EXHIBIT A
to
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-HWI
between
THE BOEING COMPANY
and
Hawaiian Airlines, Inc.
BUYER FURNISHED equipment provisions document
BUYER FURNISHED EQUIPMENT PROVISIONS DOCUMENT
1. General.
Certain equipment to be installed in the Aircraft is furnished to Boeing
by Customer at Customer's expense. This equipment is designated "Buyer Furnished
Equipment" (BFE) and is listed in the Detail Specification. Boeing will provide
to Customer a BFE Requirements On-Dock/Inventory Document (BFE Document) or an
electronically transmitted BFE Report which may be periodically revised, setting
forth the items, quantities, on-dock dates and shipping instructions relating to
the in sequence installation of BFE as described in the applicable Supplemental
Exhibit to this Exhibit A in a purchase agreement at the time of aircraft
purchase.
2. Supplier Selection.
Customer will:
2.1 Select and notify Boeing of the suppliers of BFE items by those dates
appearing in Supplemental Exhibit BFE1to the applicable purchase agreement at
the time of aircraft purchase.
2.2 Meet with Boeing and such selected BFE suppliers promptly after such
selection to:
2.2.1 complete BFE configuration design requirements for such
BFE; and
2.2.2 confirm technical data submittal requirements for BFE
certification.
3. Customer's Obligations.
Customer will:
3.1 comply with and cause the supplier to comply with the provisions of
the BFE Document or BFE Report;
3.1.1 deliver technical data (in English) to Boeing as required to
support installation and FAA certification in accordance with the schedule
provided by Boeing or as mutually agreed upon during the BFE meeting referenced
in Article 2.2 above;
3.1.2 deliver BFE including production and/or flight training spares
and BFE Aircraft Software to Boeing in accordance with the quantities and
schedule provided
A-1
therein or as mutually agreed during the BFE meeting referenced in Article
2.2 above; and
3.1.3 assure that all BFE Aircraft Software is delivered in
compliance with Boeing's then-current Standards for Loadable Systems;
3.1.4 assure that all BFE parts are delivered to Boeing with
appropriate quality assurance documentation;
3.2 authorize Boeing to discuss all details of the BFE directly with the
BFE suppliers________________________________;
3.3 authorize Boeing to conduct or delegate to the supplier quality source
inspection and supplier hardware acceptance of BFE at the supplier location;
3.3.1 require supplier's contractual compliance to Boeing defined
quality assurance requirements, source inspection programs and supplier
delegation programs, including availability of adequate facilities for Boeing
resident personnel; and
3.3.2 assure that all BFE supplier's quality systems are approved to
Boeing's then current standards for such systems ;
3.4 obtain from supplier a non-exclusive, perpetual, royalty-free,
irrevocable license for Boeing to copy BFE Aircraft Software. The license is
needed to enable Boeing to load the software copies in (i) the aircraft's mass
storage device (MSD), (ii) media (e.g., diskettes, CD-ROMs, etc.), (iii) the BFE
hardware and/or (iv) an intermediate device or other media to facilitate copying
of the BFE Aircraft Software into the aircraft's MSD, BFE hardware and/or media,
including media as Boeing may deliver to Customer with the aircraft;
3.5 grant Boeing a license, extending the same rights set forth in
paragraph 3.4 above, to copy: a) BFE Aircraft Software and data Customer has
modified and/or b) other software and data Customer has added to the BFE
Aircraft Software;
3.6 provide necessary field service representation,
______________________, at Boeing's facilities to support Boeing on all issues
related to the installation and certification of BFE;
3.7 deal directly with all BFE suppliers to obtain overhaul data,
provisioning data, related product support documentation and any warranty
provisions applicable to the BFE;
A-2
3.8 work closely with Boeing and the BFE suppliers to resolve any
difficulties, including defective equipment, that arise;
3.9 be responsible for modifying, adjusting and/or calibrating BFE as
required for FAA approval and for all reasonable related expenses;
3.10 assure that a proprietary information agreement is in place between
Boeing and BFE suppliers prior to Boeing providing any documentation to such
suppliers;
3.11 warrant that the BFE will comply with all applicable FARs and the
U.S. Food and Drug Administration (FDA) sanitation requirements for installation
and use in the Aircraft at the time of delivery. Customer will be responsible
for supplying any data and adjusting, calibrating, re-testing or updating such
BFE and data to the extent necessary to obtain applicable FAA and FDA approval
and shall bear the resulting expenses;
3.12 warrant that the BFE will meet the requirements of the Detail
Specification; and
3.13 be responsible for providing equipment which is FAA certifiable at
time of Aircraft delivery, or for obtaining waivers from the applicable
regulatory agency for non-FAA certifiable equipment.
4. Boeing's Obligations.
Other than as set forth below, Boeing will provide for the installation of
and install the BFE and obtain certification of the Aircraft with the BFE
installed.
5. Nonperformance by Customer.
If Customer's nonperformance of obligations in this Exhibit or in the BFE
Document causes a delay in the delivery of the Aircraft or causes Boeing to
perform out-of-sequence or additional work, Customer will reimburse Boeing for
all resulting reasonable expenses and be deemed to have agreed to any such delay
in Aircraft delivery. In addition Boeing will have the right to:
5.1 provide and install specified equipment or suitable alternate
equipment subject to agreement from Customer, and increase the price of the
Aircraft accordingly; and/or
5.2 deliver the Aircraft to Customer without the BFE installed.
A-3
6. Return of Equipment.
BFE not installed in the Aircraft will be returned to Customer in
accordance with Customer's instructions and at Customer's expense______________.
7. Title and Risk of Loss.
7.1 With respect to Aircraft manufactured in the State of Washington,
title to and risk of loss of BFE provided for such Aircraft will at all times
remain with Customer or other owner. Boeing will have only such liability for
BFE as a bailee for mutual benefit would have, but will not be liable for loss
of use.
7.2 With respect to Aircraft manufactured in the State of California,
Customer agrees to sell and Boeing agrees to purchase each item of BFE
concurrently with its delivery to Boeing. A reasonable shipset price for the BFE
shall be established with Customer. Customer and Boeing agree that the Aircraft
Price will be increased by the amount of said shipset price and such amount will
be included on Boeing's invoice at time of Aircraft delivery. Boeing's payment
for the purchase of each shipset of BFE from Customer will be made at the time
of delivery of the Aircraft in which the BFE is installed.
8. Interchange of BFE
To properly maintain Boeing's production flow and to preserve Boeing's
delivery commitments, Boeing reserves the right, if necessary, due to equipment
shortages or failures, to interchange new items of BFE acquired from or for
Customer with new items of the same part numbers acquired from or for other
customers of Boeing. Used BFE acquired from Customer or from other customers of
Boeing will not be interchanged.
9. Indemnification of Boeing.
Customer hereby indemnifies and holds harmless Boeing from and against all
claims and liabilities, including costs and expenses (including attorneys' fees)
incident thereto or incident to successfully establishing the right to
indemnification, for injury to or death of any person or persons, including
employees of Customer but not employees of Boeing, or for loss of or damage to
any property, including any Aircraft, arising out of or in any way connected
with any nonconformance or defect in any BFE and whether or not arising in tort
or occasioned by the negligence of Boeing. This indemnity will not apply with
respect to any nonconformance or defect caused solely by Boeing's installation
of the BFE.
A-4
10. Patent Indemnity.
Customer hereby indemnifies and holds harmless Boeing from and against all
claims, suits, actions, liabilities, damages and costs arising out of any actual
or alleged infringement of any patent or other intellectual property rights by
BFE or arising out of the installation, sale or use of BFE by Boeing.
_______________________________________.
(i) ________________________________________________________.
(ii) ________________________________________________________.
11. Definitions.
For the purposes of the above indemnities, the term "Boeing" includes The
Boeing Company, its divisions, subsidiaries and affiliates, the assignees of
each, and their directors, officers, employees and agents.
A-5
EXHIBIT B
to
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-HWI
between
THE BOEING COMPANY
and
Hawaiian Airlines, Inc.
CUSTOMER SUPPORT DOCUMENT
This document contains:
Part 1: Maintenance and Flight Training Programs; Operations
Engineering Support
Part 2: Field Services and Engineering Support
Services
Part 3: Technical Information and Materials
Part 4: Alleviation or Cessation of Performance
Part 5: Protection of Proprietary Information and
Proprietary Materials
B
CUSTOMER SUPPORT DOCUMENT
PART 1: BOEING MAINTENANCE AND FLIGHT TRAINING
PROGRAMS; OPERATIONS ENGINEERING SUPPORT
1. Boeing Training Programs.
1.1 Boeing will provide maintenance training and flight training programs
to support the introduction of a specific model of aircraft into service. The
training programs will consist of general and specialized courses and will be
described in a Supplemental Exhibit to the applicable purchase agreement.
__________________________________.
1.2 Boeing will conduct all training at Boeing's primary training facility
for the model of aircraft purchased unless otherwise mutually agreed.
1.3 All training will be presented in the English language. If translation
is required, Customer will provide interpreters.
1.4 Customer will be responsible for all expenses of Customer's personnel.
Boeing will transport Customer's personnel between their local lodging and
Boeing's training facility.
2. Training Planning Conferences.
Customer and Boeing will conduct planning conferences at a mutually agreed
time, approximately 12 months before the scheduled delivery month of the first
aircraft of a model to define and schedule the maintenance and flight training
programs.
3. Operations Engineering Support.
3.1 As long as an aircraft purchased by Customer from Boeing is operated
by Customer in scheduled revenue service, Boeing will provide operations
engineering support. Such support will include:
3.1.1 assistance with the analysis and preparation of performance
data to be used in establishing operating practices and policies for Customer's
operation of aircraft;
3.1.2 assistance with interpretation of the minimum equipment list,
the definition of the configuration deviation list and the analysis of
individual aircraft performance;
B-1
3.1.3 assistance with solving operational problems associated with
delivery and route-proving flights;
3.1.4 information regarding significant service items relating to
aircraft performance or flight operations; and
3.1.5 if requested by Customer, Boeing will provide operations
engineering support during an aircraft ferry flight.
4. Training at a Facility Other Than Boeing's.
If requested by Customer, Boeing will conduct the classroom portions of
the maintenance and flight training (except for the Performance Engineer
training courses) at a mutually acceptable alternate training site, subject to
the following conditions:
4.1 Customer will provide acceptable classroom space, simulators (as
necessary for flight training) and training equipment as reasonably required by
Boeing to present the courses;
4.2 Customer will pay Boeing's then-current per diem charge for each
Boeing instructor for each day, or fraction thereof, that the instructor is away
from their home location , including travel time;
4.3 Customer will reimburse Boeing for the actual costs of round-trip
transportation, coach class (unless otherwise agreed by Customer), for Boeing's
instructors and the shipping costs of training Materials between the primary
training facility and the alternate training site;
4.4 Customer will be responsible for all taxes, fees, duties, licenses,
permits and similar expenses incurred by Boeing and its employees as a result of
Boeing's providing training at the alternate site or incurred as a result of
Boeing providing revenue service training; and
4.5 Those portions of training that require the use of training devices
not available at the alternate site will be conducted at Boeing's facility or at
some other alternate site.
5. General Terms and Conditions.
5.1 Boeing flight instructor personnel will not be required to work more
than 5 days per week, or more than 8 hours in any one 24-hour period, of which
not more than 5 hours per 8-hour workday will be spent in actual flying. These
foregoing restrictions will not apply to ferry assistance or revenue service
training services, which will be governed by FAA rules and regulations.
B-2
5.2 Normal Line Maintenance is defined as line maintenance that Boeing
might reasonably be expected to furnish for flight crew training at Boeing's
facility, and will include ground support and aircraft storage in the open, but
will not include provision of spare parts. Boeing will provide Normal Line
Maintenance services for any aircraft while the aircraft is used for flight crew
training at Boeing's facility in accordance with the Boeing Maintenance Plan
(Boeing document D6-82076) and the Repair Station Operation and Inspection
Manual (Boeing document D6-25470). Customer will provide such services if flight
crew training is conducted elsewhere. Regardless of the location of such
training, Customer will be responsible for providing all maintenance items
(other than those included in Normal Line Maintenance) required during the
training, including, but not limited to, fuel, oil, landing fees and spare
parts.
