EX-10.15 13 dex1015.htm AIRBUS A320 FAMILY PURCHASE AGREEMENT Airbus A320 Family Purchase Agreement

Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as [*****]. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.

Exhibit 10.15

AIRBUS A320 FAMILY PURCHASE AGREEMENT

Dated as of May 5, 2004

Between

AVSA S.A.R.L.,

Seller

and

SPIRIT AIRLINES, INC

Buyer

 

NKS-A320 FAMILY-PA

  i


C O N T E N T S

 

CLAUSES

   TITLE       
0 -   

DEFINITIONS

     2   
1 -   

SALE AND PURCHASE

     9   
2 -   

SPECIFICATION

     10   
3 -   

PRICE

     12   
4 -   

PRICE REVISION

     16   
5 -   

PAYMENT TERMS

     17   
7 -   

CERTIFICATION

     21   
8 -   

TECHNICAL ACCEPTANCE

     23   
9 -   

DELIVERY

     25   
10 -   

EXCUSABLE DELAY AND TOTAL LOSS

     27   
11 -   

INEXCUSABLE DELAY

     29   
12 -   

WARRANTIES AND SERVICE LIFE POLICY

     31   
13 -   

PATENT AND COPYRIGHT INDEMNITY

     48   
14   

TECHNICAL DATA

     51   
15 -   

SELLER REPRESENTATIVES

     56   
16 -   

TRAINING AND TRAINING AIDS

     59   
17   

SUPPLIER PRODUCT SUPPORT

     76   
18 -   

BUYER FURNISHED EQUIPMENT

     78   
19 -   

INDEMNITIES AND INSURANCE

     82   
20 -   

ASSIGNMENTS AND TRANSFERS

     85   
21   

TERMINATION

     87   

 

NKS-A320 FAMILY-PA

  ii


22 -   

MISCELLANEOUS PROVISIONS

     92   
23.   

CERTAIN REPRESENTATIONS OF THE PARTIES

     97   

 

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     iii   


C O N T E N T S

 

EXHIBITS

    

EXHIBIT A-1

   A319 STANDARD SPECIFICATION

EXHIBIT A-2

   A320 STANDARD SPECIFICATION

EXHIBIT A-3

   A321 STANDARD SPECIFICATION

EXHIBIT A-4

   SCN’s

EXHIBIT B-1

   A319 SCN FORM
   A320 SCN FORM
   A321 SCN FORM

EXHIBIT B-2

   A319 MSCN FORM
   A320 MSCN FORM
   A321 MSCN FORM

EXHIBIT C

   SELLER SERVICE LIFE POLICY

EXHIBIT D

   CERTIFICATE OF ACCEPTANCE

EXHIBIT E

   BILL OF SALE

EXHIBIT F

   TECHNICAL DATA AND SOFTWARE SERVICES

APPENDIX 1 TO EXHIBIT F

   LICENSE FOR USE OF SOFTWARE

APPENDIX 2 TO EXHIBIT F

   LICENSE FOR USE OF AIRBUS ON-LINE SERVICES

ATTACHMENT 1 TO APPENDIX 2 TO EXHIBIT F

   AIRBUS ON LINE SERVICES

EXHIBIT G

   SELLER PRICE REVISION FORMULA

EXHIBIT H

   PROPULSION SYSTEMS PRICE REVISION FORMULA

 

Spirit Airlines-A320 FAMILY – PA

  iv


P U R C H A S E   A G R E E M E N T

This agreement is made this 5th day of May 2004

between

AVSA, S.A.R.L. a société à responsabilité limitée organized and existing under the laws of the Republic of France, having its registered office located at

2, rond-point Maurice Bellonte

31700 BLAGNAC

FRANCE

(hereinafter referred to as the “Seller”)

and

SPIRIT AIRLINES, INC. a corporation organized and existing under the laws of the State of Delaware, United States of America, having its principal corporate offices located at 2800 Executive Way, Miramar, Florida 33025 (hereinafter referred to as the “Buyer”)

WHEREAS the Buyer wishes to purchase and the Seller is willing to sell new Airbus A319-100 model Aircraft and /or A320 model Aircraft and/or A321 model Aircraft, on the terms and Conditions herein provided; and

WHEREAS the Seller is a sales subsidiary of Airbus S.A.S. and will purchase such aircraft from Airbus S.A.S. for immediate resale to the Buyer,

 

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NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

0 -    DEFINITIONS

For all purposes of this agreement, except as otherwise expressly provided or unless the context otherwise requires, the following terms will have the following meanings:

Affiliate – with respect to any person or entity, any other person or entity directly or indirectly controlling, controlled by or under common control with such person or entity, not including any of the Associated Contractors.

Agreement – this Airbus A320 Family mochas agreement, including all exhibits and appendixes attached hereto, as the same may be amended or modified and in effect from time to time.

A319 Aircraft – any or all of the (i) A319 Firm Aircraft; or (ii) Option Aircraft or Rolling Option Aircraft that have been converted into firmly ordered A319 aircraft.

A319 Airframe – any A319 Aircraft, excluding Propulsion Systems.

A319 Firm Aircraft – any or all of the eleven (11) firm A319-100 Aircraft for which the delivery schedule is set forth in Clause 9.1.1 hereof together with all components, equipment, parts and accessories installed in or on such aircraft and the Propulsion Systems installed thereon upon delivery.

A319 Propulsion System – the two (2) International Aero Engines IAE V2524-A5 powerplants installed on an A319 Aircraft at Delivery, each composed of the powerplant (as such term is defined in Chapters 70-80 of ATA Specification 100 (Revision 21), but limited to the equipment, components, parts and accessories included in the powerplant, as so defined) that have been sold to the Manufacturer by the Propulsion Systems manufacturer.

A319 Specification – the A319 Standard Specification as amended by the applicable SCNs itemized in Exhibit A-4 attached hereto and any thereafter agreed between Buyer and Seller as evidenced by executed Specification Change Notices, including maximum*****, as such document may be amended from time to time.

A319 Standard Specification – the A319 standard specification document number J.000.01000, Issue 4 revision 1, dated April 30, 2001, published by the Manufacturer, a copy of which is annexed as Exhibit A-1 hereto.

A320 Aircraft – any or all of the (i)A320 Finn Aircraft, or (ii) Option Aircraft or Rolling Option Aircraft that have been converted into firmly ordered A320 aircraft; or (iii) A319 Aircraft that have been converted into firmly ordered A320 Aircraft.

A320 Airframe – any A320 Aircraft, excluding Propulsion Systems

A320 Family Aircraft – Airbus A319-100, A320-200 or A321-200 model aircraft.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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A320 Propulsion Systems – the two (2) IAE V2527-A5 powerplants installed on an A319 Aircraft at Delivery, each composed of the powerplant (as such term is defined in Chapters 70-80 of ATA Specification 100 (Revision 21), but limited to the equipment, components, parts and accessories included in the powerplant, as so defined) that have been sold to the Manufacturer by the Propulsion Systems manufacturer.

A320 Specification – the A320 Standard Specification as amended by the applicable SCNs set forth in Exhibit A-4· attached hereto and any thereafter agreed between Buyer and Seller as evidenced by executed Specification Change Notices, including ***** as such document may be amended from time to time.

A320 Standard Specification – the A320 standard specification document number D.000.02000, Issue 5 revision 1, dated April 30, 2001, published by the Manufacturer, a copy of which annexed as Exhibit A-2 hereto.

A321 Aircraft – any or all of the (i) A321 Firm Aircraft; or (ii) Option Aircraft or Rolling Option Aircraft that have been converted into firmly ordered A321 aircraft or (iii) A319 Aircraft that have been converted into firmly ordered A321 aircraft.

A321 Airframe – any A321 Aircraft, excluding Propulsion Systems.

A321 Firm Aircraft – any or all of the four (4) firm A321 Aircraft for which the delivery schedule is set forth in Clause 9.1.1 hereof to be sold by the Seller and purchased by the Buyer pursuant to this Agreement, together with all components, equipment, parts and accessories installed thereon upon delivery.

A321 Propulsion System – the two (2) IAE V2533-A5 powerplants installed on an A321 Aircraft at Delivery. each composed of the powerplant (as such term is defined in Chapters 70-80 of ATA Specification 100 (Revision 21). but limited to the equipment, components, parts and accessories included in the powerplant, as so defined) that have been sold to the Manufacturer by the Propulsion Systems manufacturer.

A321 Specification – the A321 Standard Specification as amended by the applicable SCNs itemized in Exhibit A-4 attached hereto and any thereafter agreed between Buyer and Seller as evidenced by executed Specification Change Notices, including ***** as such document may be amended from time to time.

A321 Standard Specification – the A321 standard specification document number E.000.0200, Issue 2 revision 1, dated April 30, 2001, published by the Manufacturer, a copy of which is annexed as Exhibit A-3 hereto.

Aircraft – any or all of the A319 Firm Aircraft, A321 Firm Aircraft and any or all of the Option Aircraft that have been converted to a firm order to be sold by the Seller and purchased by the Buyer pursuant to this Agreement.

Airframe – any Aircraft, excluding the Propulsion Systems.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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ANACS – Airbus North America Customer Services, Inc., a corporation organized and existing under the laws of Delaware, having its registered office located at J98 Van Buren Street, Suite 300, Herndon, VA 20170, or any successor thereto.

Associated Contractors – collectively, the following subcontractors of the Manufacturer:

 

  (1) Airbus France S.A.S., whose principal office is at
       316, route de Bayonne
       31060 Toulouse
       France

 

  (2) Airbus UK Ltd, whose principal office is at
       Warwick House
       PO Box 87
       Farnborough Aerospace Centre
       Farnborough
       Hants GU14 6YU
       England

 

  (3) Airbus Espana S.L., whose principal office is at
       404 Avenida de Aragon
       28022 Madrid
       Spain

 

  (4) Airbus Deutschland GmbH, whose principal office is at
       Kreetslag 10
       Postfach 95 01 09
       21111 Hamburg
       Germany

ATA – the Air Transport Association of America

ATA Specification 100 – the specification issued by the Air Transport Association of America relating to manufacturers’ technical data.

ATA Specification 101 – the specification issued by the Air Transport Association of America relating to ground equipment technical data.

ATA specification 102 – the specification issued by the Air Transport Association of America relating to software programs.

ATA Specification 200 – the specification issued by the Air Transport Association of America relating to integrated data processing.

ATA Specification 300 – the specification issued by the Air Transport Association of America relating to the packaging of spare parts shipments.

ATA Specification 2000 – the specification issued by the Air Transport Association of America relating to an industry-wide communication system linking suppliers and users for the purposes of spares provisioning, purchasing, order administration, invoicing and information or data exchange.

 

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ATA Specification 2100 – the specification issued by the Air Transport Association of America relating to the standards for the presentation of technical information prepared as digital media (magnetic tape or CD ROM).

Aviation Authority – when used with respect to any jurisdiction, the government entity that, under the laws of such jurisdiction, has control over civil aviation or the registration, airworthiness or operation of civil aircraft in such jurisdiction.

Balance of the Final Contract Price – means the amount payable by the Buyer to the Seller on the Delivery Date for an Aircraft after deducting from the Final Contract Price for such Aircraft the amount of all Predelivery Payments received by the Seller from the Buyer in respect of such Aircraft on or before the Delivery Date for such Aircraft.

Base Price – for any Aircraft, Airframe, SCNs or Propulsion Systems, as more completely defined in Clause 3.1 of this Agreement.

Buyer Furnished Equipment (BFE) – for any Aircraft, all the items of equipment that will be furnished by the Buyer and installed in the Aircraft by the Seller, as defined in the Specification.

Customer Originated Changes (COC) – Buyer-originated data that are introduced into Seller’s Technical Data and Documentation, as more completely set forth in Clause 14.9.3 of this Agreement.

Delivery – the transfer of title and tender of possession of the Aircraft from the Seller to the Buyer, in accordance with Clause 9.

Delivery Date – the date on which Delivery will occur.

Delivery Location – *****

Development Changes – as defined in Clause 2.1.4 of this Agreement.

DGAC – the Direction Générale de l’Aviation Civile of France, or any successor thereto.

EASA – European Aviation Safety Agency or any successor agency thereto.

Excusable Delay – delay in delivery or failure to ,deliver an Aircraft due to causes specified in Clause 10.1 of this Agreement.

Export Certificate of Airworthiness – an export certificate of airworthiness issued by the Aviation Authority of the Delivery Location.

FAA – the U.S. Federal Aviation Administration, or any successor thereto.

Final Contract Price – as defined in Clause 3.2 of this Agreement.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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Firm Aircraft – any or all of the A319 Firm Aircraft, A321 Firm Aircraft.

Free Carrier (FCA) – as defined in Incoterms 2000: ICC Official Rules for the Interpretation of Trade Terms, published by the International Chamber of Commerce.

In-house Warranty – as referred to in Clause 12.1.8 of this Agreement.

In-house Warranty Labor Rate – as defined in Clause 12.1.8(v)(b) of this Agreement.

Initial Payment – each of the initial payment amounts described in Clause 5.3. of this agreement

Interface Problem – as defined in Clause 12.4.1 of this Agreement.

LBA – Luftfahrt-Bundesamt of Germany or any successor thereto.

LIBOR – the London Interbank Offered Rate for each stated interest period, the rate determined on the basis of the offered rates for deposits in US dollars for six-months deposits in US dollars, appear on the Reuters Screen LIBO Page as of 11:00 a.m., London time, on the day that is two (2) days (other than a Saturday, Sunday or a day that is a legal holiday or a day on which banking institutions are authorized to close in the City of New York, New York, London, England, or Paris, France before the first day of an interest period. If at least two (2) such offered rates appear on the Reuters Screen LIBO Page, the rate for that interest period will be the arithmetic mean of such offered rates rounded to the nearest one-hundred thousandth of a basis point. If only one (1) offered rate appears, the rate for that interest period will be “LIBOR” as quoted by National Westminster Bank, plc. “Reuters Screen LIBO Page” means the display designated as page “LIBO” on the Reuters Monitor Money Rates Service (or any successor to such page or service).

Manufacturer – Airbus S.A.S. a Société par Actions Simplifiée established under the law of the Republic of France.

Manufacturer Specification Change Notice (MSCN) – as defined in Clause 2.1.3 of the Agreement.

Option Aircraft – any or all of the A320 Family Aircraft on option order for which the delivery schedule is set forth in the Agreement, and which may be sold by the Seller and purchased by the Buyer pursuant to this Agreement, together with all components, equipment, parts and accessories installed in or on such aircraft and the Propulsion Systems installed thereon upon delivery.

Predelivery Payment – any of the payments made in accordance with Clause 5.2 of this Agreement.

Predelivery Payment Reference Price – as defined in Clause 5.2.2 of this Agreement.

 

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Propulsion Systems – either or all of the A319 Propulsion Systems, the A320 Propulsion Systems or the A321 Propulsion Systems.

Propulsion Systems Price Revision Formula – the Propulsion Systems price revision formula set forth in Exhibit H hereto.

Ready for Delivery – when (i) the Technical Acceptance Process has been successfully completed for an Aircraft and (ii) the Export Certificate of Airworthiness has been issued for such Aircraft.

Reference Price – as set forth in Clause 3.1.1.3 of the Agreement.

Rolling Option Aircraft – any or all of the up to ***** A320 Family Aircraft that may be placed on option order pursuant to this Agreement and which may be sold by the Seller and purchased by the Buyer pursuant to this Agreement, together with all components, equipment, parts and accessories installed in or on such aircraft and the Propulsion Systems installed thereon upon delivery.

Scheduled Delivery Month – as defined in Clause 9.1.1 of the Agreement.

Seller Price Revision Formula – the airframe price revision formula set forth in Exhibit G hereto.

Service Life Policy – as set forth to in Clause 12.2 of this Agreement

Specification – either or all of the A319 Standard Specification, A320 Standard Specification or the A321 Standard Specification; as the context may require, as amended by the SCN’s set forth in Exhibit A-4 hereto as may be further amended or modified in accordance with this Agreement

Specification Change Notice (SCN) – as defined in Clause 2.1.2 of the Agreement.

Supplier – any supplier of Supplier Parts.

Supplier Part – any component, equipment, accessory or part installed in an Aircraft at the time of Delivery thereof, not including the Propulsion Systems or Buyer Furnished Equipment, for which there exists a Supplier Product Support Agreement.

Supplier Product Support Agreement – an agreement between the Manufacturer and a Supplier containing enforceable and transferable warranties (and in the case of landing gear suppliers, service life policies for selected structural landing gear elements).

Technical Data – as set forth in Exhibit F hereto.

Termination Event – as defined in Clause 21.1 and 21.2 of this Agreement.

Training Conference – as defined in Clause 16.4.1 of this Agreement.

Warranted Part – as defined in Clause 12.1.1 of this Agreement.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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Warranty Claim – as defined in Clause 12.1.7(v) of this Agreement.

Working Day – with respect to any action to be taken hereunder, a day other than a Saturday, Sunday or other day designated as a holiday in the jurisdiction in which such action is required to be taken.

The terms “herein,” “hereof” and “hereunder” and other words of similar import refer to this Agreement, and not a particular Clause thereof. The definition of a singular in this Clause will apply to plurals of the same words.

Technical and trade terms not otherwise defined herein will have the meanings assigned to them as generally accepted in the aircraft manufacturing industry.

 

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1 - SALE AND PURCHASE

The Seller will cause to be manufactured, will acquire and will sell and deliver, and the Buyer will purchase (from the Seller) and take delivery of, the Aircraft, subject to. the terms and conditions in this Agreement.

 

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2 - SPECIFICATION

 

2.1 Specification Documents

 

2.1.1 The A319 Aircraft will be manufactured in accordance with the A319 Specification. The A320 Aircraft will be manufactured in accordance with the A320 Specification. The A321 Aircraft will be manufactured in accordance with the A321 Specification.

 

2.1.2 Specification Change Notice

The Specifications may be amended by execution by Buyer and Seller of a Specification Change Notice (SCN) in substantially the form set out in Exhibit B-1 hereto. An SCN will set out the SCN’s effectivity and the particular change to be made to the Specifications and the effect, if any, of such change on design, performance, weight, Delivery Date of the Aircraft affected thereby, interchangeability or replaceability requirements of the Specification and text of the Specification. An SCN may result in an adjustment of the Base Price of the Aircraft, which adjustment if any, will be specified in the SCN.

 

2.1.3 Manufacturer Specification Change Notice

The Specifications may also be amended in writing by the Seller by a Manufacturer’s Specification Change Notice (MSCN). Each MSCN will be substantially in the form set out in Exhibit B-2 hereto and will set out the MSCN’s effectivity and the particular change to be made to the Specifications and the effect, if any, of such change on design, performance, weight, Delivery Date of the Aircraft affected thereby, interchangeability or replaceability requirements of the Specification and text of the Specification. MSCNs will be subject to the Buyer’s acceptance.

 

2.1.4 Development Changes

Changes may be made by the Seller without the Buyer’s consent by a Manufacturer’s Information Document (MID) when changes to the Aircraft are deemed by the Seller to be necessary to improve the Aircraft affected thereby, prevent delay or ensure compliance with this Agreement (“Development Changes”) and such Development Changes do not adversely affect price, Delivery Date, design life, weight or performance of the Aircraft affected thereby, interchangeability or replaceability requirements.

 

2.2 Propulsion Systems

The Airframe will be equipped with the Propulsion Systems. If the Buyer has not selected the Propulsion Systems as of the date of this Agreement, such choice shall be made *****.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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2.3 Customization Milestones Chart

Within fifteen (15) days after signature of the Agreement, the Seller will provide the Buyer with a customization milestones chart, defining the lead times before Delivery needed for agreeing on items requested by the Buyer from the Standard Specifications and Configuration Guides CD-ROM (the “Customization Milestone Chart”).

 

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3 - PRICE

 

3.1 Base Price of the Aircraft

 

3.1.1 The Base Price of each applicable Aircraft is the sum of:

 

  (i) the Base Price of the applicable Airframe

 

  (ii) the Base Price of the applicable Propulsion Systems for the Aircraft.

