The terms
"herein," "hereof," and "hereunder" and words of similar import refer to this
Amendment.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
2
1. SCOPE OF THE AMENDMENT
The Buyer has indicated to the Seller that the Buyer has entered into
ten (10) year operating leases with an operating lessor ("SALE") for
five (5) new production A320 aircraft (MSN 762, 770, 803, 856 and 866),
such lease or leases to begin at a date prior to delivery of the first
A319 Aircraft by the Seller to the Buyer (each such A320 aircraft a
"New Leased A320 Aircraft") under the Agreement. In consideration
thereof and under terms and conditions defined in this Amendment, the
Seller hereby agrees to grant to the Buyer the right to cancel one (1)
A320 Aircraft from its firm order under the Agreement for each New
Leased A320 Aircraft leased by and delivered to the Buyer by SALE prior
to delivery of the first A319 Aircraft (such flexibility right is
referred to as the "A320 Aircraft Cancellation Right").
2. A320 AIRCRAFT CANCELLATION RIGHT
2.1 The A320 Aircraft Cancellation Right shall be limited to five (5) A320
Aircraft. The Buyer hereby irrevocably exercises upon the date hereof
the five A320 Cancellation Rights against each of A320 Aircraft
[...***...] (for delivery pursuant to Clause 9 of the Agreement
respectively in [...***...] these Aircraft are referred to herein as
the "Exchanged Aircraft"). The Buyer hereby irrevocably waives and
releases to the Seller and the Manufacturer its rights to the Exchanged
Aircraft and neither the Seller nor the Buyer shall have any further
obligation or right to the other with respect to the Exchanged
Aircraft. The Buyer grants the Seller and the Manufacturer the
unlimited right to remarket these delivery positions upon the date
hereof.
2.2 Except as otherwise agreed, the specification of the New Leased A320
Aircraft will be the specification defined by SALE and the Manufacturer
in the SALE purchase agreement, and the Seller or the Manufacturer
shall not incur any extra cost or liability in order to bring the
specification of the New Leased A320 Aircraft to the level of the
Specification or to another specification desired by the Buyer.
2.3 The parties hereby agree that the terms and conditions applicable to
the sale by the Seller or the Manufacturer and the purchase by SALE of
the New Leased A320 Aircraft shall be solely negotiated between the
Seller or the Manufacturer and SALE and that the terms of the Agreement
shall not in any manner apply to the New Leased A320 Aircraft, except
* Confidential Treatment Requested
3
that (i) all of the warranties and guarantees set forth in Clauses 12,
13, and 17 of the Agreement and in Letter Agreement N. 6 (limited,
however, to the provisions contained in Paragraphs 1, 2 and 3 only),
Letter Agreement N. 7, Letter Agreement N. 8, Letter Agreement N. 9 and
Letter Agreement N. 10 of the Agreement (the "Exchange Provisions")
shall apply to the New Leased A320 Aircraft as if they were A320
Aircraft and shall be in lieu of the warranties and guarantees set out
in the New Leased A320 Aircraft purchase agreement, such Exchange
Provisions to apply during the operation by the Buyer of these New
Leased A320 Aircraft on the same terms as if the New Leased A320
Aircraft were A320 Aircraft and (ii) all of the provisions relating to
assignment included in the Agreement shall apply to the Exchange
Provisions.
The Buyer shall be responsible for negotiating any lease terms and
conditions applicable to the New Leased A320 Aircraft directly with
SALE and the Seller or the Manufacturer shall have no obligation or
liability relating thereto except as otherwise agreed. Nothing
contained in this Amendment shall subject the Seller or the
Manufacturer to any liability it would not have otherwise incurred had
the A320 Aircraft Cancellation Right not been available to the Buyer
except as otherwise agreed.
The parties also agree that the Buyer shall not be entitled to any
duplicate remedies from the Seller under the warranties and guarantees
provisions of (i) the Agreement, as amended by this Amendment and (ii)
any other purchase or lease agreement involving the Buyer, the
Manufacturer or SALE.
3. [...***...]
In consideration for the execution of the Amendment, the Seller agrees
to provide upon the date hereof the Buyer with a [...***...].
4. EFFECT OF AMENDMENT
The Agreement will be deemed amended to the extent herein provided,
and, except as specifically amended hereby, will continue in full force
and effect in accordance with its original terms.
5. CONFIDENTIALITY
* Confidential Treatment Requested
4
Subject to any legal or governmental requirements of disclosure, the
parties (which for this purpose will include their employees, agents,
advisors and accountants) will maintain the terms and conditions of
this Amendment and any reports or other data furnished hereunder
strictly confidential. Without limiting the generality of the
foregoing, the Buyer will use its best efforts to limit the disclosure
of the contents of this Amendment to the extent legally permissible in
any filing required to be made by the Buyer with any governmental
agency and will make such applications as will be necessary to
implement the foregoing. With respect to any public disclosure or
filing, the Buyer agrees to submit to the Seller a copy of the proposed
document to be filed or disclosed and will give the Seller a reasonable
period of time in which to review the document. The Buyer and the
Seller will consult with each other prior to the making of any other
public disclosure or filing, permitted hereunder, of this Amendment or
the terms and conditions thereof. The provisions of this Paragraph 5
will survive any termination of the Agreement.
5
If the foregoing correctly sets forth our understanding, please
indicate your acceptance by signing in the space provided below.
Agreed an Accepted, Agreed and Accepted,
AMERICA WEST AIRLINES, INC. AVSA, S.A.R.L.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ illegible
---------------------------- -------------------------------
Its: Vice President & Treasurer Its: Director Contracts
---------------------------- -------------------------------
Date: April 27, 1998 Date: April 27, 1998
---------------------------- -------------------------------