5.3 If the training is based at Boeing's facility, and the aircraft is
damaged during such training, Boeing will make all necessary repairs to the
aircraft as promptly as possible. Customer will pay Boeing's reasonable charge,
including the price of parts and materials, for making the repairs. If Boeing's
estimated labor charge for the repair exceeds $25,000, Boeing and Customer will
enter into an agreement for additional services before beginning the repair
work.
5.4 If the flight training is based at Boeing's facility, several airports
in surrounding states may be used, at Boeing's option. Unless otherwise agreed
in the flight training planning conference, it will be Customer's responsibility
to make arrangements for the use of such airports.
5.5 If Boeing agrees to make arrangements on behalf of Customer for the
use of airports for flight training, Boeing will pay on Customer's behalf any
landing fees charged by any airport used in conjunction with the flight
training. At least 30 days before flight training, Customer will provide Boeing
an open purchase order against which Boeing will invoice Customer for any
landing fees Boeing paid on Customer's behalf. The invoice will be submitted to
Customer approximately 60 days after flight training is completed, when all
landing fee charges have been received and verified. Customer will pay the
amount of such invoice to Boeing within 30 days of the date of the invoice.
5.6 If requested by Boeing, and agreed by Customer, in order to provide
the flight training or ferry flight assistance, Customer will make available to
Boeing an aircraft after delivery to familiarize Boeing instructor or ferry
flight crew personnel with such aircraft. If flight of the aircraft is required
for any Boeing instructor or ferry flight crew member to maintain an FAA license
for flight proficiency or landing currency, Boeing will be responsible for the
costs of fuel, oil, landing fees and spare parts attributable to that portion of
the flight.
5.7 If any part of the training described in paragraph 1.1 of this Exhibit
is not used by Customer within 12 months after the delivery of the last aircraft
under the relevant purchase agreement, Boeing will not be obligated to provide
such training.
B-3
CUSTOMER SUPPORT DOCUMENT
PART 2: FIELD AND ENGINEERING SUPPORT SERVICES
1. Field Service Representation.
Boeing will furnish field service representation to advise Customer with
respect to the maintenance and operation of an aircraft (Field Service
Representatives).
1.1 Field Service representation will be available at Customer's main
maintenance or engineering facility beginning no later than one week before the
scheduled delivery month of the first aircraft and ending 12 months after
delivery of the last aircraft covered by a specific purchase agreement.
1.2 Customer will provide, at no charge to Boeing, suitable furnished
office space and office equipment at the location where Boeing is providing
Field Service Representatives. As reasonably required, Customer will assist each
Field Service Representative with visas, work permits, customs, mail handling,
identification passes and formal introduction to local airport authorities.
1.3 Boeing Field Service Representatives are assigned to various airports
around the world. Whenever Customer's aircraft are operating through any such
airport, the services of Boeing's Field Service Representatives are available to
Customer.
2. Engineering Support Services.
Boeing will, if requested by Customer, provide technical advisory
assistance __________________________________ for any aircraft and Boeing
Product (as defined in Part I of Exhibit C).
_____________________________________________________. Engineering Support
Services, provided from the Seattle area or at a base designated by Customer
as appropriate, will include:
2.1 Operational Problem Support. If Customer experiences operational
problems with an aircraft, Boeing will analyze the information provided by
Customer to determine the probable nature and cause of the problem and to
suggest possible solutions.
2.2 Schedule Reliability Support. If Customer is not satisfied with the
schedule reliability of a specific model of aircraft, Boeing will analyze
information provided by Customer to determine the nature and cause of the
problem and to suggest possible solutions.
B2-1
2.3 Maintenance Cost Reduction Support. If Customer is concerned that
actual maintenance costs of a specific model of aircraft are excessive, Boeing
will analyze information provided by Customer to determine the nature and cause
of the problem and to suggest possible solutions.
2.4 Aircraft Structural Repair Support. If Customer is designing
structural repairs and desires Boeing's support, Boeing will analyze and comment
on Customer's engineering releases relating to structural repairs not covered by
Boeing's Structural Repair Manual.
2.5 Aircraft Modification Support. If Customer is designing aircraft
modifications and requests Boeing's support, Boeing will analyze and comment on
Customer's engineering proposals for changes in, or replacement of, systems,
parts, accessories or equipment manufactured to Boeing's detailed design. Boeing
will not analyze or comment on any major structural change unless Customer's
request for such analysis and comment includes complete detailed drawings,
substantiating information (including any information required by applicable
government agencies), all stress or other appropriate analyses, and a specific
statement from Customer of the substance of the review and the response
requested.
2.6 Facilities, Ground Equipment and Maintenance Planning Support. Boeing
will, at Customer's request, _____________________________, evaluate Customer's
technical facilities, tools and equipment for servicing and maintaining
aircraft, to recommend changes where necessary and to assist in the formulation
of an initial maintenance plan for the introduction of the aircraft into
service.
2.7 Post-Delivery Service Support. Boeing will, at Customer's request,
perform work on an aircraft after delivery but prior to the initial departure
flight or upon the return of the aircraft to Boeing's facility prior to
completion of that flight. In that event the following provisions will apply.
2.7.1 Boeing may rely upon the commitment authority of the
Customer's personnel requesting the work.
2.7.2 As title and risk of loss has passed to Customer, the
insurance provisions of Article 8.2 of the AGTA apply.
2.7.3 The provisions of the Boeing Warranty in Part 2 of Exhibit C
of this AGTA apply.
2.7.4 Customer will pay Boeing for requested work not covered by the
Boeing Warranty, if any.
B2-2
2.7.5 The DISCLAIMER AND RELEASE and EXCLUSION OF CONSEQUENTIAL AND
OTHER DAMAGES provisions in Article 11 of Part 2 of Exhibit C of this AGTA
apply.
2.8 Additional Services. Boeing may, at Customer's request, provide
additional services for an aircraft after delivery, which may include, but not
be limited to, retrofit kit changes (kits and/or information), training, flight
services, maintenance and repair of aircraft. Such additional services will be
subject to a mutually acceptable price, schedule and scope of work. The
DISCLAIMER AND RELEASE and the EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES
provisions in Article 11 of Part 2 of Exhibit C of this AGTA and the insurance
provisions in Article 8.2 of this AGTA will apply to any such work. Title to and
risk of loss of any such aircraft will always remain with Customer.
B2-3
CUSTOMER SUPPORT DOCUMENT
PART 3: TECHNICAL INFORMATION AND MATERIALS
1. General.
Materials are defined as any and all items that are created by Boeing or a
third party, which are provided directly or indirectly from Boeing and serve
primarily to contain, convey or embody information. Materials may include either
tangible embodiments (for example, documents or drawings), or intangible
embodiments (for example, software and other electronic forms) of information
but excludes Aircraft Software. Aircraft Software is defined as software that is
installed on and used in the operation of the aircraft.
Boeing will furnish to Customer certain Materials to support the
maintenance and operation of the aircraft at no additional charge to Customer,
except as otherwise provided herein. Such Materials will, if applicable, be
prepared generally in accordance with Air Transport Association of America (ATA)
Specification No. 100, entitled "Specification for Manufacturers' Technical
Data". Materials will be in English and in the units of measure used by Boeing
to manufacture an aircraft.
Digitally-produced Materials will, if applicable, be prepared generally in
accordance with ATA Specification No. 2100, dated January 1994, "Digital Data
Standards for Aircraft Support."
2. Materials Planning Conferences.
Customer and Boeing will conduct planning conferences approximately 12
months before the scheduled delivery month of the first aircraft of a model in
order to mutually determine the proper format and quantity of Materials to be
furnished to Customer in support of the aircraft.
When available, Customer may select one Boeing digital format as the
delivery medium. Should a Boeing digital format not be chosen, Customer may
select ___________________________, a reasonable quantity of printed and 16mm
microfilm formats, with the exception of the Illustrated Parts Catalog, which
will be provided in one selected format only.
3. Information and Materials - Incremental Increase.
Until one year after the month of delivery of the last aircraft covered by
a specific purchase agreement, Customer may annually request in writing a
reasonable increase in the quantity of Materials with the exception of microfilm
master copies, digital formats, and others for which a specified number of
copies are provided. Boeing will provide the additional quantity at no
additional charge beginning with the next normal revision cycle. Customer may
request a decrease in revision quantities at any time.
B3-1
4. Advance Representative Copies.
All advance representative copies of Materials will be selected by Boeing
from available sources. Such advance copies will be for advance planning
purposes only.
5. Customized Materials.
All customized Materials will reflect the configuration of each aircraft
as delivered.
6. Revisions.
6.1 Revision Service. Boeing will provide revisions free of charge to
certain Materials to be identified in the planning conference described in
paragraph 2 above, conducted for a specific model of aircraft, reflecting
changes developed by Boeing, as long as Customer operates an aircraft of that
model.
6.2 Revisions Based on Boeing Service Bulletin Incorporation. If Boeing
receives written notice that Customer intends to incorporate, or has
incorporated, any Boeing service bulletin in an aircraft, Boeing will at no
charge issue revisions to Materials with revision service reflecting the effects
of such incorporation into such aircraft.
7. Computer Software Documentation for Boeing Manufactured Airborne
Components and Equipment.
Boeing will provide to Customer a Computer Software Index containing a
listing of (i) all programmed airborne avionics components and equipment
manufactured by Boeing or a Boeing subsidiary, designed and developed in
accordance with Radio Technical Commission for Aeronautics Document No.
RTCA/DO-178 dated January 1982, No. RTCA/DO-178A dated March 1985, or later as
available, and installed by Boeing in aircraft covered by the applicable
purchase agreement and (ii) specific software documents (Software Documentation)
available to Customer from Boeing for the listed components and equipment.
Two copies of the Computer Software Index will be furnished to Customer
with the first aircraft of a model. Revisions to the Computer Software Index
applicable to such model of aircraft will be issued to Customer as revisions are
developed by Boeing for so long as Customer operates the aircraft.
B3-2
Software Documentation will be provided to Customer upon written request.
The charge to Customer for Software Documentation will be Boeing's price to
reproduce the Software Documentation requested. Software Documentation will be
prepared generally in accordance with ATA Specification No. 102 revised April
20, 1983, "Specification for Computer Software Manual" but Software
Documentation will not include, and Boeing will not be obligated to provide, any
code (including, but not limited to, original source code, assembled source
code, or object code) on computer sensible media.
8. Supplier Technical Data.
8.1 For supplier-manufactured programmed airborne avionics components and
equipment classified as Seller Furnished Equipment (SFE) or Seller Purchased
Equipment (SPE) or Buyer Designated Equipment (BDE) which contain computer
software designed and developed in accordance with Radio Technical Commission
for Aeronautics Document No. RTCA/DO-178 dated January 1982, No. RTCA/DO-178A
dated March 1985, or later as available, Boeing will request that each supplier
of the components and equipment make software documentation available to
Customer in a manner similar to that described in Article 7 above.
8.2 The provisions of this Article will not be applicable to items of BFE.
8.3 Boeing will furnish to Customer a document identifying the terms and
conditions of the product support agreements between Boeing and its suppliers
requiring the suppliers to fulfill Customer's requirements for information and
services in support of the specific model of aircraft.
9. Buyer Furnished Equipment Data.
Boeing will incorporate BFE information into the customized Materials
providing Customer makes the information available to Boeing at least nine
months prior to the scheduled delivery month of Customer's first aircraft of a
specific model. Customer agrees to furnish the information in Boeing standard
digital format if Materials are to be delivered in Boeing standard digital
format.