 

3.1.1.2 Base Price of the Airframe

 

3.1.1.2.1 A319 Airframe

The Base Price of the A319 Airframe is the sum of the Base Prices set forth below in (i) and (ii):

 

  (i) the Base Price of the A319 Airframe , as defined in the A319 Standard Specification (excluding Buyer Furnished Equipment and SCNs), at delivery conditions prevailing in January 2003, is:

 

       *****

 

  (ii) the Base Price of any and all SCNs for the A319 Aircraft mutually agreed upon prior to the signature of this Agreement and set forth in Exhibit B-1 hereto, at delivery conditions prevailing in January 2003, is:

 

       *****

 

3.1.1.2.2 A320 Airframe

The Base Price of the A320 Airframe is the sum of the Base Prices set forth below in (i) and (ii):

 

  (i) the Base Price of the A320 Airframe , as defined in the A320 Standard Specification (excluding Buyer Furnished Equipment and SCNs), at delivery conditions prevailing in January 2003, is:

 

       ***** and

 

  (ii) the Base Price of any and all SCNs for the A320 Aircraft mutually agreed upon prior to the signature of this Agreement and set forth in Exhibit B-1 hereto, including *****, is:

 

       *****

 

3.1.1.2.3 A321 Airframe

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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  The Base Price of the A321 Airframe is the sum of the Base Prices set forth below in (i) and (ii):

 

  (i) the Base Price of the A321 Airframe, as defined in the A321 Standard Specification (excluding Buyer Furnished Equipment and SCNs), at delivery conditions prevailing in January 2003, is:

***** and

 

  (ii) the Base Price of any and all SCNs for the A321 Aircraft mutually agreed upon prior to the signature of this Agreement and set forth in Exhibit B-1 hereto, at delivery conditions prevailing in January 2003, is:

*****

 

3.1.1.3 Base Price of the Propulsion Systems

 

3.1.1.3.1 A319 Propulsion Systems

 

     The Base Price of the IAE V2524-A5 Propulsion Systems, at delivery conditions prevailing in January 2003, is:

 

     *****

 

     Said Base Price has been calculated from the Reference Price for the A319 Propulsion Systems indicated by International Aero Engines of ***** in accordance with delivery conditions prevailing in January 2001.

 

3.1.1.3.2 A320 Propulsion Systems

 

     The Base Price of the Propulsion Systems IAEV2527-A5, at delivery conditions prevailing in January 2003, is:

 

     *****

 

     Said Base Price has been calculated from the Reference Price for the A320 Propulsion Systems indicated by International Aero Engines of ***** in accordance with delivery conditions January 2001.

 

3.1.1.3.3 A321 Propulsion Systems

 

     The Base Price of the IAEV2533-A5 Propulsion Systems for the A321 Aircraft, at delivery conditions prevailing in January 2003, is:

 

     *****

 

   Said Base Price has been calculated from the Reference Price for the A321 Propulsion Systems indicated by International Aero Engines of US $***** in accordance with delivery conditions January 2001.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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3.2 Final Contract Price

 

3.2.1 The Final Contract Price of an A319 Aircraft will be the sum of:

 

  (i) the Base Price of the A319 Airframe, as adjusted to the Delivery Date of such A319 Aircraft in accordance with the Seller Price Revision Formula;

 

  (ii) the price of any SCNs for the A319 Aircraft entered into after the date of signature of this Agreement, as adjusted to the Delivery Date of such A319

Aircraft in accordance with the Seller Price Revision Formula;

 

  (iii) the Reference Price of the A319 Propulsion Systems constituting a part of such A319 Aircraft, as adjusted to the Delivery Date of such A319 Aircraft in accordance with the Propulsion Systems Price Revision Formula; and

 

  (iv) any other amount resulting from any other provisions of this Agreement and/or any other written agreement between the Buyer and the Seller relating to the A319 Aircraft.

 

3.2.2 The Final Contract Price of an A320 Aircraft will be the sum of:

 

  (i) the Base Price of the A320 Airframe, as adjusted to the Delivery Date of such A320 Aircraft in accordance with the Seller Price Revision Formula;

 

  (ii) the price of any SCNs for the A320 Aircraft entered into after the date of signature of this Agreement, as adjusted to the Delivery Date of such A320

Aircraft in accordance with the Seller Price Revision Formula;

 

  (iii) the Reference Price of the A320 Propulsion Systems constituting a part of such A320 Aircraft, as adjusted to the Delivery Date of such A320 Aircraft in accordance with the Propulsion Systems Price Revision Formula; and

 

  (iv) any other amount resulting from any other provisions of this Agreement and/or any other written agreement between the Buyer and the Seller relating to the A320 Aircraft.

 

3.2.3 The Final Contract Price of an A321 Aircraft will be the sum of

 

  (i) the Base Price of the A321 Airframe, as adjusted to the Delivery Date of such A321 Aircraft in accordance with the Seller Price Revision Formula;

 

  (ii) the price of any SCNs for the A321 Aircraft entered into after the date of signature of this Agreement, as adjusted to the Delivery Date of such A321

Aircraft in accordance with the Seller Price Revision Formula;

 

  (iii) the Reference Price of the A321 Propulsion Systems constituting a part of such A321 Aircraft, as adjusted to the Delivery Date of such A321 Aircraft in accordance with the Propulsion Systems Price Revision Formula; and

 

  (iv) any other amount resulting from any other provisions of this Agreement and/or any other written agreement between the Buyer and the Seller relating to the A321 Aircraft.

 

3.3 Taxes, Duties and Imposts

 

3.3.1 *****

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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3.3.2 *****

 

3.3.3 *****

 

3.3.4 *****

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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4 - PRICE REVISION

 

4.1 Seller Price Revision Formula

The Base Prices of the Airframe and of SCNs are subject to revision up to and including the Delivery Date, in accordance with the Seller Price Revision Formula.

 

4.2 Propulsion Systems Price Revision

The Propulsion Systems Reference Price is subject to revision in accordance with the Propulsion Systems Price Revision Formula up to and including the Delivery Date.

 

4.2.2 Modification of Propulsion Systems Reference Price and Propulsion Systems Price Revision Formula

The Propulsion Systems Reference Price, the prices of the related equipment and the Propulsion Systems Price Revision Formula are based on information received from the Propulsions Systems manufacturer and are subject to amendment by the Propulsion Systems manufacturer at any time prior to Delivery. If the Propulsion Systems manufacturer makes any such amendment, the amendment will be automatically incorporated into this Agreement and the Propulsion Systems Reference Price, the prices of the related equipment and the Propulsion Systems Price Revision Formula will be adjusted accordingly. The Seller agrees to notify the Buyer as soon as the Seller receives notice of any such amendment from the Propulsion Systems manufacturer.

 

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5 - PAYMENT TERMS

 

5.1 The Buyer will pay the Predelivery Payments, the Balance of the Final Contract Price and any other amount due hereunder in immediately available funds in United States dollars to Credit Lyonnais, New York Branch, for transfer by Credit Lyonnais to the Seller’s account with Credit Lyonnais at 1, Esplanade Compans Caffarelli, 31000 Toulouse, France, or to such other account as may be designated by the Seller in writing to the Buyer.

 

5.2 Predelivery Payments

 

5.2.1 Predelivery Payments will be paid by the Buyer to the Seller for each Aircraft. Predelivery payments are nonrefundable (although amounts equal to Predelivery Payments may be paid to the Buyer under Clause 10.4 and 11.3 of this Agreement). The aggregate Predelivery Payment amount is ***** of the Predelivery Payment Reference Price defined below in Clause 5.2.2.

 

5.2.2 The Predelivery Payment Reference Price is defined as:

 

     *****

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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5.2.3 Predelivery Payments will be paid according to the following schedule.

 

Payment Date

        Percentage of Predelivery
Payment
Reference Price
*****    *****    *****

All Predelivery Payments that are due on signature of this Agreement will be paid at signature of this Agreement.

 

5.2.4 ***** The Seller will be under no obligation to segregate any Predelivery Payment, or any amount equal thereto, from the Seller’s funds generally.

 

5.2.5 SCN Predelivery Payment

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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*****

 

5.3 Initial Payment

The Seller acknowledges that it has received from the Buyer the sum of US ***** (the “Initial Payment”). *****

 

5.4 Payment of Balance of the Final Contract Price

Concurrent with the each Delivery, the Buyer will pay to the Seller the Balance of the Final Contract Price for such Aircraft. The Seller’s receipt of the full amount of all Predelivery Payments and of the Balance of the Final Contract Price, including any amounts due under Clause 5.6, will be a condition precedent to the Seller’s obligation to deliver such Aircraft to the Buyer.

 

5.5 Payment Setoff

 

     *****

 

5.6 Overdue Payments

 

     *****

 

5.7 Proprietary Interest

Notwithstanding any provision of law to the contrary, the Buyer will not, by virtue of anything contained in this Agreement (including, without limitation, any Predelivery Payments hereunder, or any designation or identification by the Seller of a particular Aircraft as an Aircraft to which any of the provisions of this Agreement refers) acquire any proprietary, insurable or other interest whatsoever in any Aircraft before Delivery of and payment of the Balance of the Final Contract Price for such Aircraft, as provided in this Agreement

 

5.8 Payment in Full

*****

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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6 - INSPECTION

 

6.1 Inspection Procedures

 

6.1.1 All work to be carried out on the Aircraft and all materials and parts thereof will be open to inspection during business hours by duly authorized representatives of the Buyer or its designee at the respective works of the Associated Contractors and, subject to coordination and agreement with their relevant subcontractors, at the works of such respective subcontractors. The representatives will have access to such relevant technical data as are reasonably necessary for this purpose (except that, if access to any part of the respective works where construction is in progress or materials or parts are stored is restricted for security reasons, the Associated Contractors will be allowed a reasonable time to make the items available for inspection elsewhere). The actual detailed inspection of the Aircraft, materials and parts thereof will take place only in the presence of the respective inspection department personnel of the Associated Contractors or their subcontractors. The procedures for such inspections will be agreed on with the Buyer before any inspection.

 

6.1.2 All inspections, examinations and discussions with the Seller’s, the Associated Contractors’ or their respective subcontractors’ engineering or other personnel by the Buyer and its representatives will be performed in such a manner as not to delay or hinder either the work to be carried out on the Aircraft or the proper performance of this Agreement. In no event will the Buyer or its representatives be permitted to inspect any aircraft other than the Aircraft.

 

6.2 Representatives

For the purposes of Clause 6.1 above, starting at a mutually agreed date until Delivery of the last Aircraft, the Seller will furnish free-of-charge secretarial assistance (both in English and the local language), suitable space, office equipment and facilities in or conveniently located with respect to the Delivery Location for the use of not more than four (4) representatives of the Buyer (or more as may be reasonably required for limited periods) during the aforementioned period. *****

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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7 - CERTIFICATION

Except as set forth in this Clause 7, the Seller will not be required to obtain any certificate or approval with respect to the Aircraft.

 

7.1 Type Certification

The Aircraft have been type certificated under EASA procedures for joint certification in the transport category. The Seller will obtain or cause to be obtained an FAA type certificate (the “Type Certificate”) to allow the issuance of the Export Certificate of Airworthiness.

 

7.2 Export Certificate of Airworthiness

Subject to the provisions of Clause 7.3, each Aircraft will be delivered to the Buyer with an Export Certificate of Airworthiness issued by the DGAC, or the LBA, as applicable, and in a condition enabling the Buyer (or an eligible person under then applicable law) to obtain at the time of Delivery a Standard Airworthiness Certificate issued pursuant to Part 21 of the US Federal Aviation Regulations, and a Certificate of Sanitary Construction issued by the U.S. Public Health Service Food and Drug Administration. However, the Seller will have no obligation, whether before, at or after Delivery of any Aircraft, to make any alterations (including all related costs) to such Aircraft to enable such Aircraft to meet FAA or U.S. Department of Transportation requirements for specific operation on the Buyer’s routes, except as may be provided for in this Agreement.

If the FAA requires a modification to comply with additional aircraft import requirements and/or supply of additional data before the issuance of the Export Certificate of Airworthiness, the parties hereto will sign an SCN for such modification which, the Seller will incorporate as specified in such modification and/or the Seller will provide such data, in either case, at costs to be borne by the Buyer.

 

7.3 Specification Changes Before Delivery

 

7.3.1 If, any time before the date on which the Aircraft is Ready for Delivery, any law, rule or regulation is enacted, promulgated, becomes effective and/or an interpretation of any law, rule or regulation is issued by the EASA that requires any change to the Specification for the purposes of obtaining the Export Certificate of Airworthiness (a “Change in Law”), the Seller will make the required modification and the parties hereto will sign an SCN.

 

7.3.2 The Seller will as far as practicable, but at its sole discretion, take into account the information available to it concerning any proposed law, rule or regulation or interpretation that could become a Change in Law, in order to minimize the costs of changes to the Specification as a result of such proposed law, regulation or interpretation becoming effective.

 

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7.3.3 *****

 

7.3.4 Notwithstanding the provisions of Clauses 7.3.3 (i).and (ii), if a Change in Law relates to an item of BFE or to the Propulsion Systems (and, in particular, to engine accessories, quick engine change units or thrust reversers) the costs will be borne in accordance with such arrangements as may be made separately between the Buyer and the manufacturer of the BFE or the Propulsion Systems, as applicable, and the Seller will have no obligation with respect thereto.

 

7.4 Specification Changes After Delivery

Nothing in Clause 7.3 will require the Seller to make any changes or modifications to, or to make any payments or take any other action with respect to, any Aircraft that is Ready for Delivery before the compliance date of any law or regulation referred to in Clause 7.3. Any such changes or modifications made to an Aircraft after it is Ready for Delivery will be at the Buyer’s expense.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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8 - TECHNICAL ACCEPTANCE

 

8.1 Technical Acceptance Process

 

8.1.1 Prior to Delivery, the Aircraft will undergo a technical acceptance process developed by the Seller (the “Technical Acceptance Process”). Successful completion of the Technical Acceptance Process will demonstrate the satisfactory functioning of the Aircraft and will be deemed to demonstrate compliance with the applicable Specification. Should the Aircraft fail to complete the Technical Acceptance Process satisfactorily, the Seller will without hindrance from the Buyer be entitled to carry out any necessary changes and, as soon as practicable thereafter, resubmit the Aircraft to the Technical Acceptance Process.

 

8.1.2 The Technical Acceptance Process Will

 

  (i) start on a date notified by the Seller to the Buyer at least ten (10) Working Days in advance,

 

  (ii) take place at the Delivery Location.

 

  (iii) be carried out by the personnel of the Seller, subject to 8.2.2 below,

 

  (iv) include a technical acceptance flight and

 

  (v) normally be expected to conclude in five (5) Working Days.

 

8.2 Buyer’s Attendance

 

8.2.1 The Buyer or its permitted assignee is entitled to attend and observe the Technical Acceptance Process.

 

8.2.2 If the Buyer or its permitted assignee attends the Technical Acceptance Process, the Buyer

 

  (i) will comply with the reasonable requirements of the Seller, with the intention of completing the Technical Acceptance Process within five (5) Working Days, and

 

  (ii) may have a maximum of four (4) of its representatives (no more than three (3) of whom will have access to the cockpit at any one time) accompany the Seller’s representatives on the technical acceptance flight, during which the Buyer’s representatives will comply with the instructions of the Seller’s representatives.

 

8.2.3

If the Buyer does not attend (other than as a result of Seller’s failure to notify the Buyer as required in Clause 8.1.2(i)) or fails to cooperate in the Technical Acceptance Process, the Seller will be entitled to complete the Technical

 

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Acceptance Process in compliance with Clause 8.1.1., without the Buyer’s attendance, and the Buyer will be deemed to have accepted that the Aircraft is functioning satisfactorily and is in compliance with the Specification, in all respects.

 

8.3 Certificate of Acceptance

Upon successful completion of the Technical Acceptance Process, the Buyer will, on or before the Delivery Date, sign and deliver to the Seller a certificate of acceptance in respect of the Aircraft in the form of Exhibit D (the “Certificate of Acceptance”) hereto.

 

8.4 Finality of Acceptance

The Buyer’s signature of the Certificate of Acceptance for the Aircraft will constitute waiver by the Buyer of any right it may have under the Uniform Commercial Code as adopted by the State of New York or otherwise to revoke acceptance of the Aircraft for any reason, whether known or unknown to the Buyer at the time of acceptance.

 

8.5 Aircraft Utilization

The Seller will, without payment or other liability, be entitled to use the Aircraft before Delivery to obtain the certificates required under Clause 7. Such use will not prejudice the Buyer’s obligation to accept Delivery hereunder.

 

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9 - DELIVERY

 

9.1 Delivery Schedule

 

9.1.1 Subject to Clauses 2, 7, 8, 10 and 18, the Seller will have the Firm Aircraft Ready for Delivery at the Delivery Location within the following months (each a “Scheduled Delivery Month”).

The Scheduled Delivery Months for the A319 Firm Aircraft are as follow:

 

Quantity of A319 Firm Aircraft

  

Month/Year of Delivery

1 Aircraft

  

*****

1 Aircraft

  

*****

2 Aircraft

  

*****

2 Aircraft

  

*****

2 Aircraft

  

*****

1 Aircraft

  

*****

1 Aircraft

  

*****

1 Aircraft

  

*****

The Scheduled Delivery Months for the A321 Firm Aircraft are as follow:

 

Quantity of A321 Firm Aircraft

  

Month/Year of Delivery

1 Aircraft

  

*****

1 Aircraft

  

*****

2 Aircraft

  

*****

 

9.1.2. Delivery Notices

 

9.2 The Buyer will send its representatives to the Delivery Location to take Delivery within seven (7) Working Days after the date on which the Aircraft is Ready for Delivery.

 

9.2.1 The Seller will transfer title to the Aircraft to the Buyer free and clear of all liens, charges, hypothecations, mortgages and other encumbrances, provided that the Balance of the Final Contract Price has been paid by the Buyer pursuant to Clause 5.4 and that the Certificate of Acceptance bas been signed and delivered to the Seller pursuant to Clause 8.3. The Seller will provide the Buyer with a bill of sale in the form of Exhibit E hereto and/or such other documentation confirming transfer of title and receipt of the Final Contract Price as may reasonably be requested by the Buyer. Property interest in and risk of loss of or damage to the Aircraft will also be transferred to the Buyer on Delivery.

 

9.2.2 If, when the Aircraft is Ready for Delivery, the Buyer falls to (i) deliver the signed Certificate of Acceptance to the Seller on or before the Delivery Date, or (ii) pay the Balance of the Final Contract Price for the Aircraft to the Seller on the Delivery Date, then the Buyer will be deemed to have rejected Delivery without warrant when the Aircraft was duly tendered to the Buyer hereunder. If the Buyer rejects the Aircraft without warrant the Seller will retain title to the Aircraft and the Buyer will indemnify and hold the Seller harmless against any and all actual costs, resulting from the Buyer’s rejection. These rights of the Seller will be in addition to the Seller’s other rights and remedies in this Agreement. It is understood that, while the Seller will use commercially reasonable efforts to store, park; or otherwise protect the Aircraft, the Seller will in no event be liable for any loss or damage to the Aircraft following Buyer’s rejection.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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9.3 Flyaway

 

9.3.1 The Buyer and the Seller will cooperate to obtain any licenses that may be required by the relevant Aviation Authority for the purpose of exporting the Aircraft.

 

9.3.2 All expenses of, or connected with, flying the Aircraft from the Delivery Location after Delivery will be borne by the Buyer. The Buyer will make direct arrangements with the supplying companies for the fuel and oil required for all post-Delivery flights.

 

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10 - EXCUSABLE DELAY AND TOTAL LOSS

 

10.1 Scope of Excusable Delay

Neither the Seller, the Manufacturer, the Associated Contractors, nor any Affiliate of any of the foregoing, will be responsible for or be deemed to be in default on account of delays in delivery, of or failure to deliver an Aircraft or otherwise in the performance of this Agreement or any part hereof due to causes reasonably beyond the Seller’s, the Manufacturer’s or any Associated Contractor’s control or not occasioned by the Seller’s, the Manufacturer’s or any Associated Contractor’s fault or negligence (“Excusable Delay”), including, but not limited to: (i) acts of God or the public enemy, natural disasters, fires, floods, storms beyond ordinary strength, explosions or earthquakes; epidemics or quarantine restrictions; serious accidents; total or constructive total loss; any law, decision, regulation, directive or other act (whether or not having the force of law) of any government or of the Council of the European Community or the Commission of the European Community or of any national, Federal, State, municipal or other governmental department, commission, board, bureau, agency, court or instrumentality, domestic or foreign; governmental priorities, regulations or orders affecting allocation of materials, facilities or a completed Aircraft; war, civil war or warlike operations, terrorism, insurrection or riots; failure of transportation; strikes or labor troubles causing cessation, slow down or interruption of work; delay in obtaining any airworthiness or type certification; inability after due and timely diligence to procure materials, accessories, equipment or parts; general hindrance in transportation; or failure of a subcontractor or Supplier to furnish materials, components, accessories, equipment or parts; (ii) any delay caused directly or indirectly by the action or inaction of the Buyer; and (iii) delay in delivery or otherwise in the performance of this Agreement by the Seller due in whole or in part to any delay in or failure of the delivery of, or any other event or circumstance relating to, the Propulsion Systems or Buyer Furnished Equipment

 

10.2 Consequences of Excusable Delay

 

10.2.1 If an Excusable Delay occurs the Seller will

 

  (i) notify the Buyer of such Excusable Delay as soon as practicable after becoming aware of the same;

 

  (ii) not be deemed to be in default in the performance of its obligations hereunder as a result of such Excusable Delay;

 

  (iii) not be responsible for any damages arising from or in connection with such Excusable Delay suffered or incurred by the Buyer;

 

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  (iv) as soon as practicable after the removal of the cause of the delay resume performance of its obligations under this Agreement and in particular will notify the Buyer of the revised Scheduled Delivery Month.

 

10.3 Termination on Excusable Delay

 

10.3.1 *****

 

10.3.2 *****

 

10.3.3 *****

 

10.4 Total Loss, Destruction or Damage

If, prior to Delivery, any Aircraft is lost, destroyed or in the reasonable opinion of the Seller is damaged beyond economic repair (“Total Loss”), the Seller will notify the Buyer to this effect within ***** month of such occurrence. The Seller will include in said notification (or as soon after the issue of the notice as such information becomes available to the Seller) the earliest date consistent with the Seller’s other commitments and production capabilities that an aircraft to replace the Aircraft may be delivered to the Buyer and the Scheduled Delivery Month will be extended as specified in the Seller’s notice to accommodate the delivery of the replacement aircraft; provided, however, that if the Scheduled Delivery Month is extended to a month that is more than ***** after the last day of the original Scheduled Delivery Month *****

 

  (i) the Buyer notifies the Seller within one (1) month of the date of receipt of the Seller’s notice that it desires the Seller to provide a replacement aircraft during the month quoted in the Seller’s notice; and

 

  (ii) the parties execute an amendment to this Agreement recording the variation in the Scheduled Delivery Month.

Nothing herein will require the Seller to manufacture and deliver a replacement aircraft if such manufacture would require the reactivation of its production line for the model or series of aircraft which includes the Aircraft.

*****

 

10.6 REMEDIES

THIS CLAUSE 10 SETS FORTH THE SOLE AND EXCLUSIVE REMEDY OF THE BUYER FOR DELAYS IN DELIVERY OR FAILURE TO DELIVER, OTHER THAN SUCH DELAYS AS ARE COVERED BY CLAUSE 11, AND THE BUYER HEREBY WAIVES ALL RIGHTS TO WHICH IT WOULD OTHERWISE BE ENTITLED IN RESPECT THEREOF, INCLUDING, WITHOUT LIMITATION, ANY RIGHTS TO INCIDENTAL AND CONSEQUENTIAL DAMAGES OR SPECIFIC PERFORMANCE. THE BUYER WILL NOT BE ENTITLED TO CLAIM THE REMEDIES AND RECEIVE THE BENEFITS PROVIDED IN THIS CLAUSE 10 WHERE THE DELAY REFERRED TO IN THIS CLAUSE 10 IS CAUSED BY THE NEGLIGENCE OR FAULT OF THE BUYER OR ITS REPRESENTATIVES.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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11 - INEXCUSABLE DELAY

 

11.1 Liquidated Damages

Should an Aircraft not be Ready for Delivery within ***** days after the last day of the Scheduled Delivery Month (as such month may be changed pursuant to Clauses 2, 7 or 10) and such delay is not the result of an Excusable Delay or Total Loss, then such delay will be termed an “Inexcusable Delay.” In the event of an Inexcusable Delay, the Buyer will have the right to claim, and the Seller will pay the Buyer liquidated damages of ***** for each day of delay in the Delivery, starting ***** following the scheduled delivery date within the Scheduled Delivery Month (or if no such date has been set the last day of the Scheduled Delivery Month).

The amount of liquidated damages will in no event exceed the total of US ***** in respect of any one Aircraft.

The Buyer’s right to liquidated damages in respect of an Aircraft is conditioned on the Buyer’s submitting a written claim for liquidated damages to the Seller not later than ***** after the last day of the Scheduled Delivery Month.

 

11.2 Renegotiation

If, as a result of an Inexcusable Delay, Delivery does not occur within ***** after the last day of the Scheduled Delivery Month, the Buyer will have the right, exercisable by written notice to the Seller given between ***** after such *****, to require from the Seller a renegotiation of the Scheduled Delivery Month for the affected Aircraft. Unless otherwise agreed between the Seller and the Buyer during such renegotiation, said renegotiation will not prejudice the Buyer’s right to receive liquidated damages in accordance with Clause 11.

 

11.3 Termination

*****

 

11.4 Setoff Payments

Notwithstanding anything to the contrary contained herein, before being required to make any payments under Clauses 11.1 or 11.3 above, the Seller will have the right to apply any and all sums previously paid by the Buyer to the Seller with respect to a terminated Aircraft to the payment of any other amounts the Buyer owes to the Seller or any Affiliate thereof under any agreement between them.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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11.5 REMEDIES

THIS CLAUSE 11 SETS FORTH THE SOLE AND EXCLUSIVE REMEDY OF THE BUYER FOR DELAYS IN DELIVERY OR FAILURE TO DELIVER, OTHER THAN SUCH DELAYS AS ARE COVERED BY CLAUSE 10, AND THE BUYER HEREBY WAIVES ALL RIGHTS TO WHICH IT WOULD OTHERWISE BE ENTITLED IN RESPECT THEREOF, INCLUDING WITHOUT LIMITATION ANY RIGHTS TO INCIDENTAL AND CONSEQUENTIAL DAMAGES, OR SPECIFIC PERFORMANCE.

 

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12 - WARRANTIES AND SERVICE LIFE POLICY

The Seller represents and warrants that the Manufacturer has provided to the Seller the following Warranty, Service Life Policy, Supplier Warranties and Interface Commitment with respect to the Aircraft, that are reproduced below between the words QUOTE and UNQUOTE and are subject to the terms, conditions, limitations and restrictions (including, but not limited to, the Exclusivity of Warranties and General Limitations of Liability and Duplicate Remedies provisions) as hereinafter set out, and that the same are in full force and effect and have not been amended. The Seller hereby assigns to the Buyer, and the Buyer hereby accepts, all of the Seller’s rights and obligations as the “Buyer” under the said Warranty, Service Life Policy, Supplier Warranties and Interface Commitment, and the Seller subrogates the Buyer to all such rights and obligations in respect of the Aircraft. The Seller hereby warrants to the Buyer that (i) it has all requisite authority to make the foregoing assignment to and to effect the foregoing subrogation in favor of the Buyer, (ii) such assignment and subrogation are effective to confer on the Buyer all of the foregoing rights and obligations of the Seller, and (iii) the Seller will not enter into any amendment of the provisions so assigned without the prior written consent of the Buyer.

It is understood that, in the provisions below between the words QUOTE and UNQUOTE, capitalized terms have the meanings assigned thereto in this Agreement, except that (i) the term “Seller,” which means the Manufacturer as between the Manufacturer and the Seller, also means the Manufacturer in this Agreement, and (ii) the term “Buyer,” which means the Seller as between the Manufacturer and the Seller, means the Buyer in this Agreement.

QUOTE

 

12.1 WARRANTY

 

12.1.1 Nature of Warranty

Subject to the limitations and conditions hereinafter provided, and except as provided in Clause 12.1.2, the Seller warrants to the Buyer that each Aircraft and each Warranted Part will at the time of Delivery to the Buyer be free from defects:

 

  (i) in material,

 

  (ii) in workmanship, including, without limitation, processes of manufacture,

 

  (iii) in design (including, without limitation, selection of materials) having regard to the state of the art at the date of such design, and

 

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  (iv) arising from failure to conform to the Specification, except as to those portions of the Specification that are expressly stated in the Specification to be estimates or approximations or design aims.

 

     For the purposes of this Agreement, the term “Warranted Part” will mean any Seller proprietary component, equipment, accessory or part, which is installed on an Aircraft at Delivery and (a) which is manufactured to the detail design of the Seller or a subcontractor of the Seller and (b) which bears a part number of the Seller at the time of Delivery.

 

12.1.2 Exceptions

 

     The warranties set forth in Clause 12.1.1 will not apply to Buyer Furnished Equipment, Propulsion Systems, or to any component, accessory, equipment or part purchased by the Buyer that is not a Warranted Part, provided, however, that:

 

  (i) any defect in the Seller’s workmanship in respect of the installation of such items in the Aircraft, including any failure by the Seller to conform to the installation instructions of the manufacturers of such items that invalidates any applicable warranty from such manufacturers, will constitute a defect in workmanship for the purpose of this Clause 12.1 and be covered by the warranty set forth in Clause 12.1.1(ii), and

 

  (ii) any defect inherent in the Seller’s design of the installation, considering the state of the art at the date of such design, that impairs the use of such items will constitute a defect in design for the purposes of this Clause 12.1 and be covered by the warranty set forth in Clause 12.1.1(iii).

 

12.1.3 Warranty Periods

 

     The warranties described in Clauses 12.1.1 and 12.1.2 hereinabove will be limited to those defects that become apparent within ***** after Delivery of the affected Aircraft, (the “Warranty Period”).

 

12.1.4 Limitations of Warranty

 

12.1.4.1 The Buyer’s remedy and the Seller’s obligation and liability under Clauses 12.1.1 and 12.1.2 hereinabove are limited to, at the Seller’s expense and option, the repair, replacement or correction of, or the supply of modification kits rectifying the defect to any defective Warranted Part. However, the Seller may furnish a credit to the Buyer for the future purchase of goods and services (not including Aircraft) equal to the price at which the Buyer is then entitled to acquire a replacement for the defective Warranted Part. Unless otherwise agreed, any replacement part shall have no fewer cycles, hours, or less calendar time remaining or be of a lesser modification status than the replaced Warranted Part would have had in the absence of the relevant defect.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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12.1.4.2 If the Seller corrects a defect covered by Clause 12.1.1(iii) that becomes apparent within the Warranty Period set forth in Clause 12.1.3, on the Buyer’s written request the Seller will correct any such defect in any Aircraft that has not already been delivered to the Buyer. The Seller will not be responsible nor deemed to be in default on account of any reasonable delay in Delivery of any Aircraft or otherwise, in respect of performance of this Agreement, due to the Seller’s undertaking to make such correction and, rather than accept a delay in Delivery of any such Aircraft, the Buyer and the Seller may agree to deliver such Aircraft with subsequent correction of the defect by the Buyer at the Seller’s expense, or the Buyer may elect to accept Delivery and thereafter file a Warranty Claim as though the defect had become apparent immediately after Delivery of such Aircraft. The parties shall use all reasonable efforts to minimize any delays.

 

12.1.5 Cost of Inspection

 

12.1.5.1 In addition to the remedies set forth in Clauses 12.1.4.1 at the rates set forth in Clause 12.1.8(v) (b) and 12.1.4.2, the Seller will reimburse the direct labor costs spent by the Buyer in performing inspections of the Aircraft that are conducted:

 

  (i) to determine whether a defect exists in any Warranted Part within the Warranty Period or

 

  (ii) pending the Seller’s provision of a corrective technical solution.

 

12.1.5.2 The above commitment is subject to the following conditions:

 

  (i) the inspections are not performed during a scheduled maintenance check as recommended by the Seller’s Maintenance Planning Document;

 

  (ii) the labor rate for the reimbursements will be the labor rate defined in Clause 12.1.8(v)(b), and

 

  (iii) the hours used to determine such reimbursement will not exceed the Seller’s reasonable estimate of the hours required for such inspections.

 

12.1.6 Warranty Claim Requirements

 

     The Buyer’s remedy and the Seller’s obligation and liability under this Clause 12.1, with respect to each claimed defect, are subject to the following conditions precedent:

 

  (i) the defect becomes apparent within the Warranty Period;

 

  (ii) the Buyer submits to the Seller evidence reasonably satisfactory to the Seller that the claimed defect is due to a matter covered, under the provisions of this Clause 12.1

 

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  (iii) the Buyer returns the Warranted Part claimed to be defective to the repair facilities designated by the Seller as soon as practicable, unless the Buyer elects to repair a defective Warranted Part in accordance with the provisions of Clause 12.1.8,

 

  (iv) the Seller’s receives a “Warranty Claim” substantially complying with the provisions of Clause 12.1.7(v) below.

 

12.1.7 Warranty Administration

The warranties set forth in Clause 12.1 will be administered as hereinafter provided:

 

  (i) Claim Determination

Warranty Claim determination by the Seller will be reasonably based on claim details, reports from the Seller’s regional representative, historical data logs, inspections, tests, findings during repair, defect analysis and other relevant documents and information. If the Seller, acting reasonably, so requests, the Buyer will promptly provide the Seller with all evidence (i.e. maintenance records, logbooks, etc.) available to the Buyer that the defect did not result from any failure of the Buyer to operate and maintain the affected Aircraft or part thereof in accordance with the standards set forth in Clause 12.1.11, or from any act or omission of any third party.

 

  (ii) Transportation Costs

The cost of transporting a Warranted Part claimed to be defective to the facilities designated by the Seller will be borne by the Buyer but shall be reimbursed by the Seller if the Warranted Part is found to be defective.

 

  (iii) Return of an Aircraft

If the Buyer desires to return an Aircraft to the Seller for the repair or correction of a warranted defect, the Buyer will notify the Seller of its desire to do so, and the Seller will, prior to such return, have the right to inspect such Aircraft, and without prejudice to the Seller’s rights hereunder, to repair such Aircraft either at the Buyer’s facilities or at another place reasonably acceptable to the Seller. Return of any Aircraft by the Buyer to the Seller and return of such Aircraft to the Buyer’s facilities will be at the Buyer’s expense.

 

  (iv) On-Aircraft Work by the Seller

If either (a) it is determined that a defect subject to this Clause 12.1 requires the dispatch by the Seller of a working team to the Buyer’s facilities to repair or correct such defect, or (b) the Seller accepts the

 

Spirit Airlines - A320 FAMILY – PA      34   


return of an Aircraft to perform or have performed a repair or correction, then, all costs associated for such work will be borne by the Seller at the labor rate defined in Clause 12.1.8.

 

  (v) Warranty Claim Substantiation

For each claim under this Clause 12.1 the Buyer will give written notice to the Seller that contains at least the data listed below with respect to an Aircraft or Warranted Part, as applicable (“Warranty Claim”). The Buyer will make such Warranty Claim within ***** of discovering the defect giving rise to such Warranty Claim.

 

  (a) Description of the defect and action taken, if any

 

  (b) Date of incident and/or removal

 

  (c) Description of the Warranted Part claimed to be defective

 

  (d) Part number

 

  (e) Serial number (if applicable)

 

  (f) Position on Aircraft, according to Catalog Sequence Number (CSN) of the Illustrated Parts Catalog or Component Maintenance Manual or Structural Repair Manual (as such documents are defined in Clause 14 and Exhibit F hereto), as applicable

 

  (g) Total flying hours or calendar times, as applicable, at the date of appearance of a defect

 

  (h) Time since last shop visit at the date of appearance of defect

 

  (i) Manufacturers serial number (MSN) of the Aircraft and/or its registration number

 

  (j) Aircraft total flying hours and/or number of landings at the date of appearance of defect

 

  (k) Claim number

 

  (l) Date of claim

 

  (m) Date of delivery of an Aircraft or Warranted Part to the Buyer

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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       Warranty Claims are to be addressed as follows:

 

       AIRBUS
       CUSTOMER SERVICES DIRECTORATE
       WARRANTY ADMINISTRATION
       ROND-POINT MAURICE BELLONTE
       B.P. 33
       F-31707 BLAGNAC CEDEX
       FRANCE

 

  (vi) Replacements

Replacements made pursuant to this Clause 12.1 will be made as soon as reasonably practicable, but in any event within the lead time defined in the ANACS Spare Parts Price Catalog. Replaced components, equipment, accessories or parts will become the Seller’s property.

Title to and risk of loss of any Aircraft, component, accessory, equipment or part returned by the Buyer to the Seller will at all times remain with the Buyer, except that (i) when the Seller has custody, possession or control of a returned Aircraft, component, accessory, equipment or part to which the Buyer has title, the Seller will have such responsibility therefor as is chargeable by law to a bailee for hire, but the Seller will not be liable for loss of use, and (ii) title to and risk of loss of a returned component, accessory, equipment or part will pass to the Seller on shipment by the Seller to the Buyer of any item furnished by the Seller to the Buyer as a replacement therefor. Upon the Seller’s shipment to the Buyer of any replacement component, accessory, equipment or part provided by the Seller pursuant to this Clause 12.1, title to and risk of loss of such component, accessory, equipment or part will pass to the Buyer.

 

  (vii) Rejection

The Seller will provide reasonable written substantiation in case of rejection of a Warranty Claim. The Buyer will (a) pay to the Seller reasonable inspection and test charges incurred by the Seller in connection with the investigation and processing of rejected Warranty Claims and (b) the reasonable costs incurred by the Seller, in respect of transportation to the ANACS Spares Center in Ashburn, VA, insurance, and any other reasonable costs associated with the sending of any Warranted Part or any other item, equipment, component or part for which the Seller rejects the Buyer’s Warranty Claim.

 

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  (viii) Inspection

The Seller will have the right to inspect the affected Aircraft and documents and other records relating thereto in the event of any claim under this Clause 12.1.

 

12.1.8 In-house Warranty

 

  (i) Authorization

The Buyer is hereby authorized to repair Warranted Parts, subject to the terms of this Clause 12.1.8 (“In-house Warranty”). When the estimated cost of an In-house Warranty repair exceeds *****, the Buyer will notify the Resident Customer Support Representative, as defined in Clause 15.2.1 herein, of its decision to perform any in-house repairs before such repairs are commenced. The Buyer’s notice will include sufficient detail regarding the defect, estimated labor hours and material to allow the Seller acting reasonably to ascertain the reasonableness of the estimate. The Seller will use reasonable efforts to ensure a prompt response and will not unreasonably withhold or delay authorization. In any event, the Seller will provide to the Buyer status of the Buyer’s request for authorization, within three (3) Working Days after the Seller’s receipt of the Buyer’s request for an authorization.

 

  (ii) Conditions of Authorization

The Buyer will be entitled to the benefits under this Clause 12.1.8 for repair of Warranted Parts:

 

  (a) if the relevant facilities and personnel are certified and/or qualified under applicable FAA regulations to perform the subject repairs;

 

  (b) provided that repairs are to be performed in accordance with the Seller’s written instructions set forth in applicable Technical Data; and

 

  (c) only to the extent specified by the Seller, or, in the absence of the Seller’s specifying, to the extent reasonably necessary to correct the defect, in accordance with the standards set forth in Clause l2.1.11.