10. Materials Shipping Charges.
Boeing will pay the reasonable transportation costs of the Materials.
Customer is responsible for any customs clearance charges, duties, and taxes.
B3-3
11. Customer's Shipping Address.
The Materials furnished to Customer hereunder are to be sent to:
Hawaiian Airlines, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx 00000
Attention: Vice President - Maintenance
Customer will promptly notify Boeing of any change to the address.
B3-4
CUSTOMER SUPPORT DOCUMENT
PART 4: ALLEVIATION OR CESSATION OF PERFORMANCE
Boeing will not be required to provide any Materials, services, training or
other things at a facility designated by Customer if any of the following
conditions exist:
1. a labor stoppage or dispute in progress involving Customer;
2. wars or warlike operations, riots or insurrections in the country where
the facility is located;
3. any condition at the facility which, in the reasonable opinion of
Boeing, is detrimental to the general health, welfare or safety of its personnel
or their families;
4. the United States Government refuses permission to Boeing personnel or
their families to enter into the country where the facility is located, or
recommends that Boeing personnel or their families leave the country; or
5. the United States Government refuses permission to Boeing to deliver
Materials, services, training or other things to the country where the facility
is located.
After the location of Boeing personnel at the facility, Boeing further reserves
the right, upon the occurrence of any of such events, to immediately and without
prior notice to Customer relocate its personnel and their families. In the event
of an alleviation or cessation of performance under this Part 4, Boeing and
Customer shall discuss alternatives that would allow for continuation of
Boeing's support under this Exhibit B.
B4-1
CUSTOMER SUPPORT DOCUMENT
PART 5: PROTECTION OF PROPRIETARY INFORMATION
AND PROPRIETARY MATERIALS
1. General.
All Materials provided by Boeing to Customer and not covered by a Boeing
CSGTA or other agreement between Boeing and Customer defining Customer's right
to use and disclose the Materials and included information will be covered by,
and subject to the terms of this AGTA. Title to all Materials containing,
conveying or embodying confidential, proprietary or trade secret information
(Proprietary Information) belonging to Boeing or a third party (Proprietary
Materials), will at all times remain with Boeing or such third party. Customer
will treat all Proprietary Materials and all Proprietary Information in
confidence and use and disclose the same only as specifically authorized in this
AGTA.
2. License Grant.
____________________________, Boeing grants to Customer a worldwide,
non-exclusive, non-transferable license to use and disclose Proprietary
Materials in accordance with the terms and conditions of this AGTA. Customer is
authorized to make copies of Materials (except for Materials bearing the
copyright legend of a third party), and all copies of Proprietary Materials will
belong to Boeing and be treated as Proprietary Materials under this AGTA.
Customer will preserve all proprietary legends, and all copyright notices on all
Materials and insure the inclusion of those legends and notices on all copies.
3. Use of Proprietary Materials and Proprietary Information.
Customer is authorized to use Proprietary Materials and Proprietary
Information for the purpose of: (a) operation, maintenance, repair, or
modification of Customer's aircraft for which the Proprietary Materials and
Proprietary Information have been specified by Boeing and (b) development and
manufacture of training devices and maintenance tools for use by Customer.
4. Providing of Proprietary Materials to Contractors.
Customer is authorized to provide Proprietary Materials to Customer's
contractors for the sole purpose of maintenance, repair, or modification of
Customer's aircraft for which the Proprietary Materials have been specified by
Boeing. In addition, Customer may provide Proprietary Materials to Customer's
contractors for the sole purpose of developing and manufacturing training
devices and maintenance tools for Customer's use. Before providing Proprietary
Materials to its contractor, Customer will first obtain a written agreement from
the contractor by which the contractor agrees (a) to use the Proprietary
Materials only on behalf of Customer, (b) to be bound by all of the restrictions
and limitations of this Part 5, and (c) that Boeing is a third party beneficiary
under the written agreement. Customer agrees to provide copies of all such
written agreements to Boeing upon request and be liable to Boeing for any breach
of those agreements by a contractor. A sample agreement acceptable to Boeing is
attached as Appendix VII.
B5-1
5. Providing of Proprietary Materials and Proprietary Information to
Regulatory Agencies.
When and to the extent required by a government regulatory agency having
jurisdiction over Customer or an aircraft, Customer is authorized to provide
Proprietary Materials and to disclose Proprietary Information to the agency for
use in connection with Customer's operation, maintenance, repair, or
modification of such aircraft. Customer agrees to take all reasonable steps to
prevent the agency from making any distribution, disclosure, or additional use
of the Proprietary Materials and Proprietary Information provided or disclosed.
Customer further agrees to notify Boeing immediately upon learning of any (a)
distribution, disclosure, or additional use by the agency, (b) request to the
agency for distribution, disclosure, or additional use, or (c) intention on the
part of the agency to distribute, disclose, or make additional use of
Proprietary Materials or Proprietary Information.
B5-2
EXHIBIT C
to
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-HWI
between
THE BOEING COMPANY
and
Hawaiian Airlines, Inc.
PRODUCT ASSURANCE DOCUMENT
This document contains:
Part 1: Exhibit C Definitions
Part 2: Boeing Warranty
Part 3: Boeing Service Life Policy
Part 4: Supplier Warranty Commitment
Part 5: Boeing Interface Commitment
Part 6: Boeing Indemnities against Patent and Copyright
Infringement
C
PRODUCT ASSURANCE DOCUMENT
PART 1: EXHIBIT C DEFINITIONS
Authorized Agent - Agent appointed by Customer to perform corrections and
to administer warranties (see Appendix VI to the AGTA for a form acceptable to
Boeing).
Average Direct Hourly Labor Rate - the average hourly rate (excluding all
fringe benefits, premium-time allowances, social charges, business taxes and the
like) paid by Customer to its Direct Labor employees.
Boeing Product - any system, accessory, equipment, part or Aircraft
Software that is manufactured by Boeing or manufactured to Boeing's detailed
design with Boeing's authorization.
Correct - to repair, modify, provide modification kits or replace with a
new product.
Correction - a repair, a modification, a modification kit or replacement
with a new product.
Corrected Boeing Product - a Boeing Product which is free of defect as a
result of a Correction.
Direct Labor - Labor spent by Customer's direct labor employees to remove,
disassemble, modify, repair, inspect and bench test a defective Boeing Product,
and to reassemble, reinstall a Corrected Boeing Product and perform final
inspection.
Direct Materials - Items such as parts, gaskets, grease, sealant and
adhesives, installed or consumed in performing a Correction, excluding
allowances for administration, overhead, taxes, customs duties and the like.
Source Control Drawing (SCD) - a Boeing document defining specifications
for certain Supplier Products.
Supplier - the manufacturer of a Supplier Product.
Supplier Product - any system, accessory, equipment, part or Aircraft
Software that is not manufactured to Boeing's detailed design. This includes but
is not limited to parts manufactured to a SCD, all standards, and other parts
obtained from non-Boeing sources.
C1-1
PRODUCT ASSURANCE DOCUMENT
PART 2: BOEING WARRANTY
1. Applicability.
This warranty applies to all Boeing Products. Warranties applicable to
Supplier Products are in Part 4. Warranties applicable to engines will be
provided by Supplemental Exhibits to individual purchase agreements.
2. Warranty.
2.1 Coverage. Boeing warrants that at the time of delivery:
(i) the aircraft will conform to the Detail Specification except
for portions stated to be estimates, approximations or design
objectives;
(ii) all Boeing Products will be free from defects in material,
process of manufacture and workmanship, including the
workmanship utilized to install Supplier Products, engines and
BFE, and;
(iii) all Boeing Products will be free from defects in design,
including selection of materials and the process of
manufacture, in view of the state of the art at the time of
design
2.2 Exceptions. The following conditions do not constitute a defect under
this warranty:
(i) conditions resulting from normal wear and tear;
(ii) conditions resulting from Customer's misuse, abuse neglect or
omissions; and
(iii) conditions resulting from failure to properly service and
maintain a Boeing Product .
3. Warranty Periods.
3.1 Warranty. The warranty period begins on the date of aircraft or Boeing
Product delivery and ends: (i) after 48 months for Boeing aircraft models
777-200, -300 or 737-600, -700, -800, or new aircraft models designed and
manufactured with similar, new technology; or, (ii) after 36 months for any
other Boeing aircraft model.
C2-1
3.2 Warranty on Corrected Boeing Products. The warranty period applicable
to a Corrected Boeing Product, including the workmanship to Correct and install,
resulting from a defect in material or workmanship is the remainder of the
initial warranty period for the defective Boeing Product it replaced. The
warranty period for a Corrected Boeing Product resulting from a defect in design
is 18 months or the remainder of the initial warranty period, whichever is
longer. The 18 month period begins on the date of delivery of the Corrected
Boeing Product or date of delivery of the kit or kits furnished to Correct the
Boeing Product.
3.3 Survival of Warranties. All warranty periods are stated above. The
Performance Guarantees will not survive delivery of the aircraft.
4. Remedies.
4.1 Correction Options. Customer may, at its option, either perform a
Correction of a defective Boeing Product or return the Boeing Product to Boeing
for Correction.
4.2 Warranty Labor Rate. If Customer or its Authorized Agent Corrects a
defective Boeing Product, Boeing will reimburse Customer for Direct Labor Hours
at Customer's established Warranty Labor Rate. Customer's established Warranty
Labor Rate will be the greater of the standard labor rate or 150% of Customer's
Average Direct Hourly Labor Rate. The standard labor rate paid by Boeing to its
customers is established and published annually. Prior to or concurrently with
submittal of Customer's first claim for Direct Labor reimbursement, Customer may
notify Boeing of Customer's then-current Average Direct Hourly Labor Rate, and
thereafter notify Boeing of any material change in such rate. Boeing will
require information from Customer to substantiate such rates.
4.3 Warranty Inspections. In addition to the remedies to Correct defects
in Boeing Products, Boeing will reimburse Customer for the cost of Direct Labor
to perform certain inspections of the aircraft to determine the occurrence of a
condition Boeing has identified as a covered defect, provided:
4.3.1 the inspections _______________________________________ are
recommended by a service bulletin or service letter issued by Boeing during the
warranty period; and
4.3.2 such reimbursement will not apply to any inspections performed
after a Correction is available to Customer.
4.4 Credit Memorandum Reimbursement. Boeing will make all reimbursements
by credit memoranda which may be applied toward the purchase of Boeing goods and
services.
C2-2
4.5 Maximum Reimbursement. Unless previously agreed, the maximum
reimbursement for Direct Labor and Direct Materials used to Correct a defective
Boeing Product will not exceed 65% of Boeing's then-current sales price for a
new replacement Boeing Product. If the estimate to correct a defective Boeing
Product exceeds 65% of the replacement price of a new part, Boeing will either
provide a credit to Customer at 65% of the replacement price of a new part or a
new replacement part, at Customer's option.
5. Discovery and Notice.
5.1 For a claim to be valid:
(i) the defect must be discovered during the warranty period;
and
(ii) Boeing Warranty must receive written notice of the discovery
no later than 90 days after expiration of the warranty period.
The notice must include sufficient information to substantiate
the claim.
5.2 Receipt of Customer's or its Authorized Agent's notice of the
discovery of a defect secures Customer's rights to remedies under this Exhibit
C, even though a Correction is performed after the expiration of the warranty
period.
5.3 Once Customer has given valid notice of the discovery of a defect, a
claim should be submitted as soon as practicable after performance of the
Correction.
5.4 Boeing may release service bulletins or service letters advising
Customer of the availability of certain warranty remedies. When such advice is
provided, Customer will be deemed to have fulfilled the requirements for
discovery of the defect and submittal of notice under this Exhibit C as of the
date specified in the service bulletin or service letter.
6. Filing a Claim.
6.1 Authority to File. Claims may be filed by Customer or its Authorized
Agent. Appointment of an Authorized Agent will only be effective upon Boeing's
receipt of the Authorized Agent's express written agreement, in a form
satisfactory to Boeing, to be bound by and to comply with all applicable terms
and conditions of this Aircraft General Terms Agreement.