 

  (iii) Seller’s Rights

The Seller will have the right to require the return of any Warranted Part, or any part removed therefrom, which is claimed to be defective, if, in the Seller’s reasonable judgment, the nature of the claimed defect requires technical investigation. If a Warranted Part is returned for technical investigation, at the Seller’s request, the related transportation costs shall be borne by the Seller.

The Seller will have the right to have a representative present during the disassembly, inspection and testing of any Warranted Part claimed to be defective, provided accommodating such presence shall not materially delay any such disassembly, inspection and/or testing.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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  (iv) In-house Warranty Claim Substantiation

Claims for In-house Warranty credit will be filed within the time period and will contain the same information required for Warranty Claims as set forth in Clause 12.1.6(v) and in addition will include:

 

  (a) A report of technical findings with respect to the defect

 

  (b) for parts required to remedy the defect

 

  - part numbers,
  - serial numbers (if applicable),
  - description of the parts,
  - quantity of parts,
  - unit price of parts,
  - related Seller’s or third party’s invoices (if any),
  - total price of parts

 

  (c) detailed number of labor hours

 

  (d) In-house Warranty Labor Rate (defined below in Clause 12.1.8(v)(b)), and

 

  (e) total claim value

 

  (v) Credit

The Buyer’s sole remedy, and the Seller’s sole obligation and liability in respect of In-house Warranty claims, will be a credit to the Buyer’s account. The credit to the Buyer’s account will be equal to the sum of the direct labor cost expended in performing a repair and to the direct cost of materials incorporated in the repair. Such costs will be determined as set forth below.

 

  (a) To determine direct labor costs, only the man-hours spent on removal and re-installation, disassembly, inspection, repair, reassembly, and final inspection and test (including flight tests if flight tests are necessary to complete a repair under the In-house Warranty) of the Warranted Part alone will be counted. The hours required for maintenance work concurrently being carried out on the Aircraft or Warranted part, if any, will not be included.

 

  (b)

The hours counted as set forth above will be multiplied by the labor rate below, which is deemed to represent the Buyer’s composite average hourly labor rate (excluding all fringe benefits, premium time allowances, social security charges, business taxes and similar items) paid to the Buyer’s employees or to a third party that the Buyer has authorized to perform the

 

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repair, whose jobs, in both cases, are directly related to the performance of the repair. This labor rate is ***** at economic conditions prevailing in January 2003 (the “In-house Warranty Labor Rate”).

 

       The In-house Warranty Labor Rate is subject to adjustment .annually by multiplying by the ratio ECIn/ECIb. For the purposes of this Clause 12.1.8(v) only, ECIn is equal to the Labor Index defined in the Seller Price Revision Formula hereto for January of the year in which the hours are spent and ECIb is equal to such Labor Index for January 2003.

 

  (c) Direct material costs are determined by the prices at which the Buyer acquired such material, excluding any parts and materials used for overhaul furnished free of charge by the Seller.

 

  (vi) Limitation on Credit

The Buyer will in no event be credited for repair costs (labor and material) for any Warranted Part exceeding ***** of the Seller’s current catalog price for a replacement of such defective Warranted Part or (exceeding those costs that would have resulted if repairs had been carried out at the Seller’s facilities.

The Seller will substantiate these costs in writing on reasonable request by the Buyer.

 

  (vii) Scrapped Material

The Buyer may, with the agreement of the Seller’s Resident Customer Support Representative, scrap any such defective parts that are beyond economic repair and not required for technical evaluation.

If the Buyer does not obtain the agreement of the Seller’s Resident Customer Support Representative to scrap a Warranted Part defective beyond economic repair, then the Buyer will retain such Warranted Part and any defective part removed from a Warranted Part during repair for a period of either ***** after the date of completion of repair or ***** after submission of a claim for In-house Warranty credit relating thereto, whichever is longer. Such parts will be returned to the Seller at Seller’s cost within ***** of receipt of the Seller’s request to that effect.

Scrapped Warranted Parts will be evidenced by a record of scrapped material certified by an authorized representative of the Buyer, which will be kept in the Buyer’s file for the longer of (i) the duration of the Warranty Period or (ii) the period required under the applicable regulations of the Aviation Authority.

 

  (viii) DISCLAIMER OF SELLER LIABILITY FOR BUYER’S REPAIR

 

       THE SELLER WILL NOT BE LIABLE FOR ANY RIGHT, CLAIM OR REMEDY, AND THE BUYER WILL INDEMNIFY THE SELLER AGAINST

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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THE CLAIMS OF ANY THIRD PARTIES FOR LOSSES DUE TO ANY DEFECT, NONCONFORMANCE OR PROBLEM OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH ANY REPAIR OF WARRANTED PARTS UNDERTAKEN BY THE BUYER UNDER THIS CLAUSE 12.1.8 OR ANY OTHER ACTIONS UNDERTAKEN BY THE BUYER UNDER THIS CLAUSE 12.1.8, WHETHER SUCH CLAIM IS ASSERTED IN CONTRACT OR IN TORT, OR IS PREMISED ON ALLEGED, ACTUAL, IMPUTED, ORDINARY OR INTENTIONAL ACTS OR OMISSIONS OF THE BUYER OR THE SELLERUNLESS SUCH CLAIMS ARE BASED SOLELY ON THE INACCURACY OF WRITTEN INSTRUCTIONS OR DESIGNS SUPPLIED BY THE SELLER AND STRICTLY FOLLOWED BY THE BUYER.

 

12.1.9 Warranty Transferability

The warranties provided for in this Clause 12.1 for any Warranted Part will accrue to the benefit of any airline in revenue service other than the Buyer, if the Warranted Part enters into the possession of any such airline as a result of a pooling agreement between such airline and the Buyer, in accordance with the terms, and subject to the limitations and exclusions of, the foregoing warranties and to applicable laws or regulations.

 

12.1.10 Warranty for Corrected, Replacement or Repaired Warranted Parts

Whenever any Warranted Part that contains a defect for which the Seller is liable under Clause 12.1 has been corrected, repaired or replaced pursuant to the terms of this Clause 12, the period of the Seller’s warranty with respect to such corrected, repaired or replacement Warranted Part, whichever may be the case, will be the remaining portion of the original warranty in respect of such corrected, repaired or replacement Warranted Part. If a defect is attributable to a defective repair or replacement by the Buyer, and such defective replacement or repair is not attributable solely to inaccuracies in written instructions or designs supplied by the Seller and strictly followed by the Buyer, a Warranty Claim with respect to such defect will be rejected, notwithstanding any subsequent correction or repair, and will immediately terminate the remaining warranties under this Clause 12.1 in respect of the affected Warranted Part.

 

12.1.11 Standard, Airline Operation - Normal Wear and Tear

The Buyer’s rights under this Clause 12.1 are subject to the Aircraft and each component, equipment, accessory and part thereof being maintained, overhauled, repaired and operated in accordance with standard commercial airline practice, all technical documentation and any other instructions issued by the Seller, the Suppliers or the manufacturer of the Propulsion Systems and all applicable rules, regulations and directives of the relevant Aviation Authorities.

The Seller’s liability under this Clause 12.1 will not extend to normal wear and tear or to

 

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  (i) any Aircraft or component, equipment, accessory or part thereof that has been repaired, altered or modified after Delivery in a manner other than that approved by the Seller;

 

  (ii) any Aircraft or component, equipment, accessory or part thereof that has been operated in what the Buyer knew, or in the exercise of due care, should have known, was in a damaged state; or

 

  (iii) any component, equipment, accessory or part from which all identifying marks such as the trademark, trade name, part or serial number have been removed, such that the origin of the relevant part cannot reasonably be determined,

 

       except that if, in each case (other than in respect of (iii) above) the Buyer submits evidence reasonably acceptable to the Seller that the defect for which warranty coverage is sought did not arise as a result of, or was not materially worsened by, such causes.

 

12.2 SELLER SERVICE LIFE POLICY

 

12.2.1 Scope and Definitions

In addition to the warranties set forth in Clause 12.1 above, the Seller further agrees that should a Failure occur in any Item (as these terms are defined below), then, subject to the general conditions and limitations set forth in Clause 12.2.4 below, the provisions of this Clause 12.2 will apply.

For the purposes of this Clause 12.2, the following definitions will apply:

 

  (i) “Item” means any of the Seller components, equipment, accessories or parts listed in Exhibit C hereto that are installed on an Aircraft at any time during the period of effectiveness of the Service Life Policy as defined below in Clause 12.2.2.

 

  (ii) “Failure” means any breakage of, or defect in, an Item that materially impairs the utility or safety of the Item, provided that (a) any such breakage of, or defect in, any Item did not result from any breakage or defect in any other Aircraft part or component or from any other extrinsic force and (b) has occurred or can reasonably be expected to occur on a repetitive basis.

 

12.2.2 Periods and Seller’s Undertaking

Subject to the general conditions and limitations set forth in Clause 12.2.4 below, the Seller agrees that if a Failure occurs in an Item before the Aircraft in which such Item has been originally installed has completed within ***** after the Delivery of said Aircraft to the Buyer, whichever shall first occur, the Seller will, at its discretion, as promptly as practicable and for a price that reflects the Sellers financial participation as herein after provided:

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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  (i) design and furnish to the Buyer a correction for such Item and provide any parts required for such correction (including Seller designed standard parts but excluding industry standard parts), or

 

  (ii) replace such Item

 

12.2.3 Seller’s Participation in the Cost

 

     Any part or Item that the Seller is required to furnish to the Buyer under this Service Life Policy will be furnished to the Buyer at the Seller’s current sales price therefor, less the Seller’s financial participation, which will be determined in accordance with the following formula:

 

     *****

 

12.2.4 General Conditions and Limitations

 

12.2.4.1 Notwithstanding any provision of this Clause 12.2, during the Warranty Period, all Items will be covered by the provisions of Clause 12.1 of this Agreement and not by the provision of Clause 12.2.

 

12.2.4.2 The Buyer’s remedies and the Seller’s obligations and liabilities under this Service Life Policy are subject to compliance by the Buyer with the following conditions:

 

  (i) The Buyer will maintain log books and other historical records with respect to each Item adequate to enable the Seller to determine whether the alleged Failure is coveted by this Service Life Policy and, if so, to define the portion of the cost to be borne by the Seller in accordance with Clause 12.2.3 above.

 

  (ii) The Buyer will keep the Seller informed of all incidents that are reportable to the FAA or the National Transportation Safety Board (NTSB).

 

  (iii) The conditions of Clause 12.1.11 will have been complied with.

 

  (iv) The Buyer will implement specific structural inspection programs for monitoring purposes as may be established from time to time by the Seller. Such programs will be compatible with the Buyer’s operational requirements and will be carried out at the Buyer’s expense. Reports relating thereto will be regularly furnished to the Seller.

 

  (i) The Buyer will report any breakage or defect in writing to the Seller within sixty (60) days after any breakage or defect in an Item becomes apparent, whether or not the breakage or defect can reasonably be expected to occur in any other Aircraft, and the Buyer will provide the Seller with sufficient detail

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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about the breakage or defect to enable the Seller acting reasonably to determine whether said breakage or defect is subject to this Service Life Policy.

 

12.2.4.3 Except as otherwise provided in this Clause 12.2, any claim under this Service Life Policy will be administered as provided in, and will be subject to the terms and conditions of, Clause 12.1.6.

 

12.2.4.4 If the Seller has issued a service bulletin applicable to an Aircraft, the purpose of which is to avoid a Failure, the Seller may elect to supply the necessary service bulletin free of charge or under a pro rata formula established by the Seller. If such a kit is so offered to the Buyer, then, in respect of such Failure and any Failures that could ensue therefrom, the validity of the Seller’s commitment under this Clause 12.2 will be subject to the Buyer’s incorporating such modification in the relevant Aircraft, within a reasonable time, as promulgated by the Seller and in accordance with the Seller’s instructions.

 

12.2.4.5 THIS SERVICE LIFE POLICY IS NEITHER A WARRANTY, PERFORMANCE GUARANTEE, NOR AN AGREEMENT TO MODIFY ANY AIRCRAFT OR AIRFRAME COMPONENT TO CONFORM TO NEW DEVELOPMENTS OCCURRING IN THE STATE OF AIRFRAME DESIGN AND MANUFACTURING ART. THE SELLER’S OBLIGATION UNDER THIS CLAUSE 12.2 IS TO MAKE ONLY THOSE CORRECTIONS TO THE ITEMS OR FURNISH REPLACEMENTS THEREFOR AS PROVIDED IN THIS CLAUSE 12.2. THE BUYER’S SOLE REMEDY AND RELIEF FOR THE NONPERFORMANCE OF ANY OBLIGATION OR LIABILITY OF THE SELLER ARISING UNDER OR BY VIRTUE OF THIS SERVICE LIFE POLICY WILL BE IN MONETARY DAMAGES, LIMITED TO THE AMOUNT THE BUYER REASONABLY EXPENDS IN PROCURING A CORRECTION OR REPLACEMENT FOR ANY ITEM THAT IS THE SUBJECT OF A FAILURE COVERED BY THIS SERVICE -LIFE POLICY AND TO WHICH SUCH NONPERFORMANCE IS RELATED, LESS THE AMOUNT THAT THE BUYER OTHERWISE WOULD HAVE BEEN REQUIRED TO PAY UNDER THIS CLAUSE 12.2 IN RESPECT OF SUCH CORRECTED OR REPLACEMENT ITEM. WITHOUT LIMITING THE EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS OF LIABILITY PROVISIONS SET FORTH IN CLAUSE 12.5, THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL CLAIMS TO ANY FURTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES, ARISING UNDER OR BY VIRTUE OF THIS SERVICE LIFE POLICY.

 

12.2.4.6 Transferability

 

     The Buyer’s rights under this Clause 12.2 will not be assigned, sold, transferred or otherwise alienated by operation of law or otherwise, except as permitted in Clause 20 of this Agreement.

 

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     Any unauthorized assignment, sale, transfer or other alienation of the Buyer’s rights under this Service Life Policy will, as to the particular Aircraft involved, immediately void this Service Life Policy in its entirety.

 

12.3 SUPPLIER WARRANTIES AND SERVICE LIFE POLICIES

 

12.3.1 Seller’s Support

 

     Before Delivery of the first Aircraft, the Seller will provide the Buyer with the warranties and service life policies that the Seller has obtained pursuant to the Supplier Product Support Agreements.

 

12.3.2 Supplier’s Default

 

12.3.2.1 *****

 

12.3.2.2 *****

 

12.3.2.3 *****

 

12.4 INTERFACE COMMITMENT

 

12.4.1 Interface Problem

 

     If the Buyer experiences any technical problem in the operation of an Aircraft or its systems due to a malfunction, the cause of which, after due and reasonable investigation, is not readily identifiable by the Buyer, but which the Buyer reasonably believes to be attributable to the design characteristics of one or more components of the Aircraft (an “Interface Problem”), the Seller will, if requested by the Buyer, and without additional charge to the Buyer, except for the reasonable cost of transportation

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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of the Seller’s or its designee’s personnel to the Buyer’s facilities, the Buyer will reimburse the Seller for business class air transportation when the Seller’s personnel must travel internationally, and for confirmed coach class fares, on the Buyer’s routes wherever possible for Seller’s personnel traveling domestically and reasonable food and lodging expenses of the representative(s) of Seller, promptly conduct or have conducted an investigation and analysis of such problem to determine, if possible, the cause or causes of the problem and to recommend such corrective action as may be feasible, provided, however, that if the Seller determines, after such due and reasonable investigation, that the Interface Problem was, in the reasonable judgment of the Seller, due to or caused by any act or omission of the Buyer in its performance of its obligations hereunder, the Buyer will pay to the Seller all reasonable costs and expenses incurred by the Seller during such investigation. The Buyer will furnish to the Seller all data and information in the Buyer’s possession relevant to the Interface Problem and will cooperate with the Seller in the conduct of the Seller’s investigations and such tests as may be required. At the conclusion of such investigation the Seller will promptly advise the Buyer in writing of the Seller’s opinion as to the cause or causes of the Interface Problem and the Seller’s recommendations as to corrective action.

 

12.4.2 Seller’s Responsibility

 

     If the Seller determines, in the exercise of good faith and diligence, that the Interface Problem is primarily attributable to the design of a Warranted Part, the Seller will, if requested by the Buyer, correct the design of such Warranted Part, pursuant to the terms and conditions of Clause 12.1.

 

12.4.3 Suppliers Responsibility

 

     If the Seller determines, in the exercise of good faith and diligence, that the Interface Problem is primarily attributable to the design of any Supplier Part, the Seller will at the Buyer’s request, reasonably assist the Buyer in processing any warranty claim the Buyer may have against the manufacturer of such Supplier Part.

 

12.4.4 Joint Responsibility

 

     If the Seller determines, in the exercise of good faith and diligence, that the Interface problem is attributable partially to the design of a Warranted Part and partially to the design of any Supplier Part, the Seller will, if requested by the Buyer, seek a solution to the Interface Problem through cooperative efforts of the Seller and any Supplier involved. The Seller will promptly advise the Buyer of any corrective action proposed by the Seller and any such Supplier. Such proposal will be consistent with any then existing obligations of the Seller hereunder and of any such Supplier to the Buyer. Such corrective action, unless reasonably rejected by the Buyer, will constitute full satisfaction of any claim the Buyer may have against either the Seller or any such Supplier with respect to such Interface Problem.

 

12.4.5 General

 

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12.4.5.1 All requests under this Clause 12.4 will be directed both to the Seller and the affected Suppliers.

 

12.4.5.2 Except as specifically set forth in this Clause 12.4, this Clause 12.4 will not be deemed to impose on the Seller any obligations not expressly set forth elsewhere in this Agreement.

 

12.4.5.3 All reports, recommendations, data and other documents furnished by the Seller to the Buyer pursuant to this Clause 12.4 will be deemed to be delivered under this Agreement and will be subject to the terms, covenants and conditions set forth in this Clause 12 and in Clause 22.5.

 

12.5 *****

 

12.6 DUPLICATE REMEDIES

 

     The remedies provided to the Buyer under this Clause 12 as to my defect in respect of the Aircraft or any part thereof are mutually exclusive and not cumulative. The Buyer will be entitled to the remedy that provides the maximum benefit to it, as the Buyer may elect, pursuant to the terms and conditions of this Clause 12 for any such particular defect for which remedies are provided under this Clause 12; provided, however, that the Buyer will not be entitled to elect a remedy under one part of this Clause 12 that constitutes a duplication of any remedy elected by it under any other part hereof for the same defect. The Buyer’s rights and remedies herein for the nonperformance of any obligations or liabilities, of the Seller arising under these warranties will be in monetary damages limited to the amount the Buyer expends in procuring a correction or replacement for any covered part subject to a defect or nonperformance covered by this Clause 12, and the Buyer will not have any right to require specific performance by the Seller.

UNQUOTE

 

     *****

 

12.7 NEGOTIATED AGREEMENT

 

     The Buyer specifically recognizes that:

 

  (i) the Specifications have been agreed upon after careful consideration by the Buyer using its judgment as a professional operator of, and maintenance provider with respect to, aircraft used in public transportation and as such is a professional within the same industry as the Seller;

 

  (ii) this Agreement, and in particular this Clause 12, has been the subject of discussion and negotiation and is fully understood by the Buyer;

 

  (iii) the price of the Aircraft and the other mutual agreements of the Buyer set forth in this Agreement were arrived at in consideration of, inter alia, the provisions of this Clause 12, specifically including the Exclusivity of Warranties set forth in Clause 12.5.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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13 - PATENT AND COPYRIGHT INDEMNITY

The Seller represents and warrants that the Manufacturer has provided to the Seller the following indemnity against patent and copyright infringements with respect to the Aircraft, subject to the terms, conditions, limitations and restrictions (including, but not limited to, the Exclusivity of Warranties and Duplicate Remedies provisions) as hereinafter set out, and that the same are in full force and effect and have not been amended. The Seller hereby assigns to the Buyer, and the Buyer hereby accepts, all of the Seller’s rights and obligations as the “Buyer” under the said indemnity against patent and copyright infringements, and the Seller subrogates the Buyer to all such rights and obligations in respect of the Aircraft. The Seller hereby warrants to the Buyer that (i) it has all requisite authority to make the foregoing assignment and to effect the foregoing subrogation in favor of the Buyer, (ii) such assignment and subrogation are effective to confer on the Buyer all of the foregoing rights and obligations of the Seller, and (iii) the Seller will not enter into any amendment of the provisions so assigned without the prior written consent of the Buyer.

It is understood that, in the provisions below between the words QUOTE and UNQUOTE, capitalized terms have the meanings assigned thereto in this Agreement, except that (i) the term “Seller,” which means the Manufacturer as between the Manufacturer and the Seller, also means the Manufacturer in this Agreement, and (ii) the term “Buyer,” which means the Seller as between the Manufacturer and the Seller, means the Buyer in this Agreement.

QUOTE

 

13.1 Indemnity

 

13.1.1 *****

 

  (i) *****

 

  (ii) *****

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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  (1) *****

 

  (2) *****

 

  (iii) *****

 

13.1.2 *****

 

  (i) *****

 

  (ii) *****

 

  (iii) *****

 

  (iv) *****

 

13.1.3 *****

 

  (i) *****

 

  (ii) *****

 

13.2 Administration of Patent and Copyright Indemnity Claims

 

13.2.1 If the Buyer receives a written claim or a suit is threatened or begun against the Buyer for infringement of a patent or copyright subject to indemnity under this Clause 13 referred to in Clause 13.1, the Buyer will

 

  (i) promptly, after becoming aware thereof notify the Seller, giving particulars thereof;

 

  (ii) furnish to the Seller all data, papers and records within the Buyer’s control or possession relating to such claim;

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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  (iii) refrain from admitting any liability or making any payment, or assuming any expenses, damages, costs or royalties, or otherwise acting in a manner prejudicial to the defense or denial of the suit or claim, it being agreed that nothing in this Clause 13.2.1(iii) will prevent the Buyer from paying the sums that may be required to obtain the release of the Aircraft, provided that payment is accompanied by a denial of liability and is made without prejudice;

 

  (iv) at the expense of Seller, fully cooperate with, and render all reasonable assistance to, the Seller as may be pertinent to the defense or denial of the suit or claim;

 

  (v) to the extent commercially reasonable, act to mitigate damages and/or to reduce the amount of royalties that may be payable, and act to minimize costs and expenses.

 

13.2.2 The Seller will be entitled either in its own name or on behalf of the Buyer to conduct negotiations with the party or parties alleging infringement and may assume and conduct the defense or settlement of any suit or claim in the manner that, in the Seller’s reasonable opinion, it deems proper. Buyer may participate, at its own expense, with Seller in the defense or appeal of any such suit, claim, or judgment; provided, however, that Seller retain sole control and authority regarding any such defense, compromise, settlement, appeal, or similar action, as set forth in this Clause 13.2.2.

 

13.2.3 The Seller’s liability hereunder will be conditional on the substantial and timely compliance by the Buyer with the terms of this Clause and is in lieu of any other liability to the Buyer, whether express or implied, which the Seller might incur at law as a result of any infringement or claim of infringement of any patent or copyright.

UNQUOTE

*****

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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14 TECHNICAL DATA

 

14.1 Scope

 

     This Clause covers the terms and conditions for the supply of technical data and software services (hereinafter, “Technical Data”) to support operation and maintenance of the Aircraft.

 

14.1.2  Range, form, type, format, ATA/non-ATA compliance, revision, and quantity of the Technical Data are covered in Exhibit F hereto.

 

14.1.3  The Technical Data will be supplied in the English language using aeronautical terminology in common use.

 

14.1.4  The Buyer will not receive credit or compensation for any partially used or unused Technical Data provided pursuant to this Clause 14.

 

14.2 Aircraft Identification for Technical Data

For the Technical Data that is customized to the Aircraft and/or operations listed below, the Buyer agrees to the allocation of Fleet Serial Numbers (FSNs) in the form of a block of numbers selected in the range from 001 to 999.

The sequence will be interrupted only if two (2) different Propulsion Systems or different Aircraft models are selected.

The Buyer will indicate to the Seller the FSNs corresponding to the Aircraft as listed in Clause 9 of this Agreement within forty-five (45) days after execution of this Agreement. The allocation of FSNs to such Aircraft will not constitute any proprietary, insurable or other interest of the Buyer in any Aircraft before delivery of and payment for Aircraft as provided in this Agreement.

For purposes of this Clause 14.2, the customized Technical Data are:

-Aircraft Maintenance Manual and associated products

-Illustrated Parts Catalog

-Trouble Shooting Manual

-Aircraft Wiring Manual

-Aircraft Schematics Manual

-Aircraft Wiring Lists

 

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14.3 Integration of Equipment Data

 

14.3.1 Data On Supplier Equipment

 

     lf necessary for the understanding of the affected systems, information relating to Supplier equipment that is installed on the Aircraft by the Seller will be included free of charge in the basic issue of the customized Technical Data.

 

14.3.2 The Buyer will supply to the Seller, at the Buyer’s expense, the technical data related to Buyer Furnished Equipment, in English, at least ***** before the scheduled delivery of the customized Technical Data. The Seller will incorporate the technical data related to the BFE into the Technical Data basic issue at no additional cost to the Buyer, provided such data is provided in accordance with the conditions set forth in Clauses 14.3.3 through 14.3.6.

 

14.3.3 The BFE data supplied will be in compliance with ATA 100/2200 standard Specification, in the revision applicable to the corresponding Aircraft type. Subsequent revisions will be considered as applicable.

 

14.3.4 The Buyer and the Seller will enter into an agreement with the aim of managing the BFE data integration process (the “Data Supply/Exchange Agreement”.)

 

14.3.5 The BFE data will be delivered in digital format (SGML) and/or in Portable Document Format (PDF).

 

14.3.6 All costs related to the delivery of BFE data to the Seller will be borne by the Buyer.

 

14.4 Delivery

 

14.4.1 The Technical Data and corresponding revisions to be supplied by the Seller will be sent to one address only as advised by the Buyer.

 

14.4.2 Technical Data and revisions will be packed and shipped by the quickest transportation methods reasonably available. Shipment will be Free Carrier (FCA) Toulouse, France, and/or Free Carrier (FCA) Hamburg, Germany.

 

     Reasonable quantities of the Technical Data will be delivered according to a mutually agreed schedule, designed to correspond to Aircraft deliveries. The Buyer will provide no less than ***** notice to the Seller if a change is requested to the delivery schedule for the Technical Data.

 

14.4.3 The Buyer shall be responsible for coordinating with, and satisfying the needs of the Aviation Authorities with respect to the Technical Data.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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14.5 Revision Service

 

     Unless otherwise specifically stated, revision service will be offered ***** after delivery of the last Aircraft. Thereafter, revision service will be provided in accordance with the terms and conditions found in the then current Airbus North America Customer Services Catalog.

 

14.6 Service Bulletin (SB) Incorporation

 

     During the period of revision service and upon the Buyer’s request for incorporation, which will be made within ***** after issuance of a Service Bulletin, Seller’s Service Bulletin information will be incorporated into the Technical Data for the Buyer’s Aircraft, after formal notification by the Buyer of its intention to accomplish a Service Bulletin. The split effectivity for the corresponding Service Bulletin will remain in the Technical Data until notification from the Buyer that embodiment has been completed on all the Buyer’s Aircraft. For the operational Technical Data only, the pre or post Service Bulletin status will be shown.

 

14.7 Future Developments

 

     The Buyer agrees to consider (without obligation) for implementation any new technological development applicable to, and deemed by the Seller to be beneficial and economical for, the production and transmission of data and documents.

 

14.8 Technical Data Familiarization

 

     Upon request by the Buyer, the Seller will provide ***** of Technical Data familiarization training, at the Seller’s or Buyer’s facility. If such familiarization is conducted at the Buyer’s facilities, the Buyer will reimburse the Seller for business class air transportation when the Seller’s personnel must travel internationally, and for confirmed coach class fares, on the Buyer’s routes wherever possible for Seller’s personnel traveling domestically and reasonable food and lodging expenses of the representative(s) of Seller conducting the familiarization training.

 

14.9 Customer Originated Changes

 

14.9.1 Data on Customer Originated Changes (COC) may be incorporated into the following Technical Data customized to the Buyer:

- Aircraft Maintenance Manual and associated products

- Illustrated Parts Catalog

- Trouble Shooting Manual

- Aircraft Wiring Manual

- Aircraft Schematics Manual

- Aircraft Wiring Lists

- Flight Crew Operating Manual

- Quick Reference Handbook

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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14.9.2 COC data will be developed by the Buyer according to the “Guidelines for Customer Originated Changes” issued by the Seller. The Buyer will ensure that any such COC data is in compliance with the requirements of its local Aviation Authorities.

 

     COC data will be incorporated by the Seller in the customized Technical Data listed in Clause 14.9.1 unless the Buyer specifies in writing into which customized Technical Data the Buyer desires that the COC data be incorporated. Following incorporation of the COC data as requested by the Buyer, the relevant customized Technical Data will show only the aircraft configuration that reflects the COC data and not the configuration before incorporation of the COC data.

 

14.9.3 The Buyer hereby acknowledges and accepts that the incorporation of any COC into the Technical Data will be at the Buyer’s sole risk, and the Seller will have no liability whatsoever with respect to: (a) the contents of any COC (including any omissions or inaccuracies therein) (b) any effect that the incorporation of such COC may have on the Technical Data or (c) any costs of any nature that any COC may have on all subsequent Service Bulletins and modifications.

 

     The Seller will not be required to check the accuracy or validity of any COC data submitted for incorporation into the Technical Data.

 

14.9.4 The Buyer will indemnify and hold the Seller harmless from and against any losses (including reasonable attorneys’ fees) arising from claims by any third party for injury, loss or damage incurred directly or indirectly as a result of incorporation of any COC into the Technical Data issued by the Seller.

 

14.9.5 No liability on the part of the Seller will arise, and no obligations of the Buyer under the foregoing Clause 14.9.4 will be reduced, by any communication, whether written or oral, between the Seller and the Buyer with respect to COC data or the incorporation of such data into the Technical Data.

 

14.9.6 The Seller’s costs with respect to the incorporation of any COC will be invoiced to the Buyer under conditions specified in ANACS’ Customer Services Catalog in effect at the time of the Buyer’s request for incorporation.

 

14.10 Software Services

 

14.10.1 Performance Engineer’s Programs

 

     In addition to the standard operation manuals, the Seller will provide to the Buyer Performance Engineer’s Programs (PEPs) under the terms and conditions of the License for use of Software attached as Appendix 1 to Exhibit F hereto (the “Software License”). Use of PEP will be limited to one (1) copy installed on one (l) computer. PEP is intended for use on the ground only and will not be installed on an Aircraft The Seller will provide the Buyer with a three-day installation and review visit regarding the PEPs.

 

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     The Software License for use of PEP will be granted *****. At the expiration of that period, the Buyer will be entitled to continue to use the PEP Software *****, in accordance with the terms and conditions of the then-current Airbus North America Customer Services Catalog.

 

14.10.2 Basic AirN@V

 

     The following Technical Data are provided on DVD (digital video disk) and shall also be governed by the terms and conditions of the Software License:

- Trouble Shooting Manual

- Aircraft Maintenance Manua l

- Illustrated Parts Catalog

 

     From time to time, the Seller may make additional Technical Data available on DVD and may impose other reasonable license conditions with respect thereto.

 

     The Software License for use of Basic AirN@v will be granted *****. At the expiration of that period, the Buyer will be entitled to continue to use the software *****, in accordance with the terms and conditions of the then current Airbus North America Customer Services Catalog.

 

14.10.3 Airbus On-Line Services

 

14.10.3.1 AOLS is a database allowing the Buyer to access a wide range of services through a web portal. AOLS, including a description of those Technical Data that are available through the use of AOLS, are described in Attachment 1 to Appendix 2 to Exhibit F. AOLS described in Paragraph A of such Attachment are available *****.

 

14.10.3.2 The Seller will provide to the Buyer Airbus On-Line Services (“AOLS”) under the terms and conditions of the License Agreement for use of AOLS attached as Appendix 2 to Exhibit F here to (the “AOLS License”) and to the Software License attached as Appendix 1 to Exhibit F. *****

 

14.10.3.3 Those Technical Data that are available through AOLS and individual documents, contained therein will be subject to change, revision and/or replacement from time to time. *****

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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14.11 Warranty

The provisions of Clause 12, including, without limitation, Clause 12.6 (EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS OF LIABILITY), will apply to the Technical Data provided under this Clause 14.

 

14.12 Proprietary Rights

All proprietary rights, including but not limited to patent, design and copyrights, relating to Technical Data will remain with the Seller. Subject to the requirements of Section 14.13, all Technical Data are supplied to the Buyer for the sole use of the Buyer, who undertakes not to divulge the contents thereof to any third party unless permitted by this Agreement or otherwise required pursuant to any governmental or legal requirement imposed on the Buyer.

These proprietary rights will also apply to any translation into a language or languages or media that may have been performed or caused to be performed by the Buyer.

 

14.13 Confidentiality.

The Technical Data and their content are designated as confidential. All such Technical Data are supplied to the Buyer for the sole use of the Buyer who undertakes not to disclose the contents thereof to any third party without the prior written consent of the Seller which consent will not be unreasonably withheld, save as permitted therein or otherwise pursuant to any government or legal requirement imposed upon the Buyer.

In the event that the Buyer is required to divulge the Technical Data pursuant to any governmental or legal requirement, the Buyer shall promptly notify Seller prior to any disclosure so that Seller can assist the Buyer in maintaining the confidentiality of such Technical Data.

The obligations of confidentiality for Technical Data and their contents shall not apply to any Technical Data that Buyer establishes: (a) is generally known to the public at the date of disclosure by Seller to Buyer; or (b) enters the public domain during this Agreement, through no fault of either the Seller or a third party performing technical services for Seller.

 

15 - SELLER REPRESENTATIVES

The Seller will provide or cause to be provided at no charge to the Buyer the services described in this Clause 15, at the Buyer’s main base or at other locations to be mutually agreed.

 

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15.1 Resident Customer Support Representatives

 

15.1.1 The Seller will provide representatives to act in an advisory capacity at the Buyer’s main base or at other locations (“Resident Customer Support Representative”) to be mutually agreed.

 

  (i) *****

 

  (ii) *****

 

15.1.2 The Seller will provide to the Buyer an annual written account of the consumed man-months of Resident Customer Support Representative’s time consumed in the preceding year together with any remaining balance.

 

15.1.3 Should the Buyer request Resident Customer Support Representative time that exceeds the amounts set forth in Clause 15.1.1(ii), the Seller may provide additional service subject to the terms and conditions agreed by the Buyer and the Seller at the time of such request.

 

15.1.4 The Seller will cause similar resident customer support services to be provided by the representatives of the Propulsion System manufacturer and by representatives of the Suppliers when necessary and applicable.

 

15.2 Customer Support Director

 

     The Seller will assign the services of one (l) Customer Support Director based in Herndon, Virginia, to liaise between the Manufacturer and the Buyer on product support matters after signature of this Agreement and for as long as the Buyer operates at least one (1) Aircraft.

 

15.3 *****

 

15.4 Buyer’s Support

 

15.4.1 From the date of arrival of the first Resident Customer Support Representative and Spares Representative and for the duration of the assignment, the Buyer will provide free of charge, suitable office space, office equipment and facilities

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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including, telephone and facsimile connections, for the sole use of the Resident Customer Support Representative(s) in or conveniently near the relevant Buyer’s facilities.

 

15.4.2 In accordance with the Buyer’s regulations, the Buyer will provide ***** to the Seller

 

  (i) airline tickets in business class, confirmed and guaranteed between the site at which the Resident Customer Support Representative services are to be provided and the international airport nearest Toulouse, France, that is on the Buyer’s network for the Resident Customer Support Representative(s) and the Spares Parts Field Representative mentioned in and 15.4, for travel at the beginning and end of the applicable assignment; and

 

  (ii) when said Resident Customer Support Representative(s) are requested by the Buyer to travel from the site to which they are assigned, transportation on coach class basis between the said locations and the place of assignment.

 

15.4.3 The Buyer and the Seller will give each other all necessary reasonable assistance with general administrative functions specific to their respective countries and with procurement of the documents necessary to live and work in such countries.

 

15.5 Temporary Assignment and Withdrawal of Resident Customer Support Representative

 

     The Seller will have the right upon written notice to and communication with the Buyer to transfer or recall any Resident Customer Support Representative(s) on a temporary basis if and for so long as, in the Seller’s reasonable opinion, conditions are dangerous to the Resident Customer Support Representative’s safety or health or prevent the fulfillment of such Resident Customer Support Representative’s contractual tasks. The Buyer will receive credit for the man-days during which any Resident Customer Support Representative is absent from the Buyer’s facility pursuant to this Clause 15.5.

 

15.6 Representatives’ Status

 

     In providing the above technical service, the Seller’s employees, including Resident Customer Support Representative(s), the Spares Representative and the Customer Support Director, are deemed to be acting in an advisory capacity only and at no time will they be deemed to be acting, either directly or indirectly, as the Buyer’s employees or agents.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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16 - TRAINING AND TRAINING AIDS

 

16.1 General

 

     This Clause covers the terms and conditions for the supply of training and training aids for the Buyer’s personnel to support the Aircraft operation.

 

16.2 Scope

 

16.2.1 The range and quantity of training and training aids to be provided free of charge under this Agreement are covered in Appendix A to this Clause 16. The Seller will arrange availability of such training and training aids in relation to the delivery schedule for the Aircraft set forth in Clause 9.1.1.

 

16.2.2 The contractual training courses, defined in Appendix A to this Clause 16, will be provided up to ***** after delivery of the last Aircraft.

 

16.2.3 If the, Buyer uses none or only part of the training or training aids to be provided pursuant to this Clause, no compensation or credit of any sort will be provided.

 

16.3 Training Organization / Location

 

16.3.1 The Seller will provide the training at the Airbus Training Center in Miami, Florida unless otherwise agreed by the Buyer. The Seller will not be liable for any delays in training due to unavailability of facilities or scheduling difficulties in Miami if an alternative training center has been proposed by the Seller and refused by the Buyer.

 

16.3.2 If unavailability of facilities or scheduling difficulties make training by the Seller impractical at the training center listed in Clause 16.3.1, the Seller will notify the Buyer and the parties will discuss alternative arrangements for such training support, described in this Clause 16 at other Seller affiliated training centers located in North America.

 

16.3.3 Upon the Buyer’s request the Seller may also provide certain training at one of the Buyer’s bases, if and when practicable for the Seller, under terms and conditions to be mutually agreed upon. In this event, all additional charges listed in Clause 16.6.2 will be borne by the Buyer.

 

16.4 Training Courses

 

16.4.1 Training courses, as well as the minimum and maximum numbers of trainees per course provided for the Buyer’s personnel, are defined in the Seller’s applicable training course catalog (the “Training Course Catalog”) and will be scheduled as mutually agreed upon during a training conference (the “Training Conference”) that will be held as soon as practicable after signature of this Agreement and no later than six (6) months prior to delivery of the first Aircraft (provided that any failure attributable to the Seller to conduct such meeting within such period shall not affect Seller’s obligation to provide such training).

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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16.4.2 The following terms will apply when training is performed by the Seller.

 

  (i) Training courses will be the Seller’s standard courses as described in the Seller’s applicable Training Course Catalog valid at the time of execution of the course. The Seller will be responsible for all training course syllabi, training aids and training equipment necessary for the organization of the training courses.