6.2 Claim Information.
6.2.1 Claimant is responsible for providing sufficient information
to substantiate Customer's rights to remedies under this Exhibit C. Boeing may
reject a claim for lack of sufficient information. At a minimum, such
information must include:
C2-3
(i) identity of claimant;
(ii) serial or block number of the aircraft on which the
defective Boeing Product was delivered;
(iii) part number and nomenclature of the defective Boeing
Product;
(iv) purchase order number and date of delivery of the
defective spare part, as applicable
(v) description and substantiation of the defect;
(vi) date the defect was discovered;
(vii) date the Correction was completed;
(viii) the total flight hours or cycles accrued;
(ix) an itemized account of direct labor hours expended in
performing the Correction; and
(x) an itemized account of any direct materials incorporated
in the Correction.
6.2.2 Additional information may be required based on the nature of
the defect and the remedies requested.
6.3 Boeing Claim Processing.
6.3.1 Any claim for a Boeing Product returned by Customer or its
Authorized Agent to Boeing for Correction must accompany the Boeing Product. Any
claim not associated with the return of a Boeing Product must be signed and
submitted in writing directly by Customer or its Authorized Agent to Boeing
Warranty.
6.3.2 Boeing will promptly review the claim and will give diligent
efforts to give notification of claim approval or rejection within 30 days of
receipt of such claim. If the claim is rejected, Boeing will provide a written
explanation and reasonable substantiation of such rejection.
7. Corrections Performed by Customer or Its Authorized Agent.
7.1 Facilities Requirements. Provided Customer, its Authorized Agent or
its third party contractor, as appropriate, are certified by the appropriate
Civil Aviation Authority or Federal Aviation Authority, Customer or its
Authorized Agent may, at its option, Correct defective Boeing Products at its
facilities, or may subcontract Corrections to a third party contractor.
C2-4
7.2 Technical Requirements. All Corrections done by Customer, its
Authorized Agent or a third party contractor must be performed in accordance
with Boeing's applicable service manuals, bulletins or other written
instructions, using parts and materials furnished or approved by Boeing.
7.3 Reimbursement.
7.3.1 Boeing will reimburse Customer's reasonable costs of Direct
Materials and Direct Labor (excluding time expended for overhaul) at Customer's
Warranty Labor Rate to Correct a defective Boeing Product. Claims for
reimbursement must contain sufficient information to substantiate Direct Labor
hours expended and Direct Materials consumed. Customer or its Authorized Agent
may be required to produce invoices for materials.
7.3.2 Reimbursement for Direct Labor hours to perform Corrections
stated in a service bulletin will be based on the labor estimates in the service
bulletin.
7.3.3 Boeing will reimburse Customer's freight charges associated
with a Correction of a defect on a Boeing Product performed by its Authorized
Agent or a third party contractor.
7.4 Disposition of Defective Boeing Products Beyond Economical
Repair.
7.4.1 A defective Boeing Product found to be beyond economical
repair (see Para. 4.5 Maximum Reimbursement) will be retained for a period of 60
days from the date Boeing receives Customer's claim. During the 60 day period,
Boeing may request return of such Boeing Products for inspection and
confirmation of a defect.
7.4.2 After the 60 day period, a defective Boeing Product with a
value of U.S. $2000 or less may be scrapped without notification to Boeing. If
such Boeing Product has a value greater than U.S. $2000, Customer must obtain
confirmation of unrepairability by Boeing's on-site Customer Services
Representative prior to scrapping. Confirmation may be in the form of the
Representative's signature on Customer's claim or through direct communication
between the Representative and Boeing Warranty.
8. Corrections Performed by Boeing.
8.1 Freight Charges. Customer or its Authorized Agent will pay shipping
charges to return a Boeing Product to Boeing. Boeing will reimburse Customer or
its Authorized Agent for the charge for any item determined to be defective
under this Aircraft General Terms Agreement. Boeing will pay shipping charges to
return the Corrected Boeing Product.
C2-5
8.2 Customer Instructions. The documentation shipped with the returned
defective Boeing Product may include specific technical instructions for
additional work to be performed on the Boeing Product. The absence of such
instructions will evidence Customer's authorization for Boeing to perform all
necessary Corrections and work required to return the Boeing Product to a
serviceable condition.
8.3 Correction Time Objectives.
8.3.1 Boeing's objective for making Corrections is 10 working days
for avionics and electronic Boeing Products, 30 working days for Corrections of
other Boeing Products performed at Boeing's facilities, and 40 working days for
Corrections of other Boeing Products performed at a Boeing subcontractor's
facilities. The objectives are measured from the date Boeing receives the
defective Boeing Product and a valid claim to the date Boeing ships the
Correction.
8.3.2 If Customer has a critical parts shortage because Boeing has
exceeded a Correction time objective and Customer has procured spare Boeing
Products for the defective Boeing Product in quantities shown in Boeing's
Recommended Spare Parts List (RSPL) or Spares Planning and Requirements
Evaluation Model (M-SPARE), then Boeing will either expedite the Correction or
provide an interchangeable Boeing Product on a no charge loan or lease basis
until the Corrected Boeing Product is returned.
8.4 Title Transfer and Risk of Loss.
8.4.1 Title to and risk of loss of any Boeing Product returned to
Boeing will at all times remain with Customer or any other title holder of such
Boeing Product. While Boeing has possession of the returned Boeing Product,
Boeing will have only such liabilities as a bailee for mutual benefit would
have, but will not be liable for loss of use.
8.4.2 If a Correction requires shipment of a new Boeing Product,
then at the time Boeing ships the new Boeing Product, title to and risk of loss
for the returned Boeing Product will pass to Boeing, and title to and risk of
loss for the new Boeing Product will pass to Customer.
9. Returning an Aircraft.
9.1 Conditions. An aircraft may be returned to Boeing's facilities for
Correction only if:
(i) Boeing and Customer agree a covered defect exists;
(ii) Customer lacks access to adequate facilities, equipment or
qualified personnel to perform the Correction; and
C2-6
(iii) it is not practical, in Boeing's estimation, to dispatch
Boeing personnel to perform the Correction at a remote site.
9.2 Correction Costs. Boeing will perform the Correction at no charge to
Customer. Subject to the conditions of Article 10.1, Boeing will reimburse
Customer for the costs of fuel, oil and landing fees incurred in ferrying the
aircraft to Boeing and back to Customer's facilities. Customer will minimize the
length of both flights.
9.3 Separate Agreement. Boeing and Customer will enter into a separate
agreement covering return of the aircraft and performance of the Correction.
Authorization by Customer for Boeing to perform additional work that is not part
of the Correction must be received within 24 hours of Boeing's request. If such
authorization is not received within 24 hours, Customer will be invoiced for
work performed by Boeing that is not part of the Correction.
10. Insurance.
The provisions of Article 8.2 "Insurance", of this AGTA, will apply to any
work performed by Boeing in accordance with Customer's specific technical
instructions, to the extent any legal liability of Boeing is based upon the
content of such instructions.
11. Disclaimer and Release; Exclusion of Liabilities.
11.1 DISCLAIMER AND RELEASE. THE WARRANTIES, OBLIGATIONS AND LIABILITIES
OF BOEING AND THE REMEDIES OF CUSTOMER IN THIS EXHIBIT C ARE EXCLUSIVE AND IN
SUBSTITUTION FOR, AND CUSTOMER HEREBY WAIVES, RELEASES AND RENOUNCES, ALL OTHER
WARRANTIES, OBLIGATIONS AND LIABILITIES OF BOEING AND ALL OTHER RIGHTS, CLAIMS
AND REMEDIES OF CUSTOMER AGAINST BOEING, EXPRESS OR IMPLIED, ARISING BY LAW OR
OTHERWISE, WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN ANY AIRCRAFT,
MATERIALS, TRAINING, SERVICES OR OTHER THING PROVIDED UNDER THIS AGTA AND THE
APPLICABLE PURCHASE 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; AND
C2-7
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF
OR DAMAGE TO ANY AIRCRAFT.
11.2 EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES. BOEING WILL HAVE NO
OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT,
WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF BOEING, 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, MATERIALS,
TRAINING, SERVICES OR OTHER THING PROVIDED UNDER THIS AGTA AND THE APPLICABLE
PURCHASE AGREEMENT.
11.3 Definitions. For the purpose of this Article, "BOEING" or "Boeing" is
defined as The Boeing Company, its divisions, subsidiaries, affiliates, the
assignees of each, and their respective directors, officers, employees and
agents.
C2-8
PRODUCT ASSURANCE DOCUMENT
PART 3: BOEING SERVICE LIFE POLICY
1. Definitions.
SLP Component - any of the primary structural elements (excluding industry
standard parts) of the landing gear, wing, fuselage, vertical or horizontal
stabilizer listed in the applicable purchase agreement for a specific model of
aircraft that is installed in the aircraft at time of delivery or is purchased
from Boeing by Customer as a spare part. The detailed SLP Component listing will
be in Supplemental Exhibit SLP1 to each Purchase Agreement.
2. Service Life Policy.
2.1 SLP Commitment. If a failure or defect is discovered in a SLP
Component within the time periods specified in Article 2.2 below, Boeing will,
at a price calculated pursuant to Article 3 below, Correct the SLP Component.
2.2 SLP Policy Periods.
2.2.1 The policy period for SLP Components initially installed on an
aircraft is 12 years after the date of delivery of the aircraft.
2.2.2 The policy period for SLP Components purchased from Boeing by
Customer as spare parts is 12 years from delivery of such SLP Component or 12
years from the date of delivery of the last aircraft produced by Boeing of a
specific model, whichever first expires.
3. Price.
The price that Customer will pay for the Correction of a defective or
failed SLP Component will be calculated pursuant to the following formula:
P = CT
144
where:
P = price to Customer for the replacement part
C = SLP Component sales price at time of Correction
C3-1
T = total age in months of the defective or failed SLP Component
from the date of delivery to Customer to the date of discovery
of such condition.
4. Conditions.
Boeing's obligations under this Policy are conditioned upon the following:
4.1 Customer must notify Boeing in writing of the defect or failure within
three months after it is discovered.
4.2 Customer must provide reasonable evidence that the claimed defect or
failure is covered by this Policy and if requested by Boeing, that such defect
or failure was not the result of (i) a defect or failure in a component not
covered by this Policy, (ii) an extrinsic force, (iii) an act or omission of
Customer, or (iv) operation or maintenance contrary to applicable governmental
regulations or Boeing's instructions.
4.3 If return of a defective or failed SLP Component is practicable and
requested by Boeing, Customer will return such SLP Component to Boeing at
Boeing's expense.
4.4 Customer's rights and remedies under this Policy are limited to the
receipt of a Correction at prices calculated pursuant to Article 3 above.
5. Disclaimer and Release; Exclusion of Liabilities.
This Part 3 and the rights and remedies of Customer and the obligations of
Boeing are subject to the DISCLAIMER AND RELEASE and EXCLUSION OF CONSEQUENTIAL
AND OTHER DAMAGES provisions of Article 11 of Part 2 of this Exhibit C.
C3-2
PRODUCT ASSURANCE DOCUMENT
PART 4: SUPPLIER WARRANTY COMMITMENT
1. Supplier Warranties and Supplier Patent and Copyright Indemnities.
Boeing will use diligent efforts to obtain warranties and indemnities
against patent and copyright infringement enforceable by Customer from Suppliers
of Supplier Products (except for BFE and engines) installed on the aircraft at
the time of delivery that were selected and purchased by Boeing, but not
manufactured to Boeing's detailed design. Boeing will furnish copies of the
warranties and patent and copyright indemnities to Customer contained in
Supplier Product Support and Product Assurance Agreements,
_____________________________ prior to the scheduled delivery month of the first
aircraft under the initial purchase agreement to the AGTA.