 

  (ii) The training curricula and the training equipment may not be fully customized. However, they may be modified to include the most significant aspects of the Specification as known at the latest six (6) months prior to the date of the first training course planned for the Buyer and will be configured in order to obtain the relevant Aviation Authority’s approval and to support the Seller’s teaching programs.

 

  (iii) Training data and documentation necessary for training detailed in Appendix A to this Clause 16 will be ***** and will not be revised. Training data and documentation will be marked “FOR TRAINING ONLY” and as such will be supplied for the sole and express purpose of training.

 

  (iv) Upon the request of the Buyer and at no charge to the Buyer, the Seller will collect and pack for consolidated shipment to the Buyer’s facility, all training data and documentation of the Buyer’s trainees attending training at the Airbus Training Center in Miami, Florida or Blagnac, France as applicable. This training data and documentation will be delivered Free Carrier (FCA) Miami International Airport. It is understood that title to and risk of loss of the training data and documentation will pass to the Buyer upon delivery.

 

16.4.3 If the Buyer decides to cancel or reschedule a training course, a minimum advance notice of ***** will be required. Any later cancellation or change from the Buyer, when courses cannot be allocated to other customers, will be deducted from the training allowances defined herein or if no such training allowances remain, the Seller will invoice the Buyer at the then prevailing prices in the ANACS Customer Services Catalog.

 

16.4.4 In fulfillment of its obligation to provide training courses, when the Seller performs the training courses, the Seller will deliver to the trainees a certificate of completion at the end of any such training course. The Seller’s certificate does not represent authority or qualification by any official Aviation Authorities but may be presented to such officials in order to obtain relevant formal qualification.

 

     If training is provided by a training provider selected by the Seller, the Seller will cause such training provider to deliver a certificate of completion at the end of any such training course. Such certificate will not represent authority or qualification by any official Aviation Authorities but may be presented to such officials in order to obtain relevant formal qualification.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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16.5 Prerequisites

 

16.5.1 Training will be conducted in English and all training aids are written in English using common aeronautical terminology. Trainees must have the prerequisite experience as defined in Appendix B to this Clause 16.

 

     The Seller’s training courses are “Initial Equipment Training Courses”, “Transition Training Courses”, and “Upgrade Training Courses”. The Seller does not provide “Ab Initio Training Courses.”

 

     The Buyer will be responsible for the selection of the trainees and for any liability with respect to the entry knowledge level of the trainees.

 

16.5.2 The Buyer will provide the Seller with an attendance list of the trainees for each course with the validated qualification of each trainee. The Seller reserves the right to verify the trainees’ proficiency and previous professional experience. The Seller will in no case warrant or otherwise be held liable for any trainee’s performance as a result of any training services provided.

 

16.5.3 Upon the Buyer’s request, the Seller may be consulted to direct the above mentioned trainee(s) through a relevant entry level training program, which will be at the Buyer’s charge, and, if necessary, to coordinate with competent outside organizations for this purpose. Such consultation will be held during the Training Conference.

 

     If the Seller should determine that a trainee lacks the required entry level, such trainee will, following consultation with the Buyer, be withdrawn from the program.

 

     Upon such withdrawal, the Seller will deduct the corresponding allowance from the total allowance for the applicable training.

 

16.6 Logistics

 

16.6.1 Trainees

 

16.6.1.1 When training is done at the Airbus Training Center in Miami, Florida, the Seller will provide a ***** rental car for all of the Buyer’s trainees for the duration of the training course on the basis of one (1) rental car per four (4) maintenance and operations trainees and one (1) rental car per flight crew. At the Buyer’s request, the Seller will make available an alternative means of transportation for the flight attendants.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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     The Seller will provide rental cars with unlimited mileage, and the Buyer will pay for gas, and fines, if any. However, the Buyer will indemnify and hold the Seller harmless from and against all liabilities, claims, damages, costs and expenses for any injury to or death of any of the Buyers’ trainees or to any third party occurring during the course of such transportation.

 

16.6.1.2 When training is done at the Airbus Training Center in Blagnac, France, or Beijing, China, or at another location pursuant to Clause 16.3.2, the Seller will provide free local transportation by bus for the Buyer’s trainees to and from designated pick up points and the training center.

 

16.6.1.3 Living expenses for the Buyer’s trainees are to be borne by the Buyer.

 

16.6.2 Training at External Location

 

16.6.2.1 Seller’s Instructors

 

     If at the Buyer’s request, training is provided by the Seller’s instructors at any location other than the Seller’s training centers, the Buyer will reimburse the Seller for all the expenses (other than as set forth in Clause 16.3.3, if applicable), defined below in Clauses 16.6.2.2, 16.6.2.3, 16.6.2.4 and 16.6.2.5 related to the assignment of such instructors and their performance of the duties as aforesaid.

 

16.6.2.2 Living Expenses for the Seller’s Instructors

 

     Such expenses, covering the entire period from day of secondment to day of return to the Seller’s base, will be limited to lodging, food and local transportation to and from the place of lodging and the training course location. The Buyer will reimburse the Seller for such expenses on the basis of a per diem rate corresponding to the current per diem rate used by the Seller for its personnel.

 

16.6.2.3 Air Travel

 

     The Buyer will reimburse the Seller for business class air transportation when the Seller’s personnel must travel internationally, and for confirmed coach class fares, on the Buyer’s routes wherever possible for Seller’s personnel traveling domestically and reasonable food and lodging expenses to and from the Buyer’s designated training site and the Seller’s training center.

 

16.6.2.4 Training Material

 

     The Buyer will reimburse the Seller for the cost of shipping the training material needed to conduct such courses.

 

16.6.2.5 Buyer’s Indemnity

 

     The Buyer will be solely liable for any and all cancellation or delay in the performance of the training outside of the Seller’s training centers that is associated with the transportation provided under Clause 16.6.2.3 above will indemnify and hold the Seller harmless from such delay.

 

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16.6.2.6 Training Equipment Availability

 

     Training equipment necessary for course performance at any course location other than the Seller’s training centers or the facilities of the training provider selected by the Seller will be provided by the Buyer in accordance with the Seller’s specifications.

 

16.7 Flight Operations Training

 

16.7.1 Flight Crew Training Course

 

16.7.1.1 The Seller will perform a flight crew training course program for the Buyer’s flight crews. A flight crew will consist of two pilots, as defined in Appendix A to this Clause 16. The training manual used will be the Seller’s Flight Crew Operating Manual or the Buyer’s Flight Crew Operating Manual, as applicable.

 

16.7.1.2 The Buyer will use its delivered Aircraft for any required in-flight training. This training will not exceed one (1) session of one and a half (1.5) hours per pilot. When in-flight crew training is performed in Blagnac, France, the Seller will provide free-of-charge line maintenance, including servicing, preflight checks and changing of minor components, subject to conditions agreed in this Agreement.

 

16.7.1.3 The Buyer will provide mutually agreed spare parts as required to support said in-flight training and will provide evidence of insurance coverage consistent with Clause 19.

 

16.7.1.4 In all cases, the Buyer will bear the expenses of fuel, oil and landing fees.

 

16.7.2 Flight Crew Line Initial Operating Experience

 

16.7.2.1 In order to assist the Buyer with initial operating experience after delivery of the first Aircraft, the Seller will provide pilot instructors as defined in Appendix A to this Clause 16 to the Buyer. The maximum number of Seller’s pilot instructors present at the Buyers site at one time will be limited to four (4).

 

16.7.2.2 Additional pilot instructors can be provided at the Buyer’s expense upon conditions to be mutually agreed.

 

16.7.2.3 Prior to any flight training to be performed by the Seller on the Buyer’s Aircraft, the Buyer will provide the Seller with a copy of the certificate, of insurance as requested in Clause 19.

 

16.7.3 Flight Attendants’ Familiarization Course The Seller will provide flight attendants’ course(s) to the Buyer’s flight attendants, as defined in Appendix A to this Clause 16 at the Training Conference.

 

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16.8 Maintenance Training

 

16.8.1 The Seller will provide maintenance training for the Buyer’s ground personnel as defined in Appendix A to this Clause 16.

 

     The available courses are listed in the Seller’s applicable Training Course Catalog.

 

     The practical training provided in the frame of maintenance training is performed exclusively on the training devices in use in the Seller’s Training Center or Affiliated Training Centers. If additional practical training is required, such additional practical training can be organized with the assistance of the Seller, in accordance with Clause 16.8.2 hereunder.

 

16.8.2 Practical Training

 

     If the Buyer requires practical training to be organized at another airline’s facilities (“Practical Training”), the Seller will assist the Buyer in organizing this training without guaranteeing the availability of any such facilities.

 

     Such Practical Training will be deducted from the trainee-day allowance defined in Paragraph 2.1 of Appendix A to this Clause 16 in the manner defined in Paragraph 3 of such Appendix.

 

16.8.3 Maintenance Initial Operating Experience Training

 

     In order to assist the Buyer during the entry into service of the Aircraft, the Seller will provide maintenance instructor(s) at the Buyer’s base as defined in Appendix A to this Clause 16 to the Buyer.

 

16.8.3.1 This maintenance initial operating experience training will consist of training in handling and servicing of Aircraft, flight crew and maintenance coordination, use of paper and/or electronic documentation and/or any other activities which may be deemed necessary after delivery of the first Aircraft.

 

16.8.3.2 The Buyer will reimburse the expenses for said instructor(s) in accordance with Clause 16.6.2. Additional maintenance instructors can be provided at the Buyer’s expense.

 

16.9 Supplier and Engine Manufacturer Training

 

     The Seller will ensure that major Suppliers and the Propulsion System manufacturer provide maintenance training and overhaul training on their products at appropriate times.

A copy of the Supplier Training Catalog, listing the suppliers that provide training, will be supplied to the Buyer on request.

 

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16.10 Training Aids for the Buyer’s Training Organization

 

16.10.1 The Seller will provide to the Buyer the Airbus Computer Based Training, training aids, as used in the Seller’s Training Centers, free of charge as defined in Appendix A to this Clause 16.

 

     The Airbus CBT System and training aids supplied to the Buyer will be similar to those used at the Airbus Training Centers for training provided for the Buyer. The Airbus CBT System in use at the Seller’s Training Center may be revised on a regular basis and such revisions, if any, will be provided to the Buyer free or charge during the period when training courses provided under this Clause 16 are performed for the Buyer or up to one (l) year after Delivery of the last Aircraft delivered under this Agreement; whichever occurs first.

 

16.10.2 Delivery of Training Aids

 

16.10.2.1 The Seller will deliver to the Buyer the Airbus CBT System and, training aids as defined in Appendix A to this Clause 16, at a date to be mutually agreed during the Training Conference.

 

16.10.2.2 Those items supplied to the Buyer pursuant to Clause 16.10.1 above will be delivered FCA Toulouse, France, and/or FCA Hamburg, Germany. Title to and risk of loss of said items will pass to the Buyer upon delivery.

 

16.10.3 Installation

 

16.10.3.1 The Buyer will provide any and all the necessary hardware on which the Airbus CBT System will be installed and Seller will not be responsible for any incompatibility of such hardware with the Airbus CBT System.

 

16.10.3.2 The Airbus CBT System will be installed by the Buyer’s personnel who have completed the Airbus CBT training, and the Seller will be held harmless from any damage to persons and/or to property caused by or in any way connected with the handling and/or installation of the Airbus CBT System by the Buyer’s personnel, unless the Seller provides unique instructions for such installation and the Buyer follows such instructions, such instructions are inaccurate and such inaccuracies are the cause of the damage.

 

16.10.3.3 The Buyer will reimburse the expenses in accordance with Clause 16.6., for the Seller’s personnel required at the Buyer’s facility to conduct Airbus CBT Training and/or provide installation assistance.

 

16.10.4 License

 

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16.10.4.1 The Seller will grant the Buyer a license to use the Airbus CBT System, as defined in Appendix C to this Clause 16.

 

16.10.4.2 Supply of additional sets of courseware, as well as any extension of the license for such courseware, will be subject to terms and conditions to be mutually agreed.

 

16.10.5 The Seller will not be responsible and hereby disclaims any and all liabilities resulting from or in connection with the use by the Buyer of the training aids at the Buyer’s facilities.

 

16.11 Proprietary Rights

The Seller’s training data and documentation, Airbus CBT System and training aids are proprietary to the Manufacturer and its suppliers and the Buyer agrees not to disclose the content of the courseware or any information or documentation provided by the Seller in relation to training in whole or in part, to any third party without the prior written consent of the Seller, except as required by law or legal process or in connection with the enforcement of its rights hereunder.

 

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APPENDIX A TO CLAUSE 16

TRAINING ALLOWANCES

 

1. FLIGHT OPERATIONS TRAINING

 

1.1 Flight Crew Training

The Seller will provide flight crew training (regular transition) ***** for ***** of the Buyer’s flight crews. In addition, the Seller will provide ***** dry full flight simulator time for an aggregate ***** hours.

 

1.2 Flight Crew Line Initial Operating Experience

The Seller will provide to the Buyer pilot instructor(s) for ***** months to assist with flight-crew initial operating experience.

The maximum number of pilot instructors present at the Buyer’s site at any one time will be limited to ***** pilot instructors.

 

1.3 Instructor Cabin Attendants’ Familiarization Course

The Seller will provide to the Buyer cabin attendants’ training ***** for up to ***** of the Buyer’s flight attendants. Seller will make available its door trainer equipment facilities for ***** hours, subject to a mutually agreed schedule.

 

1.4 Dispatch/Performance/Operations/Ground Support Course(s)

The Seller will provide to the Buyer ***** trainee days of dispatch/performance/ operations/ground handling training free of charge for the Buyer’s dispatchers, performance engineers and load-master specialists.

The above trainee days will be used solely for the dispatch/performance/operations training courses as defined in the Seller’s applicable Training Course Catalog.

 

2. MAINTENANCE TRAINING

 

2.1 Maintenance Training Courses

The Seller will provide to the Buyer ***** trainee days of maintenance training ***** for the Buyers personnel.

These trainee days will be used solely for the Maintenance training courses as defined in the Sellers’ applicable Training Course Catalog.

 

2.2 Maintenance Initial Operating Experience Training

The Seller will provide to the Buyer maintenance instructor(s) at the Buyer’s base ***** for a period of ***** man-months.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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APPENDIX A TO CLAUSE 16

 

3. TRAINEE DAYS ACCOUNTING

Trainee days are counted as follows:

(i) For instruction at the Seller’s training centers or an affiliated training center, including, without limitation, a training center agreed by the parties should Seller’s training center in Miami not be available, one day of instruction for one (1) trainee equals one (1) trainee day. The number of trainees as confirmed by the Buyer ***** before the beginning of the course will be counted as the number of trainees considered to have taken the course.

(ii) For instruction outside of the Seller’s training centers or an affiliated training center, not including Practical Training, one (1) day of instruction by one (1) Seller instructor equals the actual number of trainees attending the course or a minimum of ***** trainee days.

(iii) For instruction outside of the Seller’s training center or affiliated training center that is Practical Training, one (1) day of instruction by one (1) Seller instructor equals the actual number of trainees attending the course or a minimum of ***** days.

(iv) If training is provided outside of the Seller’s training center or affiliated training centers specifically at the Seller’s request, Paragraph 3 (i) above shall be applicable to the trainee days accounting for such training facility.

 

4. TRAINING AIDS AND CBT SYSTEM FOR BUYER’S TRAINING ORGANIZATION

 

4 The Seller will provide to the Buyer ***** “Airbus CBT System,” defined in Clause 2.1.3 of Appendix C to Clause 16, related to the Aircraft. The Seller will also provide free of charge updates to courseware in Clause 4.2 below when developed by the Manufacturer, continuing through to the third year following delivery of the last Aircraft.

 

4.1 The Airbus CBT System supplied to the Buyer will consist of

- ***** copies on CD-ROM of Airbus CBT installation/utilization guides

- ***** sets of CD-ROMs with run time software related to the delivered courseware.

- ***** CD-ROMs of cockpit panels for training.

For Flight Operations Training

The Airbus CBT courseware will be delivered with ***** copies on CD ROM with Airbus CBT courseware files

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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APPENDIX A TO CLAUSE 16

 

For Maintenance Training

The maintenance Airbus CBT courseware will be delivered with

- ***** copies on CD ROM with Airbus CBT courseware files

- ***** sets of electronic training documentation masters, whenever applicable

For Performance/Operations Training

The A320 Family performance/operations Airbus CBT Courseware will be delivered with

- *****·copies on CD ROMS with Airbus CBT courseware files

- ***** sets of electronic training documentation masters, whenever applicable·

For In-flight Training

The A320 Family maintenance Airbus CBT courseware will be delivered with

- ***** copies on CD ROM with Airbus CBT courseware files

- ***** sets of electronic training documentation masters, whenever applicable

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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APPENDIX B TO CLAUSE 16

 

MINIMUM RECOMMENDED QUALIFICATIONS

IN RELATION TO TRAINING REQUIREMENTS

(Standard Transition Courses)

The prerequisites listed below are the minimum recommended requirements specified for Airbus training. If the appropriate Aviation Authority or the specific airline policy of the trainee’s airline demand greater or additional requirements, such requirements will be considered as prerequisites.

- CAPTAIN prerequisites

. Fluency in English

. 1500 hours minimum flying experience as pilot

. 1000 hours experience on FAR/JAR 25 aircraft

. 200 hours experience as airline, corporate pilot or military pilot

. Must have flown transport type aircraft, as flying pilot.

- FIRST OFFICER prerequisites

.Fluency in English

. 500 hours minimum flying experience as pilot of fixed wing aircraft

. 300 hours experience on FAR/JAR 25 aircraft

. 200 hours flying experience as airline pilot or a corporate pilot or military pilot

. Must have flown transport type aircraft, as flying pilot

For both CAPTAIN and FIRST OFFICER, if one or several of the above criteria are not met, the trainee must follow

 

  (i) an adapted course or

 

  (ii) an Entry Level Training (ELT) program before entering the regular or the adapted course.

Such course(s), if required, will be at the Buyer’s expense.

- MAINTENANCE PERSONNEL prerequisites

 

  (i) For all Maintenance courses:

. Fluency in English

. Experience on first or second generation jet transport category aircraft

 

  (ii) Additional prerequisites (for Aircraft Rigging Engine Run-Up and Maintenance Initial Operating Course):

- Qualified as line or line and base mechanic on the relevant Airbus aircraft type (for Maintenance Initial Operating Experience Course).

 

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Maintenance Training Difference Courses additional prerequisites:

Currently qualified on the base Aircraft.

 

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APPENDIX C TO CLAUSE 16

 

LICENSE FOR USE OF AIRBUS COMPUTER BASED TRAINING

 

1. GRANT

The Manufacturer having developed and being the owner of a system software permitting the use of programmed instructions providing flight crew and maintenance training known as the “Airbus CBT Software”, and having granted a license for use of the Airbus CBT Software to Seller, which license entitles Seller to further sublicense the Airbus CBT Software to the Buyer, Seller hereby grants, and the Buyer hereby accepts, a non-exclusive, non-assignable and non-transferrable license (the “License”) to the Buyer for use of the Airbus CBT Software pursuant to the terms and conditions herein.

 

2. DEFINITIONS

 

2.1 For the purpose of this Appendix C to Clause 16, the following definitions will apply:

 

2.1.1 “Airbus CBT Courseware” means the programmed instructions that provide flight crew and maintenance training.

 

2.1.2 “Airbus CBT Software” means the system software that permits the use of the Airbus CBT Courseware.

 

2.1.3 “Airbus CBT System” means the combination of the Airbus CBT Software and the Airbus CBT Courseware.

 

2.1.4 “Student/Instructor Mode” means the mode that allows the user to run the Airbus CBT Courseware.

 

2.1.5 “Airbus CBT Training” means the training enabling the Buyer to load and use the Airbus CBT System.
2.1.6 “User Guide” means the documentation, which may be in electronic format designed to assist the Buyer to use the Airbus CBT.