2. Boeing Assistance in Administration of Supplier Warranties.
Customer will be responsible for submitting warranty claims directly to
Suppliers; however, if Customer experiences problems enforcing any Supplier
warranty obtained by Boeing for Customer, Boeing will promptly conduct an
investigation of the problem and assist Customer in the resolution of those
claims.
3. Boeing Support in Event of Supplier Default.
3.1 If the Supplier defaults in the performance of a material obligation
under its warranty, and Customer provides evidence to Boeing that a default has
occurred, then Boeing will furnish the equivalent warranty terms as provided by
the defaulting Supplier.
3.2 At Boeing's request, Customer will assign to Boeing, and Boeing will
be subrogated to, its rights against the Supplier provided by the Supplier
warranty.
C4-1
PRODUCT ASSURANCE DOCUMENT
PART 5: BOEING INTERFACE COMMITMENT
1. Interface Problems.
An Interface Problem is defined as a technical problem in the operation of
an aircraft or its systems experienced by Customer, the cause of which is not
readily identifiable by Customer but which Customer believes to be attributable
to either the design characteristics of the aircraft or its systems or the
workmanship used in the installation of Supplier Products. In the event Customer
experiences an Interface Problem, Boeing will, in consultation with Customer and
without additional charge to Customer, promptly conduct an investigation and
analysis to determine the cause or causes of the Interface Problem. Boeing will
promptly advise Customer at the conclusion of its investigation of Boeing's
opinion as to the causes of the Interface Problem and Boeing's recommendation as
to corrective action.
2. Boeing Responsibility.
If Boeing determines that the Interface Problem is primarily attributable
to the design or installation of any Boeing Product, Boeing will Correct the
design or workmanship to the extent of any then-existing obligations of Boeing
under the provisions of the applicable Boeing Warranty or Boeing Service Life
Policy.
3. Supplier Responsibility.
If Boeing determines that the Interface Problem is primarily attributable
to the design or installation of a Supplier Product, Boeing will assist Customer
in processing a warranty claim against the Supplier.
4. Joint Responsibility.
If Boeing determines that the Interface Problem is partially attributable
to the design or installation of a Boeing Product and partially to the design or
installation of a Supplier Product, Boeing will seek a solution to the Interface
Problem through the cooperative efforts of Boeing and the Supplier and will
promptly advise Customer of the resulting corrective actions and
recommendations.
5. General.
Customer will, if requested by Boeing, assign to Boeing any of its rights
against any supplier as Boeing may require to fulfill its obligations hereunder.
C5-1
6. Disclaimer and Release; Exclusion of Liabilities.
This Part 5 and the rights and remedies of Customer and the obligations of
Boeing herein are subject to the DISCLAIMER AND RELEASE and EXCLUSION OF
CONSEQUENTIAL AND OTHER DAMAGES provisions of Article 11 of Part 2 of this
Exhibit C.
C5-2
PRODUCT ASSURANCE DOCUMENT
PART 6: BOEING INDEMNITIES AGAINST PATENT
AND COPYRIGHT INFRINGEMENT
1. Indemnity Against Patent Infringement.
Boeing will defend and indemnify Customer with respect to all claims,
suits and liabilities arising out of any actual or alleged patent infringement
through Customer's use, lease or resale of any aircraft or any Boeing Product
installed on an aircraft at delivery.
2. Indemnity Against Copyright Infringement.
Boeing hereby indemnifies and holds harmless Customer from and against all
claims, suits, __________________________________ and liabilities arising out of
any actual or alleged copyright infringement through Customer's use, lease or
resale of any Boeing created Materials and Aircraft Software installed on an
aircraft at delivery.
3. Exceptions, Limitations and Conditions.
3.1 Boeing's obligation to indemnify Customer for patent infringement will
extend only to infringements in countries which, at the time of the
infringement, were party to and fully bound by either (a) Article 27 of the
Chicago Convention on International Civil Aviation of December 7, 1944, or (b)
the International Convention for the Protection of Industrial Property
(Paris Convention).
3.2 Boeing's obligation to indemnify Customer for copyright infringement
is limited to infringements in countries which, at the time of the infringement,
are members of The Berne Union and recognize computer software as a "work" under
The Berne Convention.
3.3 The indemnities provided under this Part 6 will not apply to any (i)
BFE, (ii) engines, (iii) Supplier Product (iv) Boeing Product used other than
for its intended purpose, or (v) Aircraft Software not created by Boeing.
3.4 Customer must deliver written notice to Boeing (i) within ____ days
after Customer first receives notice of any suit or other formal action against
Customer and (ii) within ___ days after Customer first receives any other
allegation or written claim of infringement covered by this Part 6.
C6-1
3.5 At any time, Boeing will have the right at its option and expense to:
(i) negotiate with any party claiming infringement, (ii) assume or control the
defense of any infringement allegation, claim, suit or formal action, (iii)
intervene in any infringement suit or formal action , and/or (iv) attempt to
resolve any claim of infringement by replacing an allegedly infringing Boeing
Product or Aircraft Software with a noninfringing equivalent.
3.6 Customer will promptly furnish to Boeing all information, records and
assistance within Customer's possession or control which Boeing reasonably
considers relevant or material to any alleged infringement covered by this Part
6.
3.7 Except as required by a final judgment entered against Customer by a
court of competent jurisdiction from which no appeals can be or have been filed,
Customer will obtain Boeing's written approval prior to paying, committing to
pay, assuming any obligation or making any material concession relative to any
infringement covered by these indemnities.
3.8 ___________________________________________________________.
3.9 Boeing will have no obligation or liability under this Part 6 for loss
of use, revenue or profit, or for any other incidental or consequential damages.
The obligations of Boeing and remedies of Customer in this Part 6 are exclusive
and in substitution for, and Customer hereby waives, releases and renounces all
other indemnities, obligations and liabilities of Boeing and all other rights,
claims and remedies of Customer against Boeing, express or implied, arising by
law or otherwise, with respect to any actual or alleged patent, copyright OR
OTHER INTELLECTUAL PROPERTY infringement or the like by any aircraft, AIRCRAFT
SOFTWARE, MATERIALS, TRAINING, SERVICES or other thing provided under this AGTA
and the applicaBLE PURCHASE AGREEMENT.
3.10 For the purposes of this Part 6, "BOEING or Boeing" is defined as The
Boeing Company, its divisions, subsidiaries, affiliates, the assignees of each
and their respective directors, officers, employees and agents.
C6-2
EXHIBIT D
to
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-HWI
between
THE BOEING COMPANY
and
Hawaiian Airlines, Inc.
ESCALATION ADJUSTMENT
AIRFRAME AND OPTIONAL FEATURES
(For Model 717-200, 737-600, 737-700, 737-800 and 737-900, the
Airframe Price Includes the Engine Price at its basic thrust level.)
D
EXHIBIT D
ESCALATION ADJUSTMENT
1. Formula.
Airframe and Optional Features price adjustments (Airframe Price
Adjustment) are used to allow prices to be stated in current year dollars at the
signing of the applicable purchase agreement and to adjust the amount to be paid
by Customer at delivery for the effects of economic fluctuation. The Airframe
Price Adjustment will be determined at the time of aircraft delivery in
accordance with the following formula:
Pa = (P+B)(L + M) - P
Where:
Pa = Airframe Price Adjustment. (For Model 717-200,
737-600, 737-700, 737-800 and 737-900, the Airframe
Price includes the Engine Price at its basic thrust
level.)
L =.65 x ECI
----
ECIb where ECIb is the base year index (as set
forth in Table 1 of the applicable purchase
agreement)
M =.35 x ICI
---
ICIb where ICIb is the base year index
(as set forth in Table 1 of the
applicable purchase agreement)
P = Airframe Price plus Optional Features Price (as set forth in
the applicable purchase agreement).
B =0.005 x (N/12) x (P) where N is the
calendar month and year of scheduled
Aircraft delivery minus the calendar month
and year of the Base Price Year, both as
shown in Table 1 of the applicable purchase
agreement.
ECI is a value determined using the U.S. Department of Labor,
Bureau of Labor Statistics "Employment Cost Index for workers in
aerospace manufacturing - Wages and Salaries" (ECI code 3721W),
calculated by establishing a three-month arithmetic average value
(expressed as a decimal and rounded to the nearest tenth) using
the values for the fifth, sixth and seventh months prior to the
month of scheduled delivery of the applicable aircraft. As the
Employment Cost Index values are only released on a quarterly
basis, the value released for the month of March will be used for
the months of January and February; the value for June used for
April and May; the value for September used for July and August;
and the value for December used for October and November.
D-1
ICI is a value determined using the U.S. Department of Labor,
Bureau of Labor Statistics "Producer Prices and Price Index
Industrial Commodities Index ", calculated as a 3-month
arithmetic average of the released monthly values (expressed as a
decimal and rounded to the nearest tenth) using the values for
the 5th, 6th and 7th months prior to the month of scheduled
delivery of the applicable aircraft.
As an example, for an aircraft scheduled to be delivered in the
month of January, the months June, July and August of the
preceding year will be utilized in determining the value of ECI
and ICI.
Note: i. In determining the values of L and M, all calculations and
resulting values will be expressed as a decimal rounded to the
nearest ten-thousandth.
ii. .65 is the numeric ratio attributed to labor in the Airframe
Price Adjustment formula.
iii. .35 is the numeric ratio attributed to materials in the
Airframe Price Adjustment formula.
iv. The denominators (base year indices) are the actual average values
reported by the U.S. Department of Labor, Bureau of Labor Statistics
(base year June 1989 = 100). The applicable base year and corresponding
denominator will be provided by Boeing in the applicable purchase
agreement.
v. If the calculated sum of L + M is less than 1.0000, then the value
of the sum is adjusted to 1.0000.
2. Values to be Utilized in the Event of Unavailability.
2.1 If the Bureau of Labor Statistics substantially revises the
methodology used for the determination of the values to be used to determine the
ECI and ICI values (in contrast to benchmark adjustments or other corrections of
previously released values), or for any reason has not released values needed to
determine the applicable Airframe Price Adjustment, the parties will, prior to
the delivery of any such aircraft, select a substitute from other Bureau of
Labor Statistics data or similar data reported by non-governmental
organizations. Such substitute will result in the same adjustment, insofar as
possible, as would have been calculated utilizing the original values adjusted
for fluctuation during the applicable time period. However, if within 24 months
after delivery of the aircraft, the Bureau of Labor Statistics should resume
releasing values for the months needed to determine the Airframe Price
Adjustment, such values will be used to determine any increase or decrease in
the Airframe Price Adjustment for the aircraft from that determined at the time
of delivery of the aircraft.
D-2
2.2 Notwithstanding Article 2.1 above, if prior to the scheduled delivery
month of an aircraft the Bureau of Labor Statistics changes the base year for
determination of the ECI and ICI values as defined above, such re-based values
will be incorporated in the Airframe Price Adjustment calculation.
2.3 In the event escalation provisions are made non-enforceable or
otherwise rendered void by any agency of the United States Government, the
parties agree, to the extent they may lawfully do so, to equitably adjust the
Purchase Price of any affected aircraft to reflect an allowance for increases or
decreases in labor compensation and material costs occurring since February of
the price base year shown in the applicable purchase agreement which is
consistent with the applicable provisions of paragraph 1 of this Exhibit D.
2.4 If within 12 months of Aircraft delivery, the published Index values
are revised due to an acknowledged error by the Bureau of Labor Statistics, the
Airframe Price Adjustment will be re-calculated using the revised Index values
(this does not include those values noted as preliminary by the Bureau of Labor
Statistics). A Credit Memo or Supplemental Invoice will be issued for the
Airframe Price Adjustment difference. Interest charges will not apply for the
period of original invoice to issuance of Credit Memo or Supplemental Invoice.