 

2.2 For the purpose of clarification, it is hereby stated that all related hardware required for the operation of the Airbus CBT System is not part of the Airbus CBT System and will be procured under the sole responsibility of the Buyer.

 

3. COPIES

 

3.1 The Buyer will be permitted to copy the Airbus CBT Software for back-up and archiving purposes and for loading of the Airbus CBT Software exclusively on the Buyer’s workstations. In such cases, the Buyer will advise the Seller in writing stating the number and purpose of any copies made. Any other copying without Sellers consent is strictly prohibited.

 

3.2 The Buyer will reproduce the copyright and other notices as they appear on or within the original media on any copies that the Buyer makes of the Airbus CBT Software.

 

4. TERM

The rights under this License are granted to the Buyer for as long as the Buyer operates the aircraft model to which the Airbus CBT Software and the Airbus CBT courseware apply. Within thirty (30) Working Days after the date upon which, the Buyer stops operating said Aircraft model, the Buyer will return the Airbus CBT System and any copies thereof to the Seller, accompanied by a certification that the Buyer has returned all existing copies.

 

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5. PERSONAL ON-SITE LICENSE

 

5.1 The License granted herein is personal to the Buyer for use of the Airbus CBT System and is nontransferable and nonexclusive.

 

5.2.1 The Buyer may not (i) distribute or sublicense any portion of the Airbus CBT System to a third party, (ii) modify or prepare derivative works from the Airbus CBT Software, except as set forth in 6.1 herein (iii) publicly display visual output of the Airbus CBT Software, or (iv) transmit the Airbus CBT Software electronically by any means.

 

5.2.2 The Buyer will use the Airbus CBT exclusively in the technical environment defined in the User Guide.

Notwithstanding the above, the right to use the Airbus CBT on the Buyer’s internal network installation is granted to the Buyer, subject to the Buyer strictly complying with the conditions of use and the confidentiality commitments set forth in this Airbus CBT License.

 

6. CONDITIONS OF USE

 

6.1 Use of the Airbus CBT Software

For the student delivery mode, the Buyer will use the Airbus CBT Software for the exclusive purpose of

 

  (i) including students on the roster for one or several courses syllabi in order to follow students’ progression,

 

  (ii) rearranging course syllabi or creating new syllabi using available courseware modules, it being understood that the Seller disclaims any responsibility regarding any course(s) that may be modified or rearranged by the Buyer.

 

6.2 Use of the Airbus CBT Courseware

The Buyer will use the Airbus CBT Courseware for the exclusive purpose of training its personnel, or third party personnel contracted to perform work on the

Aircraft on behalf of the Buyer. Such training will be performed at the Buyer’s facility or at a subcontractor’s facility, provided it is conducted by the Buyer’s personnel.

 

7. PROPRIETARY RIGHTS AND NONDISCLOSURE

The Airbus CBT Software and Airbus CBT Courseware, the copyrights and any and all other author rights, intellectual, commercial or industrial proprietary rights of whatever nature in the Airbus CBT Software and Airbus CBT Courseware are and will remain with the Seller, the Manufacturer or their suppliers, as the case may be. The Airbus CBT Software and Airbus CBT Courseware and their contents are designated as confidential. The Buyer will not take any commercial advantage by copy or presentation to third parties of the Airbus CBT Software, the documentation, the Airbus CBT Courseware, and/or any rearrangement, modification or copy thereof.

 

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The Buyer acknowledges the Manufacturer’s proprietary rights in the Airbus CBT System and undertakes not to disclose the Airbus CBT Software or Airbus CBT Courseware or parts thereof or their contents to any third party without the prior written consent of the Seller. Insofar as it is necessary to disclose aspects of the Airbus CBT Software and Airbus CBT Courseware to the Buyer’s personnel, such disclosure is permitted only for the purpose for which the Airbus CBT Software and Airbus CBT Courseware are supplied to the Buyer under the License.

 

8. LIMITED WARRANTY

 

8.1 The Seller warrants that the Airbus CBT System is prepared in accordance with the state of the art at the date of its development. Should the Airbus CBT System be found to contain any nonconformity or defect, the Buyer will notify the Seller promptly thereof and the sole and exclusive liability of the Seller under this Clause 8.1 of the Airbus CBT License will be to promptly correct the same at its own expense.

 

8.2 EXCLUSIVITY OF LIABILITY

THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND REMEDIES OF THE BUYER SET FORTH IN THIS LICENSE AND IN THE PATENT AND COPYRIGHT INDEMNITY SET FORTH IN CLAUSE 13 OF THE AGREEMENT ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE WITH RESPECT TO ANY NONCONFORMITY OR DEFECT IN AIRBUS CBT SYSTEM DELIVERED UNDER THIS LICENSE INCLUDING BUT NOT LIMITED TO:

ANY WARRANTY AGAINST HIDDEN DEFECTS;

ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;

ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;

ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER CONTRACTUAL OR IN TORT AND WHETHER OR NOT ARISING FROM THE SELLER’S NEGLIGENCE, ACTUAL OR IMPUTED; AND

ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART THEREOF.

THE SELLER WILL HAVE NO OBLIGATION OR LIABILITY, HOWSOEVER ARISING, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY

 

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NONCONFORMITY OR DEFECT IN THE AIRBUS CBT SYSTEM DELIVERED UNDER THIS LICENSE.

FOR THE PURPOSES OF THIS CLAUSE 8.2, THE “SELLER” WILL INCLUDE THE SELLER AND ITS AFFILIATES.

 

74


17 SUPPLIER PRODUCT SUPPORT

 

17.1 Equipment Supplier Product Support Agreements

 

17.1.1 The Seller will at no charge to the Buyer transfer to the Buyer the Supplier Product Support Agreements (“SPSA”) transferable to the Buyer from Suppliers of Seller Furnished Equipment listed in the Specification. These agreements are based on the “World Airlines and Suppliers Guide” and include Supplier commitments contained in the Supplier Product Support Agreements, such commitments including:

 

  (i) Technical data and manuals required to operate, maintain, service and overhaul the Supplier items will (a) be prepared in accordance with the applicable provisions of ATA Specification 100 and 101, in accordance with Clause 14 of this Agreement, (b) include revision service, and (c) be published in the English language. (The Seller recommends that software data, supplied in the form of an appendix to the Component Maintenance Manual, be provided in compliance with ATA Specification 102 up to level 3 to protect Supplier’s proprietary interests.)

 

  (ii) Warranties and guarantees, including Suppliers’ standard warranties, and in the case of Suppliers of landing gear, service life policies for selected landing gear structures.

 

  (iii) Training to ensure efficient operation, maintenance and overhaul of the Suppliers’ items for the Buyer’s instructors, shop and line service personnel.

 

  (iv) Spares data in compliance with ATA Specification 200 or 2000, initial provisioning recommendations, spares and logistics service, including routine and emergency deliveries.

 

  (v) Technical service to assist the Buyer with maintenance, overhaul, repair, operation and inspection of Supplier items as well as required tooling and spares provisioning.

 

17.2 Supplier Compliance

The Seller will monitor Supplier compliance with support commitments defined in the SPSA and will take action to assist the Buyer to enforce its rights under the SPSA, provided the Buyer has first used commercially reasonable efforts to enforce its rights independently

 

17.3 Supplier Part Repair Stations

The Seller has developed with the Suppliers a comprehensive network of repair stations in the United States of America and Canada for those Supplier Parts

 

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originating from outside these countries. As a result, most Supplier Parts are repairable in the United States and Canada. The repair stations in the network are listed in the AOG and Repair Guide.

Supplier Parts that have to be sent for repair outside the United States of America and Canada will be sent back to the Buyer with proper tagging as required by the FAA.

 

17.3.2 The Seller will support the Buyer in cases where the agreed repair turn time of an approved repair station is not met by causing free-of-charge loans or exchanges as specified in the relevant Supplier Product Support Agreements to be offered to the Buyer.

 

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  18 - BUYER FURNISHED EQUIPMENT

 

  18.1 Administration

 

  18.1.1 Without additional charge and in accordance with the Specification, the Seller will cause the Manufacturer to provide for the installation of the Buyer Furnished Equipment (“BFE”), provided that the BFE is referred to in the Airbus BFE Catalog of Approved Suppliers by Products valid at the time the BFE is ordered.

 

       The Seller will cause the Manufacturer to advise the Buyer of the dates by and location to which, in the planned release of engineering for the Aircraft, the Seller requires a written detailed engineering definition. This description will include the definition of the dimensions and weight of BFE, the information related to its certification and information necessary for the installation and operation thereof. The Buyer will furnish such detailed description and information by the dates specified. Thereafter, no information, dimensions or weights will be revised unless authorized by an SCN.

 

       The Seller will also provide the Buyer in due time with a schedule of dates and shipping addresses for delivery of BFE and (when requested by the Seller) additional spare BFE in order to permit installation of the BFE in the Aircraft and delivery of the Aircraft in accordance with the delivery schedule. The Buyer will provide the BFE by such dates in a serviceable condition, to allow performance of any assembly, test, or acceptance process in accordance with the industrial schedule.

 

       The Buyer will also provide, when requested by the Manufacturer, at Airbus France S.A.S. works and/or at Airbus Deutschland Gmbh works, as applicable and needed, adequate field service, including support from BFE suppliers to act in a technical advisory capacity to the Seller in the installation, calibration and possible repair of any BFE.

 

  18.1.2 The BFE will be imported into France or into Germany by the Buyer under a suspensive customs system (“Régime de l’entrepôt industriel pour fabrication coordonnée” or “Zollverschluss”) without application of any French or German tax or customs duty, and will be Delivered Duty Unpaid (DDU) (as defined in Incoterms 2000:ICC Official Rules for the Interpretation of Trade Terms, published by the International Chamber of Commerce), to

 

       AIRBUS FRANCE S.A.S.
       316 Route de Bayonne
       31300
       Toulouse FRANCE
       or

 

       AIRBUS DEUTSCHLAND GMBH
       Division Hamburger Flugzeugbau

 

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Kreetslag 10

21129 HAMBURG

FEDERAL REPUBLIC OF GERMANY

 

18.1.3 If the Buyer requests the Seller to supply directly certain items that are considered BFE according to the Specification, and if such request is notified to the Seller in due time in order not to affect the delivery date of the Aircraft, the Seller may agree to order such items subject to the execution of an SCN reflecting the effect on price, escalation adjustment, and any other conditions of the Agreement. In such case the Seller will be entitled to the payment of a reasonable handling charge and will bear no liability in respect of delay and product support commitments for such items.

 

18.2 Requirements

The Buyer is responsible for assuring and warranting, at its expense, that BFE will (i) be manufactured by a qualified supplier and in accordance with the provisions of Clause 18.1.1. above, (ii) meet the requirements of the applicable Specification, (iii) comply with applicable requirements incorporated by reference to the Type Certificate and listed in the Type Certificate Data Sheet, and (iv) be approved by the applicable Aviation Authority delivering the Export Certificate of Airworthiness and by the Buyer’s Aviation Authority for installation and use on the Aircraft at the time of Delivery of such Aircraft. The Seller will be entitled to refuse any item of BFE that it considers incompatible with the Specification, the engineering definition mentioned above in Clause 18.1.1 or the certification requirements.

 

18.3 Buyer’s Obligation and Sellers Remedies

 

18.3.1 Any delay or failure in

 

  (i) furnishing the BFE in serviceable condition at the requested delivery date,

 

  (ii) complying with the Clause 18.2 or in providing the descriptive information or service representatives required by Clause 18.1.1, or

 

  (iii) obtaining any required approval for such equipment under the Aviation Authorities’ regulations

may delay the performance of any act to be performed by the Seller, and cause the Final Contract Price of the Aircraft to be adjusted in accordance with the updated delivery schedule, including, in particular, the costs the Seller incurs that are attributable to the delay or failure described above, such as storage, taxes, insurance and costs of out of sequence installation.

 

18.3.2 In addition to the consequences outlined in Clause 18.3.1, in the event of a delay or failure described in Clause 18.3.1,

 

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  (i) the Seller may select, purchase and install equipment similar to the BFE at issue, in which event the Final Contract Price of the affected Aircraft will also be increased by the purchase price of such equipment, plus reasonable costs and expenses incurred by the Seller fo handling charge transportation, insurance, packaging and, if required and not already provided for in the price of the Aircraft, for adjustment and calibration; or

 

  (ii) if the BFE is delayed more than ***** days beyond, or unapproved within, ***** days of the date referenced in Clause 18.1.1, then the Seller may deliver or the Buyer may elect to have the Aircraft delivered without the installation of such BFE, notwithstanding the terms of Clause 7.2 insofar as it may otherwise have applied, whereon the Seller will be relieved of all obligations to install such equipment.

 

18.4 Title and Risk of Loss

Title to and risk of loss of BFE will at all times remain with the Buyer, except that risk of loss (limited to cost of replacement of said BFE and excluding in particular loss of use) will be with the Seller for as long as the BFE is in the care, custody and control of the Seller.

 

18.5 Disposition of BFE Following Termination

 

18.5.1 If a termination of this Agreement pursuant to the provisions of Clause 21 hereof occurs with respect to an Aircraft in which all or any part of the BFE has been installed prior to the date of such termination, the Seller will be entitled, but not required, to remove all items of BFE which can be removed without damage to the Aircraft and to undertake commercially reasonable efforts to facilitate the sale of such items of BFE to other customers, retaining and applying the proceeds of such sales to reduce Seller’s damages resulting from the termination.

 

18.5.2 The Buyer will cooperate with the Seller in facilitating the sale of BFE pursuant to Clause 18.5.1 above and will be responsible for all costs incurred by the Seller in removing and facilitating the sale of such BFE. The Buyer will reimburse the Seller for all such costs within five (5) Business Days of receiving documentation of such costs from the Seller.

 

18.5.3 The Seller will notify the Buyer as to those items of BFE not sold by the Seller pursuant to Clause 18.5.1 above and, at the Seller’s request, the Buyer will undertake to remove such items from the Seller’ facility within thirty (30) days of the date of such notice. The Buyer will have no claim against the Seller for damage or destruction of any item of BFE removed from the Aircraft and notremoved from Seller’s facility within such period.

 

18.5.4 The Buyer will have no claim against the Seller for damage to or destruction of any item of BFE damaged or destroyed in the process of being deinstalled from the Aircraft, provided that the Seller will use reasonable care in such deinstallation.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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18.5.5 The Buyer at no cost to the Seller will grant title to the Seller for any BFE items that cannot be removed from the Aircraft without causing damage to the Aircraft or rendering any system in the Aircraft unusable.

 

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19 - INDEMNITIES AND INSURANCE

 

19.1 Seller’s Indemnities

(a) The Seller will, except in the case of gross negligence or willful misconduct of the Buyer, it’s directors, officers, agents, or employees, be solely liable for and will indemnify and will hold the Buyer, its Affiliates, and their respective shareholders, members, directors, officers, lenders, agents and employees and their insurers (the “Buyer Parties”) harmless against all losses, liabilities, claims, damages, costs and expenses, including court costs and reasonable attorneys’ fees (“Losses”), arising from claims for injuries to, or deaths of, the Seller’s, Manufacturer’s any Associated Contractor’s or their respective subcontractors, Affiliates and Suppliers or the directors, officers, agents or employees of any of the foregoing (the “Seller Parties”) , or loss or damage to property of any Seller Party. when such losses occur during or are incidental to (i) the Buyer’s exercise of its inspection rights under Clause 6, (ii)·the Technical Acceptance Process described in Clause 8, (iii) the provision of Field Assistance pursuant to Clause 15 or (iv) the provision of training pursuant to Clause 16.

(b) The Seller will, except in the case of gross negligence or willful misconduct of the Buyer, its directors, officers, agents, or employees, be solely liable for and will indemnify and will hold the Buyer Parties, and each of them harmless against all losses, liabilities, claims, damages, costs and expenses, including court costs and reasonable attorneys’ fees Losses, arising from claims for injuries to or deaths of third parties, or loss of property of third parties, occurring during, or incidental to (i) the Buyer’s exercise of its inspection rights pursuant to Clause 6 or (ii) the Technical Acceptance Process described in Clause 8.

 

19.2 Buyer’s Indemnities

The Buyer will, except in the case of gross negligence or willful misconduct of the Seller, its directors, officers, agents and employees, be solely liable for and will indemnify and will hold the Seller Parties and each of them harmless against all Losses arising from:

 

  (a) claims for injuries to or deaths of the Buyer’s directors, officers, agents or employees, or loss or damage to property of the Buyer or its employees or agents, when such losses occur during or are incidental to (i) the Buyer’s exercise of its inspection rights under Clause 6; (ii) the Technical Acceptance Process described in Clause 8, (iii) the provision of Field Assistance pursuant to Clause 15, or (iv) the provision of training pursuant to Clause 16; and

 

  (b) claims for injuries to or deaths of third parties, or loss of property of third parties, where such losses occur during or incidental to (i) the provision of Field Services under Clause 15 or (ii) arise out of the provision of training pursuant to Clause 16.

 

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19.3 Notice and Defense of Claims

 

  (a) If any claim is made or suit is brought against a party or entity entitled to indemnification under this Clause 19 (the “Indemnitee”) for damages for which liability has been assumed by the other party under this Clause 19, (the “Indemnitor”), the Indemnitee will promptly give notice to the Indemnitor and the Indemnitor (unless otherwise requested by the Indemnitee) will assume and conduct the defense, or settlement, of such suit, as the Indemnitor will deem prudent. Notwithstanding the foregoing, no settlement or compromise will be made without the prior written consent of any Indemnitee if such settlement or compromise would result in the imposition of an injunction or other equitable relief upon such Indemnitee, or if such Indemnitee is not unconditionally and irrevocably released from liabilities or obligations with respect to such suit or claim. Notice of the claim or suit will be accompanied by all information pertinent to the matter as is reasonably available to the Indemnitee and will be followed by such cooperation by the Indemnitee as the Indemnitor or its counsel may reasonably request at the expense of the Indemnitor. The Indemnitee may participate, at its own expense, with Indemnitor in the defense or appeal of any such claim or suit, with attorneys of its choosing; provided that the Indemnitor retains sole control and authority regarding any such defense, compromise, settlement, appeal, or similar action, subject to all other provisions of this Clause 19.3(a).

 

  (b) If the Indemnitor fails or refuses to assume the defense of any claim or lawsuit notified to it under this Clause 19, the Indemnitee will have the right to proceed with the defense or settlement of the claim or lawsuit as it deems prudent and will have a claim over against the Indemnitor for any judgments, settlements, costs or expenses, including reasonable attorneys’ fees. Further, in such event, the Indemnitor will be deemed to have waived any objection or defense to the Indemnitee’s claim based on the reasonableness of any settlement.

 

19.4 Insurance

 

19.4.1 For all training periods on aircraft, the Buyer will cause the Seller, as defined in Clause 19.3 hereof, its Affiliates, and its Suppliers, and their respective insurers to be named as additional insureds under the Buyer’s Comprehensive Aviation Legal Liability insurance policies, including War Risks and Allied Perils, to the extent of the Buyer’s undertaking set forth in Clause 19.2. With respect to the Buyer’s Hull All Risks and Hull War Risks insurances and Allied Perils, the Buyer will cause the insurers of the Buyer’s hull insurance policies to waive all rights of subrogation against the Seller, as defined in Clause 19.3 hereof, its Affiliates, it Suppliers, and their insurers, to the extent of the Buyer’s undertaking set forth in Clause 19.2.

Any applicable deductible will be borne by the Buyer. With respect to the above policies, the Buyer will furnish to the Seller, not less than five (5) Working Days

 

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prior to the start of any such training period, certificates of insurance, in English, evidencing the limit of liability cover and period of insurance in a form reasonably acceptable to the Seller from the Buyer’s insurance broker(s) certifying that such policies have been endorsed as follows:

 

  (i) under the Comprehensive Aviation Legal Liability Insurances, the Buyer’s policies are primary and non-contributory to any insurance maintained by the Seller.