Note: i. The values released by the Bureau of Labor Statistics and
available to Boeing 30 days prior to the scheduled delivery month of
an aircraft will be used to determine the ECI and ICI values for the
applicable months (including those noted as preliminary by the
Bureau of Labor Statistics) to calculate the Airframe Price
Adjustment for the aircraft invoice at the time of delivery. The
values will be considered final and no Aircraft Price Adjustments
will be made after Aircraft delivery for any subsequent changes in
published Index values, subject always to paragraph 2.4 above.
ii.The maximum number of digits to the right of the decimal after
rounding utilized in any part of the Airframe Price Adjustment equation
will be 4, where rounding of the fourth digit will be increased to the
next highest digit when the 5th digit is equal to 5 or greater.
D-3
SAMPLE
Insurance Certificate
==============================================================================
BROKER'S LETTERHEAD
==============================================================================
[ date ]
Certificate of Insurance
ISSUED TO: The Boeing Company
Post Office Box 3707
Mail Stop 13-57
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Manager - Aviation Insurance for
Vice President - Employee Benefits,
Insurance and Taxes
CC: Boeing Commercial Airplane Group
X.X. Xxx 0000
Mail Stop 75-38
Xxxxxxx, Xxxxxxxxxx 00000-0000
X.X.X.
Attn: Vice President - Contracts
NAMED INSURED: Hawaiian Airlines
We hereby certify that in our capacity as Brokers to the Named Insured, the
following described insurance is in force on this date:
Insurer Policy No. Participation
------- ---------- -------------
POLICY PERIOD: From [date and time of inception of the Policy(ies)] to
[date and time of expiration].
GEOGRAPHICAL LIMITS: Worldwide (however, as respects "Aircraft Hull War and
Allied Perils" Insurance, as agreed by Boeing).
App. I1
SAMPLE
Insurance Certificate
AIRCRAFT INSURED: All Boeing manufactured aircraft owned or operated by
the Named Insured which are the subject of the following
purchase agreement(s), entered into between The Boeing
Company and _________________ (hereinafter "Aircraft"):
Purchase Agreement No. ____ dated ______
Purchase Agreement No. ____ dated ______
COVERAGES:
1. Aircraft "all risks" Hull (Ground and Flight)
2. Aircraft Hull War and Allied Perils (as per LSW 555, or its successor
wording)
3. Airline Liability
Including, but not limited to, Bodily Injury, Property Damage, Aircraft
Liability, Liability War Risks, Passenger Legal Liability, Premises/Operations
Liability, Completed Operations/Products Liability, Baggage Legal Liability
(checked and unchecked), Cargo Legal Liability, Contractual Liability and
Personal Injury.
The above-referenced Airline Liability insurance coverage is subject to War and
Other Perils Exclusion Clause (AV48B) but all sections, other than section (b)
are reinstated as per AV52C, or their successor endorsements.
LIMITS OF LIABILITY:
To the fullest extent of the Policy limits that the Named Insured carries from
the time of delivery of the first Aircraft under the first Purchase Agreement
listed under "Aircraft Insured" and thereafter at the inception of each policy
period, but in any event no less than the following:
Combined Single Limit Bodily Injury and Property Damage: U.S.$ any one
occurrence each Aircraft (with aggregates as applicable).
(717-200) US$300,000,000
(737-500/600) US$350,000,000
(737-300/700) US$400,000,000
(737-400) US$450,000,000
(737-800) US$500,000,000
(757-200) US$525,000,000
(757-300) US$550,000,000
(767-200) US$550,000,000
(767-300) US$700,000,000
(767-400ERX) US$750,000,000
(777-200X) US$750,000,000
App. I2
SAMPLE
Insurance Certificate
(MD-11) US$800,000,000
(777-200/300) US$800,000,000
(777-300X) US$900,000,000
(747-400) US$900,000,000
(In regard to all other models and/or derivatives, to be specified by Boeing).
(In regard to Personal Injury coverage, limits are US$25,000,000 any one
offense/aggregate.)
DEDUCTIBLES / SELF-INSURANCE
Any deductible and/or self-insurance amount (other than standard market
deductibles) are to be disclosed and agreed by Boeing.
SPECIAL PROVISIONS APPLICABLE TO BOEING:
It is certified that Insurers are aware of the terms and conditions of AGTA-HWI
and the following purchase agreements:
PA ______ dated _______
PA ______ dated _______
PA ______ dated _______
Each Aircraft manufactured by Boeing which is delivered to the Insured pursuant
to the applicable purchase agreement during the period of effectivity of the
policies represented by this Certificate will be covered to the extent specified
herein.
Insurers have agreed to the following:
A. In regard to Aircraft "all risks" Hull Insurance and Aircraft Hull War
and Allied Perils Insurance, Insurers agree to waive all rights of subrogation
or recourse against Boeing in accordance with AGTA-HWI which was incorporated by
reference into the applicable purchase agreement.
B. In regard to Airline Liability Insurance, Insurers agree:
(1) To include Boeing as an additional insured in accordance with
Customer's undertaking in Article 8.2.1 of AGTA-HWI which was incorporated by
reference into the applicable purchase agreement.
App. I3
SAMPLE
Insurance Certificate
(2) To provide that such insurance will be primary and not
contributory nor excess with respect to any other insurance available for the
protection of Boeing;
(3) To provide that with respect to the interests of Boeing, such
insurance shall not be invalidated or minimized by any action or inaction,
omission or misrepresentation by the Insured or any other person or party (other
than Boeing) regardless of any breach or violation of any warranty, declaration
or condition contained in such policies;
(4) To provide that all provisions of the insurance coverages
referenced above, except the limits of liability, will operate to give each
Insured or additional insured the same protection as if there were a separate
Policy issued to each.
C. In regard to all of the above referenced policies:
(1) Boeing will not be responsible for payment, set-off, or
assessment of any kind or any premiums in connection with the policies,
endorsements or coverages described herein;
(2) If a policy is canceled for any reason whatsoever, or any
substantial change is made in the coverage which affects the interests of Boeing
or if a policy is allowed to lapse for nonpayment of premium, such cancellation,
change or lapse shall not be effective as to Boeing for thirty (30) days (in the
case of war risk and allied perils coverage seven (7) days after sending, or
such other period as may from time to time be customarily obtainable in the
industry) after receipt by Boeing of written notice from the Insurers or the
authorized representatives or Broker of such cancellation, change or lapse; and
(3) For the purposes of the Certificate, "Boeing" is defined as The
Boeing Company, its divisions, subsidiaries, affiliates, the assignees of each
and their respective directors, officers, employees and agents.
Subject to the terms, conditions, limitations and exclusions of the relative
policies.
(signature)
(typed name)
(title)
App. I4
SAMPLE
Purchase Agreement Assignment
THIS PURCHASE AGREEMENT ASSIGNMENT (Assignment) dated as of ________ 19__
between Hawaiian Airlines, a company organized under the laws of
________________ (Assignor) and ________________________, a company organized
under the laws of ________________ (Assignee). Capitalized terms used herein
without definition will have the same meaning as in the Boeing Purchase
Agreement.
Assignor and The Boeing Company, a Delaware corporation (Boeing), are
parties to the Boeing Purchase Agreement, providing, among other things, for the
sale by Boeing to Assignor of certain aircraft, engines and related equipment,
including the Aircraft.
Assignee wishes to acquire the Aircraft and certain rights and interests
under the Boeing Purchase Agreement and Assignor, on the following terms and
conditions, is willing to assign to Assignee certain of Assignor's rights and
interests under the Boeing Purchase Agreement. Assignee is willing to accept
such assignment.
It is agreed as follows:
1. For all purposes of this Assignment, the following terms will have the
following meanings:
Aircraft -- one Boeing Model ______ aircraft, bearing manufacturer's
serial number _______, together with all engines and parts installed on such
aircraft on the Delivery Date.
Boeing -- Boeing shall include Boeing Sales Corporation (a wholly-owned
subsidiary of Boeing), a Guam corporation, and its successors and assigns.
Boeing Purchase Agreement -- Purchase Agreement No. ________ dated as of
____________ between Boeing and Assignor, as amended, but excluding
______________, providing, among other things, for the sale by Boeing to
Assignor of the Aircraft, as said agreement may be further amended to the extent
permitted by its terms. The Purchase Agreement incorporated by reference
Aircraft General Terms Agreement AGTA/____ (AGTA).
Delivery Date -- the date on which the Aircraft is delivered by Boeing to
Assignee pursuant to and subject to the terms and conditions of the Boeing
Purchase Agreement and this Assignment.
2. Assignor does hereby assign to Assignee all of its rights and interests
in and to the Boeing Purchase Agreement, as and to the extent that the same
relate to the Aircraft and the purchase and operation thereof, except as and to
the extent expressly reserved below, including, without limitation, in such
assignment: [TO BE COMPLETED BY THE PARTIES.]
App. II1
SAMPLE
Purchase Agreement Assignment
{EXAMPLES
(a) the right upon valid tender to purchase the Aircraft pursuant to the
Boeing Purchase Agreement subject to the terms and conditions
thereof and the right to take title to the Aircraft and to be named
the "Buyer" in the xxxx of sale for the Aircraft;
(b) the right to accept delivery of the Aircraft;
(c) all claims for damages arising as a result of any default under the
Boeing Purchase Agreement in respect of the Aircraft;
(d) all warranty and indemnity provisions contained in the Boeing
Purchase Agreement, and all claims arising thereunder, in respect of
the Aircraft; and
(e) any and all rights of Assignor to compel performance of the terms of
the Boeing Purchase Agreement in respect of the Aircraft.}
Reserving exclusively to Assignor, however:
{EXAMPLES
(i) all Assignor's rights and interests in and to the Boeing Purchase
Agreement as and to the extent the same relates to aircraft other
than the Aircraft, or to any other matters not directly pertaining
to the Aircraft;
(ii) all Assignor's rights and interests in or arising out of any advance
or other payments or deposits made by Assignor in respect of the
Aircraft under the Boeing Purchase Agreement and any amounts
credited or to be credited or paid or to be paid by Boeing in
respect of the Aircraft;
(iii) the right to obtain services, training, information and
demonstration and test flights pursuant to the Boeing Purchase
Agreement; and
(iv) the right to maintain plant representatives at Boeing's plant
pursuant to the Boeing Purchase Agreement.}
Assignee hereby accepts such assignment.
3. Notwithstanding the foregoing, so long as no event of default or
termination under [specify document] has occurred and is continuing, Assignee
hereby authorizes Assignor, to the exclusion of Assignee, to exercise in
Assignor's name all rights and powers of Customer under the Boeing Purchase
Agreement in respect of the Aircraft.
App. II2
4. For all purposes of this Assignment, Boeing will not be deemed to have
knowledge of or need recognize the occurrence, continuance or the discontinuance
of any event of default or termination under [specify document] unless and until
Boeing receives from Assignee written notice thereof, addressed to its Vice
President - Contracts, Boeing Commercial Airplane Group at X.X. Xxx 0000,
Xxxxxxx, Xxxxxxxxxx 00000, if by mail, or to 32-9430 Answerback BOEINGREN RNTN,
if by telex. Until such notice has been given, Boeing will be entitled to deal
solely and exclusively with Assignor. Thereafter, until Assignee has provided
Boeing written notice that any such events no longer continue, Boeing will be
entitled to deal solely and exclusively with Assignee. Boeing may act with
acquittance and conclusively rely on any such notice.
5. It is expressly agreed that, anything herein contained to the contrary
notwithstanding: (a) prior to the Delivery Date Assignor will perform its
obligations with respect to the Aircraft to be performed by it on or before such
delivery, (b) Assignor will at all times remain liable to Boeing under the
Boeing Purchase Agreement to perform all obligations of Customer thereunder to
the same extent as if this Assignment had not been executed, and (c) the
exercise by Assignee of any of the assigned rights will not release Assignor
from any of its obligations to Boeing under the Boeing Purchase Agreement,
except to the extent that such exercise constitutes performance of such
obligations.
6. Notwithstanding anything contained in this Assignment to the contrary
(but without in any way releasing Assignor from any of its obligations under the
Boeing Purchase Agreement), Assignee confirms for the benefit of Boeing that,
insofar as the provisions of the Boeing Purchase Agreement relate to the
Aircraft, in exercising any rights under the Boeing Purchase Agreement, or in
making any claim with respect to the Aircraft or other things (including,
without limitation, Material, training and services) delivered or to be
delivered pursuant to the Boeing Purchase Agreement, the terms and conditions of
the Boeing Purchase Agreement, including, without limitation, the DISCLAIMER AND
RELEASE and EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES in Article 11 of Part 2
of Exhibit C to the Aircraft General Terms Agreement which was incorporated by
reference into the Boeing Purchase Agreement and the insurance provisions in
Article 8.2 of the Aircraft General Terms Agreement which was incorporated by
reference into the Boeing Purchase Agreement therein, will apply to and be
binding on Assignee to the same extent as if Assignee had been the original
"Customer" thereunder. Assignee further agrees, expressly for the benefit of
Boeing, upon the written request of Boeing, Assignee will promptly execute and
deliver such further assurances and documents and take such further action as
Boeing may reasonably request in order to obtain the full benefits of Assignee's
agreements in this paragraph.
7. Nothing contained herein will subject Boeing to any liability to which
it would not otherwise be subject under the Boeing Purchase Agreement or modify
in any respect the contract rights of Boeing thereunder, or require Boeing to
divest itself of title to or possession of the Aircraft or other things until
delivery thereof and payment therefor as provided therein.
App. II3
8. Notwithstanding anything in this Assignment to the contrary, after
receipt of notice of any event of default or termination under [specify
document], Boeing will continue to owe to Assignor moneys in payment of claims
made or obligations arising before such notice, which moneys may be subject to
rights of set-off available to Boeing under applicable law. Similarly, after
receipt of notice that such event of default or termination no longer continues,
Boeing will continue to owe to Assignee moneys in payment of claims made or
obligations arising before such notice, which moneys may be subject to rights of
set-off available to Boeing under applicable law.
9. Effective at any time after an event of default has occurred, and for
so long as such event of default is continuing, Assignor does hereby constitute
Assignee, Assignor's true and lawful attorney, irrevocably, with full power (in
the name of Assignor or otherwise) to ask, require, demand, receive, and give
acquittance for any and all moneys and claims for moneys due and to become due
under or arising out of the Boeing Purchase Agreement in respect of the
Aircraft, to the extent assigned by this Assignment.
10. Assignee agrees, expressly for the benefit of Boeing and Assignor that
it will not disclose, directly or indirectly, any terms of the Boeing Purchase
Agreement; provided, that Assignee may disclose any such information (a) to its
special counsel and public accountants, (b) as required by applicable law to be
disclosed or to the extent that Assignee may have received a subpoena or other
written demand under color of legal right for such information, but it will
first, as soon as practicable upon receipt of such requirement or demand,
furnish an explanation of the basis thereof to Boeing, and will afford Boeing
reasonable opportunity, to obtain a protective order or other reasonably
satisfactory assurance of confidential treatment for the information required to
be disclosed, and (c) to any bona fide potential purchaser or lessee of the
Aircraft. Any disclosure pursuant to (a) and (c) above will be subject to
execution of a confidentiality agreement substantially similar to this paragraph
10.
11. This Assignment may be executed by the parties in separate
counterparts, each of which when so executed and delivered will be an original,
but all such counterparts will together constitute but one and the same
instrument.
App. II4
12. This Assignment will be governed by, and construed in accordance with,
the laws of [______________________].
__________________________ __________________________
as Assignor as Assignee
By _______________________ By _______________________
Name: Name:
Title: Title:
[If the Assignment is further assigned by Assignee in connection with a
financing, the following language needs to be included.]
Attest:
The undersigned, as [Indenture Trustee/Agent for the benefit of the Loan
Participants/Mortgagee] and as assignee of, and holder of a security interest
in, the estate, right, and interest of the Assignee in and to the foregoing
Purchase Agreement Assignment and the Purchase Agreement pursuant to the terms
of a certain [Trust Indenture/Mortgage] dated as of _____________, agrees to the
terms of the foregoing Purchase Agreement Assignment and agrees that its rights
and remedies under such [Trust Indenture/Mortgage] shall be subject to the terms
and conditions of the foregoing Purchase Agreement Assignment, including,
without limitation, paragraph 6.
[Name of Entity],
as Indenture Trustee/Agent
By:____________________________
Name:
Title:
App. II5
SAMPLE
Purchase Agreement Assignment
6
CONSENT AND AGREEMENT OF
THE BOEING COMPANY
THE BOEING COMPANY, a Delaware corporation (Boeing), hereby acknowledges
notice of and consents to the foregoing Purchase Agreement Assignment
(Assignment). Boeing confirms to Assignee that: all representations, warranties,
indemnities and agreements of Boeing under the Boeing Purchase Agreement with
respect to the Aircraft will, subject to the terms and conditions thereof and of
the Assignment, inure to the benefit of Assignee to the same extent as if
Assignee were originally named "Customer" therein.
This Consent and Agreement will be governed by, and construed in
accordance with, the law of the State of Washington, excluding the conflict of
laws principles thereof.
Dated as of ____________________, 199___.
THE BOEING COMPANY
By ________________________
Name:
Title: Attorney-in-Fact
Aircraft Manufacturer's Serial Number(s) ____________
App. II6
SAMPLE
Post-Delivery Sale Notice
Boeing Commercial Airplane Group
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Vice President - Contracts
Mail Stop 75-38
Ladies and Gentlemen:
In connection with the sale by Hawaiian Airlines (Seller) to ________________
(Purchaser) of the aircraft identified below, reference is made to Purchase
Agreement No. _____ dated as of ___________, 19__, between The Boeing Company
(Boeing) and Seller (the Purchase Agreement) under which Seller purchased
certain Boeing Model ________ aircraft, including the aircraft bearing
Manufacturer's Serial No.(s) ______________________ (the Aircraft). The Purchase
Agreement incorporated by reference Aircraft General Terms Agreement AGTA-HWI
(AGTA).
Capitalized terms used herein without definition will have the same meaning as
in the Purchase Agreement.
Seller has sold the Aircraft, including in that sale the transfer to Purchaser
of all remaining rights related to the Aircraft under the Purchase Agreement. To
accomplish this transfer of rights, as authorized by the provisions of the
Purchase Agreement:
(1) Purchaser acknowledges it has reviewed the Purchase Agreement and agrees to
be bound by and comply with all applicable terms and conditions of the Purchase
Agreement, including, without limitation, the DISCLAIMER AND RELEASE and
EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES in Article 11 of Part 2 of Exhibit
C to the AGTA and the insurance provisions in Article 8.2 of the AGTA. Purchaser
further agrees upon the written request of Boeing, to promptly execute and
deliver such further assurances and documents and take such further action as
Boeing may reasonably request in order to obtain the full benefits of
Purchaser's agreements in this paragraph; and
(2) Seller will remain responsible for any payments due Boeing as a result of
obligations relating to the Aircraft incurred by Seller to Boeing prior to the
effective date of this letter.
App. III1
SAMPLE
Post-Delivery Sale Notice
We request that Boeing acknowledge receipt of this letter and confirm the
transfer of rights set forth above by signing the acknowledgment and forwarding
one copy of this letter to each of the undersigned.
Very truly yours,
Hawaiian Airlines Purchaser
By______________________ By ______________________
Its_____________________ Its _____________________
Dated___________________ Dated ___________________
Receipt of the above letter is acknowledged and transfer of rights under the
Purchase Agreement with respect to the Aircraft is confirmed, effective as of
this date.
THE BOEING COMPANY
By______________________
Its Attorney-in-Fact
_____________________
Dated___________________
Aircraft Manufacturer's Serial Number ____________
App. III2
SAMPLE
Post-Delivery Lease Notice
Boeing Commercial Airplane Group
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Vice President - Contracts
Mail Stop 75-38
Ladies and Gentlemen:
In connection with the lease by Hawaiian Airlines (Lessor) to ___________
(Lessee) of the aircraft identified below, reference is made to Purchase
Agreement No. ____ dated as of ________, 19__, between The Boeing Company
(Boeing) and Lessor (the Purchase Agreement) under which Lessor purchased
certain Boeing Model _______ aircraft, including the aircraft bearing
Manufacturer's Serial No.(s) ___________________ (the Aircraft). The Purchase
Agreement incorporated by reference Aircraft General Terms Agreement AGTA-HWI
(AGTA).
Capitalized terms used herein without definition will have the same meaning as
in the Purchase Agreement.
Lessor has leased the Aircraft, including in that lease the transfer to Lessee
of all remaining rights related to the Aircraft under the Purchase Agreement. To
accomplish this transfer of rights, as authorized by the provisions of the
Purchase Agreement:
(1) Lessor authorizes Lessee to exercise, to the exclusion of Lessor, all rights
and powers of Lessor with respect to the remaining rights related to the
Aircraft under the Purchase Agreement. This authorization will continue until
Boeing receives written notice from Lessor to the contrary, addressed to Vice
President - Contracts, Mail Stop 75-38, Boeing Commercial Airplane Group, X.X.
Xxx 0000, Xxxxxxx, Xxxxxxxxxx 00000-0000. Until Boeing receives such notice,
Boeing is entitled to deal exclusively with Lessee with respect to the Aircraft
under the Purchase Agreement. With respect to the rights and obligations of
Lessor under the Purchase Agreement, all actions taken or agreements entered
into by Lessee during the period prior to Boeing's receipt of this notice are
final and binding on Lessor. Further, any payments made by Boeing as a result of
claims made by Lessee will be made to the credit of Lessee.
(2) Lessee accepts the authorization above, acknowledges it has reviewed the
Purchase Agreement and agrees to be bound by and comply with all applicable
terms and conditions of the Purchase Agreement including, without limitation,
the DISCLAIMER AND RELEASE and EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES in
Article 11 of Part 2 of Exhibit C AGTA and the insurance provisions in Article
8.2 of the AGTA. Lessee further agrees, upon the written request of Boeing, to
promptly execute and deliver such further assurances and documents and take such
further action as Boeing may reasonably request in order to obtain the full
benefits of Lessee's agreements in this paragraph.
App. IV1
SAMPLE
Post-Delivery Lease Notice
(3) Lessor will remain responsible for any payments due Boeing as a result of
obligations relating to the Aircraft incurred by Lessor to Boeing prior to the
effective date of this Notice.
We request that Boeing acknowledges receipt of this letter and confirm the
transfer of rights set forth above by signing the acknowledgment and forwarding
one copy of this letter to each of the undersigned.
Very truly yours,
Hawaiian Airlines Purchaser
By______________________ By ______________________
Its_____________________ Its _____________________
Dated___________________ Dated ___________________
Receipt of the above letter is acknowledged and transfer of rights under the
Purchase Agreement with respect to the Aircraft is confirmed, effective as of
this date.
By______________________
Its_____________________
Dated___________________
Aircraft Manufacturer's Serial Number ____________
App. IV2
SAMPLE
Purchaser's/Lessee's Agreement
Boeing Commercial Airplane Group
P. O. Xxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention Vice President - Contracts
Mail Stop 75-38
Ladies and Gentlemen:
In connection with the sale/lease by Hawaiian Airlines (Seller/Lessor) to
_______________________ (Purchaser/Lessee) of the aircraft identified below,
reference is made to the following documents:
(i) Purchase Agreement No. _____ dated as of ___________, 19__, between The
Boeing Company (Boeing) and Seller/Lessor (the Purchase Agreement) under which
Seller/Lessor purchased certain Boeing Model ________ aircraft, including the
aircraft bearing Manufacturer's Serial No.(s) ______________________ (the
Aircraft); and
(ii) Aircraft Sale/Lease Agreement dated as of ___________, 19__, between
Seller/Lessor and Purchaser/Lessee (the Aircraft Agreement) under which
Seller/Lessor is selling/leasing the Aircraft.
Capitalized terms used herein without definition will have the same meaning as
in the Aircraft Agreement.
1. Seller/Lessor has sold/leased the Aircraft under the Aircraft Agreement,
including therein a form of exculpatory clause protecting Seller/Lessor from
liability for loss of or damage to the aircraft, and/or related incidental or
consequential damages, including without limitation loss of use, revenue or
profit.
2. Disclaimer and Release; Exclusion of Liabilities
2.1 In accordance with Seller/Lessor's obligation under Article 9.5 of
AGTA-HWI which was incorporated by reference into the Purchase Agreement,
Purchaser/Lessee hereby agrees that:
2.2 DISCLAIMER AND RELEASE. IN CONSIDERATION OF THE SALE/LEASE OF THE
AIRCRAFT, PURCHASER/LESSEE HEREBY WAIVES, RELEASES AND RENOUNCES ALL WARRANTIES,
OBLIGATIONS AND LIABILITIES OF BOEING AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES
OF PURCHASER/LESSEE AGAINST BOEING, EXPRESS OR IMPLIED, ARISING BY LAW OR
OTHERWISE, WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN ANY AIRCRAFT, BOEING
PRODUCT, MATERIALS, TRAINING, SERVICES OR OTHER THING PROVIDED UNDER THE
AIRCRAFT AGREEMENT, INCLUDING, BUT NOT LIMITED TO:
App. V1
SAMPLE
Purchaser's/Lessee's Agreement
(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; AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF
OR DAMAGE TO ANY AIRCRAFT.
2.3 EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES. BOEING WILL HAVE NO
OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT,
WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF BOEING, 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, MATERIALS,
TRAINING, SERVICES OR OTHER THING PROVIDED UNDER THE AIRCRAFT AGREEMENT.
2.4 Definitions. For the purpose of this paragraph 0, "XXXXXX" xx "Xxxxxx"
is defined as The Boeing Company, its divisions, subsidiaries, affiliates, the
assignees of each, and their respective directors, officers, employees and
agents.
Hawaiian Airlines Purchaser/Lessee
(Seller/Lessor)
By______________________ By ______________________
Its_____________________ Its _____________________
Dated___________________ Dated ___________________
App. V2
SAMPLE
Owner Appointment of Agent - Warranties
Boeing Commercial Airplane Group
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Vice President - Contracts
Mail Stop 75-38
Ladies and Gentlemen:
1. Reference is made to Purchase Agreement No. ____ dated as of __________,
19__, between The Boeing Company (Boeing) and Hawaiian Airlines (Customer) (the
Purchase Agreement), under which Customer purchased certain Boeing Model
________ aircraft including the aircraft bearing Manufacturer's Serial No.(s)
_____________ (the Aircraft). The Purchase Agreement incorporated by reference
Aircraft General Terms Agreement AGTA-HWI (AGTA).
Capitalized terms used herein without definition will have the same meaning as
in the Purchase Agreement.
To accomplish the appointment of an agent, Customer confirms:
A. Customer has appointed ____________________ as agent (Agent) to act directly
with Boeing with respect to the remaining warranties under the Purchase
Agreement and requests Boeing to treat Agent as Customer for the administration
of claims with respect to such warranties; provided however, Customer remains
liable to Boeing to perform the obligations of Customer under the Purchase
Agreement.
B. Boeing may continue to deal exclusively with Agent concerning the matters
described herein unless and until Boeing receives written notice from Customer
to the contrary, addressed to Vice President - Contracts, Mail Stop 75-38,
Boeing Commercial Airplane Group, X.X. Xxx 0000, Xxxxxxx, Xxxxxxxxxx 00000-0000,
X.X.X. With respect to the rights and obligations of Customer under the Purchase
Agreement, all actions taken by Agent or agreements entered into by Agent during
the period prior to Boeing's receipt of such notice are final and binding on
Customer. Further, any payments made by Boeing as a result of claims made by
Agent will be made to the credit of Agent unless otherwise specified when each
claim is submitted.
C. Customer will remain responsible for any payments due Boeing as a result of
obligations relating to the Aircraft incurred by Customer to Boeing prior to the
effective date of this Notice.
App. VI1
SAMPLE
Owner Appointment of Agent - Warranties
We request that Boeing acknowledge receipt of this letter and confirm the
appointment of Agent as stated above by signing the acknowledgment and
forwarding one copy of this letter to each of the undersigned.
Very truly yours,
Hawaiian Airlines
By_________________
App. VI2
SAMPLE
Owner Appointment of Agent - Warranties
AGENT'S AGREEMENT
Agent accepts the appointment as stated above, acknowledges it has reviewed the
Purchase Agreement and agrees that, in exercising any rights or making any
claims thereunder, Agent will be bound by and comply with all applicable terms
and conditions of the Purchase Agreement including, without limitation, the
DISCLAIMER AND RELEASE and EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES in
Article 11 of Part 2 of Exhibit C to the AGTA. Agent further agrees, upon the
written request of Boeing, to promptly execute and deliver such further
assurances and documents and take such further action as Boeing may reasonably
request in order to obtain the full benefits of the warranties under the
Purchase Agreement.
Very truly yours,
Agent
By______________________
Its_____________________
Dated___________________
Receipt of the above letter is acknowledged and the appointment of Agent with
respect to the above-described rights under the Purchase Agreement is confirmed,
effective as of this date.
THE BOEING COMPANY
By______________________
Its_____________________
Dated___________________
Aircraft Manufacturer's Serial Number __________
App. VI3
SAMPLE
Contractor Confidentiality Agreement
Boeing Commercial Airplane Group
X.X. Xxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Vice President - Contracts
Mail Stop 75-38
Ladies and Gentlemen:
This Agreement is entered into between ____________________ (Contractor) and
Hawaiian Airlines (Customer) and will be effective as of the date stated below.
In connection with Customer's provision to Contractor of certain Materials,
Proprietary Materials and Proprietary Information, reference is made to Purchase
Agreement No. _____ dated as of _______ , 19___ between The Boeing Company
(Boeing) and Customer.
Capitalized terms used herein without definition will have the same meaning as
in the Purchase Agreement.
Boeing has agreed to permit Customer to make certain Materials, Proprietary
Materials and Proprietary Information relating to Customer's Boeing Model
________ aircraft, Manufacturer's Serial Number ______, Registration No.
________ (the Aircraft) available to Contractor in connection with Customer's
contract with Contractor (the Contract) to maintain/repair/modify the Aircraft.
As a condition of receiving the Proprietary Materials and Proprietary
Information, Contractor agrees as follows:
1. For purposes of this Agreement:
"Aircraft Software" means software that is installed and used in the
operation of an Aircraft.
"Materials" are defined as any and all items that are created by Boeing
or a third party, which are provided directly or indirectly from Boeing and
serve primarily to contain, convey or embody information. Materials may include
either tangible embodiments (for example, documents or drawings), or intangible
embodiments (for example, software and other electronic forms) of information
but excludes Aircraft Software.
"Proprietary Information" means any and all proprietary, confidential
and/or trade secret information owned by Boeing or a Third Party which is
contained, conveyed or embodied in Proprietary Materials.
"Proprietary Materials" means Materials that contain, convey, or embody
Proprietary Information.
"Third Party" means anyone other than Boeing, Customer and Contractor.
App. VII1
SAMPLE
Contractor Confidentiality Agreement
2. Boeing has authorized Customer to grant to Contractor a worldwide,
non-exclusive, personal and nontransferable license to use Proprietary Materials
and Proprietary Information, owned by Boeing, internally in connection with
performance of the Contract or as may otherwise be authorized by Boeing in
writing. Contractor will keep confidential and protect from disclosure to any
person, entity or government agency, including any person or entity affiliated
with Contractor, all Proprietary Materials and Proprietary Information.
Individual copies of all Materials are provided to Contractor subject to
copyrights therein, and all such copyrights are retained by Boeing or, in some
cases, by Third Parties. Contractor is authorized to make copies of Materials
(except for Materials bearing the copyright legend of a Third Party) provided,
however, Contractor preserves the restrictive legends and proprietary notices on
all copies. All copies of Proprietary Materials will belong to Boeing and be
treated as Proprietary Materials under this Agreement.
3. Contractor specifically agrees not to use Proprietary Materials or
Proprietary Information in connection with the manufacture or sale of any part
or design. Unless otherwise agreed with Boeing in writing, Proprietary Materials
and Proprietary Information may be used by Contractor only for work on the
Aircraft for which such Proprietary Materials have been specified by Boeing.
Customer and Contractor recognize and agree that they are responsible for
ascertaining and ensuring that all Materials are appropriate for the use to
which they are put.
4. Contractor will not attempt to gain access to information by reverse
engineering, decompiling, or disassembling any portion of any software provided
to Contractor pursuant to this Agreement.
5. Upon Boeing's request at any time, Contractor will promptly return to Boeing
(or, at Boeing's option, destroy) all Proprietary Materials, together with all
copies thereof and will certify to Boeing that all such Proprietary Materials
and copies have been so returned or destroyed.
6. To the extent required by a Government Entity having jurisdiction over
Contractor, Customer or the Aircraft, Contractor is authorized to provide
Proprietary Materials and disclose Proprietary Information to such Government
Entity for the such Government Entity's use in connection with Contractor's,
authorized use of such Proprietary Materials and/or Proprietary Information in
connection with Contractor's maintenance, repair, or modification of the
Aircraft. Contractor agrees to take reasonable steps to prevent such agency from
making any distribution or disclosure, or additional use of the Proprietary
Materials and Proprietary Information so provided or disclosed. Contractor
further agrees to promptly notify Boeing upon learning of any (i) distribution,
disclosure, or additional use by such agency, (ii) request to such Government
Entity for distribution, disclosure, or additional use, or (iii) intention on
the part of such Government Entity to distribute, disclose, or make additional
use of the Proprietary Materials or Proprietary Information. As used herein,
"Government Entity" means (i) any national government, political subdivison
thereof, or local jurisdiction therein, (ii) any instrumentality, board,
commission, court, or agency of any of the above, however constituted, and (iii)
any association, organization, or institution of which any of the above is a
member or to whose jurisdiction any thereof is subject or in whose activities
any of the above is a participant.
App. VII2
SAMPLE
Contractor Confidentiality Agreement
7. Boeing is a third-party beneficiary under this Agreement, and Boeing may
enforce any and all of the provisions of the Agreement directly against
Contractor. Contractor hereby submits to the jurisdiction of the Washington
state courts and the United States District Court for the Western District of
Washington with regard to any claims Boeing may make under this Agreement. It is
agreed that Washington law (excluding Washington's conflict-of-law principles)
governs this Agreement.
8. No disclosure or physical transfer by Boeing or Customer to Contractor, of
any Proprietary Materials or Proprietary Information covered by this Agreement
will be construed as granting a license, other than as expressly set forth in
this Agreement or any ownership right in any patent, patent application,
copyright or proprietary information.
9. The provisions of this Agreement will apply notwithstanding any markings or
legends, or the absence thereof, on any Proprietary Materials.
10. This Agreement is the entire agreement of the parties regarding the
ownership and treatment of Proprietary Materials and Proprietary Information,
and no modification of this Agreement will be effective as against Boeing unless
in writing signed by authorized representatives of Contractor, Customer and
Boeing.
11. Failure by either party to enforce any of the provisions of this Agreement
will not be construed as a waiver of such provisions. If any of the provision of
this Agreement is held unlawful or otherwise ineffective by a court of competent
jurisdiction, the remainder of the Agreement will remain in full force.
ACCEPTED AND AGREED TO this
Date: _____________________, 19___
Hawaiian Airlines Contractor
By__________________________ By __________________________
Its_________________________ Its _________________________
App. VII3