 

  (ii) Such insurance, can only be cancelled or materially altered by the giving of not less than ***** days (but ***** days or such lesser period as may be customarily available in respect of War Risks and Allied Perils) prior written notice thereof to the Seller; and

 

  (iii) Under any such cover, all rights of subrogation against the Seller, its Affiliates, its Suppliers and their respective insurers, have been waived to the extent of the Buyer’s undertaking and specially referring to Clause 19.2 and to this Clause 19.4.

For the purposes of this Clause 19, “the Seller and its Affiliates” includes but is not limited to the Seller, its Affiliates, ANACS, Hua-Ou Airbus – CASC Aviation Training Center, the Associated Contractors, Airbus S.A.S. and its shareholders, each of the associated subcontractors, the assignees of each of the foregoing, and their respective directors, agents and employees.

 

19.4.2 At the request of the Buyer, the Seller will furnish to the Buyer, certificates of insurance in English, evidencing the limits of liability cover and period of insurance covering the Seller’s undertaking in Clause 19.1, in a form reasonably acceptable to the Buyer from the Seller’s insurance broker(s) certifying that such policies have been endorsed as follows:

 

  (i) the Seller’s policies are primary and non-contributory to any insurance maintained by the Buyer.

 

  (ii) Such insurance can only be cancelled or materially altered by the giving of not less than ***** days prior written notice thereof to the Buyer.

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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20 - ASSIGNMENTS AND TRANSFERS

 

20.1 Assignments by Buyer

Except as hereinafter provided, the Buyer may not sell, assign or transfer its rights or obligations under this Agreement to any person without the prior written consent of the Seller.

 

20.2 Assignments on Sale, Merger or Consolidation

The Buyer will be entitled to assign its rights under this Agreement at any time due to a merger, consolidation or a sale of all or substantially all of its assets, provided the Buyer first obtains the written consent of the Seller. The Seller will provide its consent if

 

  (i) the surviving or acquiring entity is organized and existing under the laws of the United States;

 

  (ii) the surviving or acquiring entity has executed an assumption agreement, in form and substance reasonably acceptable to the Seller, agreeing to assume all of the Buyer’s Obligations under this Agreement;

 

  (iii) at the time, and immediately following the consummation, of the merger, consolidation or sale, no event of default exists or will have occurred and be continuing;

 

  (iv) there exists with respect to the surviving or acquiring entity no basis for a Termination Event within the meaning of Clause 21 of this Agreement;

 

  (v) the surviving or acquiring entity holds an Operating Certificate issued by the [FAA or relevant Aviation Authority] at the time, and immediately following the consummation, of such sale, merger or consolidation; and

 

  (vi) following the sale, merger or consolidation, in a financial condition at least equal to that of the Buyer at time of execution of the Agreement.

 

20.3 Designations by Seller

The Seller may at any time by notice to the Buyer designate facilities or personnel of the Manufacturer, ANACS, any of the Associated Contractors or any Affiliate of the Manufacturer or any Affiliate of an Associated Contractor at which or by whom the services to be performed under this Agreement will be performed. The Seller may also designate the Manufacturer or any Affiliate of an Associated Contractor as the party responsible on behalf of the Seller for providing to the Buyer all or any of the Agreement. Notwithstanding such designation, the Seller will remain ultimately responsible for fulfillment of all obligations undertaken by the Seller in this Agreement.

 

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20.4 Transfer of Rights and Obligations upon Reorganization

If at any time before the date upon which all the obligations and liabilities of the Seller under this Agreement have been discharged, the legal structure, the membership or the business of the Seller is reorganized or the legal form of the Seller is changed and as a consequence thereof the rights and obligations of the Seller must be transferred to another entity within the restructured Airbus group (or the Seller in its new legal form) (“Newco”) as, the Seller will promptly notify the Buyer of such transfer, and must be transferred to.

In such event, the Seller may request the Buyer to enter into a novation agreement and/or other agreement having the same effect whereby the Seller’s rights and obligations under this Agreement are novated or transferred in favor of Newco. Upon receipt of such request, the Buyer will enter into a novation agreement and/or other appropriate agreement, provided that the Buyer’s rights and obligations under this Agreement are not materially adversely affected by such novation and/or other agreement.

Until any such novation agreement/other appropriate documentation has come into effect, this Agreement will remain in full force and effect, and each party will act diligently and in good faith to implement the novation agreement and/or other appropriate documentation as soon as practicable after Newco has come into existence.

 

 

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21 TERMINATION

 

21.1 Termination Events

Each of the following (“Termination Event”) will constitute an occurrence entitling the Seller to cancel all or part of this Agreement, based on a breach by the Buyer:

 

  (1) The Buyer or any of its Affiliates will commence in any jurisdiction any case, proceeding or other action with respect to the Buyer or any of its Affiliates or their respective properties relating to bankruptcy, insolvency, reorganization, winding-up, liquidation, dissolution or other relief from, or with respect to, or readjustment of, its debts or obligations.

 

  (2) An action is commenced in any jurisdiction seeking the appointment of a receiver, trustee, custodian or other similar official for the Buyer or any of its Affiliates or for all or any substantial part of their respective assets, and such action remains unstayed, undismissed or undischarged for sixty (60) days, or the Buyer or any of its Affiliates makes a general assignment for the benefit of its creditors.

 

  (3) An action is commenced in any jurisdiction against the Buyer or any of its Affiliates seeking issuance of a warrant of attachment, execution, distraint or similar process against all or any substantial part of their respective assets, and such action remains unstayed, undismissed or undischarged for sixty (60) days.

 

  (4) The Buyer or any of its Affiliates becomes the object, in any jurisdiction, of a case, proceeding or action similar or analogous to any of the events mentioned in Sub-clause 21.1.1(1), (2) or (3).

 

  (5) The Buyer or any of its Affiliates does not, or is unable to, or admits in writing its inability to, pay its debts as they become due.

 

  (6) The Buyer commences negotiations with significant creditors, existing or potential, with the intention of restructuring all or substantially all of either’s outstanding obligations or in preparation for a bankruptcy filing under the U.S. Bankruptcy Code

 

  (7) The Buyer or any of its Affiliates fails to make (i) any payment required to be made under this Agreement or any other material agreement between the Buyer or any of its Affiliates and the Seller or any of its Affiliates when such payment is due, (ii) any Predelivery Payment required to be made under this Agreement when such payment is due, or (iii) payment of all or part of the Final Contract Price of any Aircraft required to be made under this Agreement

 

  (8) The Buyer repudiates, cancels or terminates this Agreement in whole or in part.

 

  (9) The Buyer defaults in its obligation to take delivery of an Aircraft as provided in this Agreement.

 

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  (10) The Buyer or any of its Affiliates defaults in the observance or performance of any other covenant, undertaking or obligation contained in this Agreement or any other material agreement between the Buyer or its Affiliates, on the one hand, and the Seller or its Affiliates on the other hand, provided that, if such breach or default is capable of being cured, such breach or default is not cured within any specified cure period, or if no cure period is specified, within ten (10) days of such breach or default.

 

  (11) Any other event that the parties will have agreed in writing constitutes a Termination Event hereunder.

 

21.1.2 If a Termination Event occurs, the Buyer will be in material breach of this Agreement, and the Seller will have the right to resort to any remedy under applicable law, and may, without limitation, by written notice to the Buyer, immediately:

 

  (1) Elect to: (i) suspend its performance under this Agreement with respect to any or all Aircraft and/or (ii) reschedule the Schedule Delivery Month of any or all Aircraft remaining to be delivered under this Agreement, (iii) reschedule the date for performance under this Agreement with respect to any or all equipment, Aircraft services, data and other items, and/or (iv) cancel or terminate this Agreement (a “Termination”) with respect to any or all Aircraft, and/or equipment, services, data and/or other items related thereto;

 

  (2) In addition, claim and receive payment from the Buyer of a sum equal to Seller’s actual damages resulting from Seller’s exercise of the remedies set forth in the foregoing 21.1.2 (1) (i), (ii) or (iii) and, in the case of a Termination under the foregoing 21.1.2(iv) only, the Seller shall not be entitled to claim actual damages, but shall be entitled to receive payment from the Buyer, as liquidated damages and not as a penalty, an amount equal to, for each Affected Aircraft (as defined below), the sum of (A) the greater of (a) all Predelivery Payments previously received by the Seller from the Buyer under this Agreement with respect to such Aircraft and (b) the amount set forth as follows:

 

  a.

if the Applicable Date (as defined below) occurs before the first day of the 36th month prior to the Scheduled Delivery Month of such Aircraft: one percent (1%) of the Escalated Price per such Aircraft,

 

  b.

if the Applicable Date occurs on or after the first day of the 36th month but before the first day of the 30th month prior to the Scheduled Delivery Month of such Aircraft: four percent (4%) of the Escalated Price per such Aircraft,

 

  c.

if the Applicable Date occurs on or after the first day of the 30th month but before the first day of the 24th month prior to the Scheduled Delivery Month of such aircraft: 10 percent (10%) of the Escalated Price per such Aircraft,

 

  d.

if the Applicable Date occurs on or after the first day of the 24th month but before the first day of the 18th month prior to the Scheduled Delivery Month of such Aircraft: fifteen percent (15%) of the Base Price per such Aircraft, such Escalated Price per such Aircraft,

 

  e.

if the Applicable Date occurs on or after the first day of the 18th month but before the first day of the 12th month prior to the Scheduled Delivery Month of such Aircraft: twenty percent (20%) of the Escalated Price per such Aircraft,

 

  f. if the Applicable Date occurs on or after the first day of the 12th month but before the first day of the 9th month prior to the Scheduled Delivery Month of such Aircraft: twenty-five percent (25%) of the Escalated Price per such Aircraft, and

 

  g. if the Applicable Date occurs on or after the first day of the 9th month but before and including the Delivery Date of such Aircraft: thirty-five percent (35%) of the Escalated Price per such Aircraft, and

 

  (B) is interest on the foregoing amounts at the rate of 1.5% per month from the relevant Applicable Date to the date of actual payment of such amount.

 

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21.1.3 Actual or liquidated damages shall be payable by Buyer promptly, and in any event within ten (10) days of the date of written notice and demand therefor from Seller, such demand to set forth in reasonable detail the calculation of such actual or liquidated damages and shall identify the Termination Event upon which the Seller is relying. The parties agree that the remedy of liquidated damages is not to be denied to the Seller due to the inability of Seller to deliver a notice and demand for payment thereof due to the operation of law following a bankruptcy or other Termination Event under Sub-clause 21.1(1) – (4). The parties further agree that in circumstances where a Termination Event has occurred and the Seller does not cancel this Agreement as to any or all Aircraft, but instead seeks to recover its actual damages resulting therefrom, the amount of actual damages payable by the Buyer shall not exceed the amount of liquidated damages that could have been claimed by Seller pursuant to Clause 21.2 (2) had the Seller elected to claim, as a result of such Termination Event, liquidated damages pursuant to Clause 21.2(2).

 

21.1.4 The parties to this Agreement are commercially sophisticated parties represented by competent counsel. The parties expressly agree and declare that damages for material breach of this Agreement by the Buyer resulting in a Termination of this Agreement as to any or all Aircraft have been liquidated at amounts which are reasonable in light of the anticipated or actual harm caused by the Buyer’s breach, the difficulties of proof of loss and the nonfeasibility of otherwise obtaining an adequate remedy. It is understood and agreed by the parties that the amount of liquidated damages set forth herein is the total amount of monetary damages, no more and no less, to which the Seller will be entitled for and with respect to any Aircraft as recovery for material breach of this Agreement by Buyer resulting in a Termination by the Seller of this Agreement as to such Aircraft.

 

21.1.5 The terms “Affected Aircraft, Applicable Date and “Escalated Price” are defined as follows:

 

  (i) Affected Aircraft” – (a) any or all Aircraft with respect to which the Seller has cancelled or terminated this Agreement pursuant to Sub-clause 21.1.2(1)(iv).

 

  (ii) Applicable Date” – for any Affected Aircraft the date of the Termination Event which the Seller specifies in its notice and demand for payment of liquidated damages delivered under Sub-Clause 21.1(3).

 

  (iii) Escalated Price” –·the sum of (i) the Base Price of the Airframe (set forth in Clause 3.1.1 hereof), (ii) the Base Price of SCNs and MSCNs entered into after the date of this Agreement, and (iii) the reference Price of the Propulsion systems, all as escalated to the Applicable Date in accordance with the provisions of Clause 4 of this Agreement.

 

21.1.6

Promptly upon obtaining knowledge of the occurrence of a Termination Event by the Buyer, the Buyer will notify the Seller of such occurrence in writing, provided, that

 

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any failure by the Buyer to notify the Seller will not prejudice the Seller’s rights or remedies hereunder.

 

21.2 If at any time prior to Scheduled Delivery Date of an Aircraft, the Seller has reasonable grounds for insecurity as to the ability of the Buyer to perform its obligation to take Delivery of such Aircraft, then the Seller will send the Buyer a written demand for adequate assurance of performance. If adequate assurance acceptable to the Seller is not received within thirty days following the date of such written demand, then the Seller will have the right to either (a) exercise the remedies provided under Section 2-609 of the Uniform Commercial Code or (b) exercise any of its remedies under Clause 21.2 of this Agreement.

 

21.3 *****

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

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22- MISCELLANEOUS PROVISIONS

 

22.1 Data Retrieval

On the Seller’s reasonable request, the Buyer will provide the Seller with all the necessary data, as customarily compiled by the Buyer and pertaining to the operation of the Aircraft, to assist the Seller in making an efficient and coordinated survey of all reliability, maintenance, operational and cost data with a view to improving the safety, availability and operational costs of the Aircraft.

 

22.2 Notices

All notices and requests required or authorized hereunder will be given in writing either by personal delivery to a responsible officer of the party to whom the same is given or by commercial courier, certified air mail (return receipt requested) or facsimile at the addresses and numbers set forth below. The date on which any such notice or request is so personally delivered, or if such notice or request is given by commercial courier, certified air mail or facsimile, the date on which sent, will be deemed to be the effective date of such notice or request.

 

     The Seller will be addressed at:

 

     2, rond-point Maurice Bellonte
     31700 BLAGNAC FRANCE
     Attention:    Director – Contracts

 

     Telephone:   33 05 61 30 40 12
     Telecopy:     33 05 61 30 40 11

 

     The Buyer will be addressed at:

 

     Spirit Airlines, Inc.
     2800 Executive Way
     Miramar, FL 33025

 

     Attention: Legal Department /General Counsel

 

     Telephone: 954-447-7914
     Fax: 954-447-7854

 

     From time to time, the party receiving the notice or request may designate another address or another person.

 

22.3 Waiver

The failure of either party to enforce at any time any of the provisions of this Agreement, to exercise any right herein provided or to require at any time

 

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performance by the other party of any of the provisions hereof will in no way be construed to be a present or future waiver of such provisions nor in any way to affect the validity of this Agreement or any part hereof or the right of the other party thereafter to enforce each and every such provision. The express waiver by either party of any provision, condition or requirement of this Agreement will not constitute a waiver of any future obligation to comply with such provision, condition or requirement.

 

22.4 INTERPRETATION AND LAW

THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THERE OF WILL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAWS PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.

Each of the Seller and the Buyer (i) hereby irrevocably submits itself to the nonexclusive jurisdiction of the courts of the state of New York, New York County, or the United States District Court for the Southern District of New York, for the purposes of any suit, action or other proceeding arising out of this Agreement, the subject matter hereof or any of the transactions contemplated hereby brought by any party or parties hereto, and (ii)hereby waives, and agrees not to assert, by way of motion, as a defense or otherwise, in any such suit, action or proceeding, to the extent permitted by applicable law, any defense based on sovereign or other immunity or that the suit, action, or proceeding which is referred to in clause (i) above is brought in an inconvenient forum, that the venue of such suit, action or proceeding is improper, or that this Agreement or the subject matter hereof or any of the transactions contemplated hereby may not be enforced in or by these courts.

THE PARTIES HEREBY ALSO AGREE THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS TRANSACTION.

 

22.4.1 The Buyer for itself and its successors and assigns hereby designates and appoints the Secretary of the Buyer duly elected from time to time as its legal agent and attorney-in-fact upon whom all processes against the Buyer in any suit, action or proceeding in respect of any matter as to which it has submitted to jurisdiction under Clause 22.4 may be served with the same effect as if the Buyer were a corporation organized under the laws of the State of New York and had lawfully been served with such process in such state, it being understood that such designation and appointments will become effective without further action on the part of the Buyer or its Corporate Secretary.

 

22.4.2

The assumption in Clause 22.4.1 above made for the purpose of effecting the service of process will not affect any assertion of diversity by either party hereto

 

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initiating a proceeding in the New York Federal Courts or seeking transfer to the New York Federal Courts on the basis of diversity.

 

22.4.3 Service of process in any suit, action or proceeding in respect of any matter as to which the Seller or the Buyer has submitted to jurisdiction under Clause 22.4 may be made on the Seller by delivery of the same personally or by dispatching the same via Federal Express, UPS, or similar international air courier service prepaid to, CT Corporation, New York City offices as agent for the Seller, it being agreed that service upon CT Corporation will constitute valid service upon the Seller or by any other method authorized by the laws of the State of New York, and (ii) may be made on the Buyer by delivery of the same personally or by dispatching the same by Federal Express, UPS, or similar international air courier service prepaid, return receipt requested to: Corporate Secretary, Spirit Airlines, Inc. at 2800 Executive Way, Miramar, FL 33025, or by any other method authorized by the laws of the State of New York; provided in each case that failure to deliver or mail such copy will not affect the validity or effectiveness of the service of process.

 

22.5 Waiver of Jury Trial

EACH OF THE PARTIES HERETO WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM OR CROSS-CLAIM THEREIN.

 

22.6 No Representations outside of this Agreement.

The parties declare that, prior to the execution of this Agreement, they, with the advice of their respective counsel, apprised themselves of sufficient relevant data in order that they might intelligently exercise their own judgments in deciding whether to execute this Agreement and in deciding on the contents of this Agreement. Each party further declares that its decision to execute this Agreement is not predicated on or influenced by any declarations or representations by any other person, party, or any predecessors in interest, successors, assigns, officers, directors, employees, agents or attorneys of any said person or party, except as set forth in this Agreement. This Agreement resulted from negotiation involving counsel for all of the parties hereto, and no term herein will be construed or interpreted against any party under the contra proferentum or any related doctrine.

 

22.7 Confidentiality

Subject to any legal or governmental requirements of disclosure, the parties (which for this purpose will include their employees, agents and advisors) will maintain the terms and conditions of this Agreement and any reports or other data furnished hereunder strictly confidential, except as required by applicable law or pursuant to legal process. Without limiting the generality of the foregoing, the Buyer will use its best efforts to limit the disclosure of the contents of this Agreement to the extent legally permissible in any filing required to be made by

 

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the Buyer with any governmental agency and will make such applications as will be necessary to implement the foregoing. With respect to any public disclosure or filing, the Buyer agrees to submit to the Seller a copy of the proposed document to be filed or disclosed and, to the extent legally permissible, to give the Seller a reasonable period of time in which to review said document. The Buyer and the Seller will agree to any public disclosure or filing prior to the making of any such public disclosure or filing, permitted hereunder, of this Agreement or the terms and conditions thereof. Each party will be responsible for any and all respective expenses incurred to maintain the confidentiality of this Agreement.

Notwithstanding anything herein to the contrary, any party to this Agreement (and any employee, representative, or other agent of any party to this Agreement) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated by this Agreement and all materials of any kind (including opinions or other tax analyses) that are provided to it relating to such tax treatment and tax structure, provided, however, that this sentence will not permit disclosure of any information to the extent not related to the tax aspects of the transaction. The parties to this Agreement acknowledge that they have no knowledge or reason to know that such disclosure is otherwise limited. The provisions of this Clause 22.7 will survive any termination of this Agreement.

 

22.8 Severability

If any provision of this Agreement should for any reason be held to be without effect, the remainder of this Agreement will remain in full force and effect. To the extent permitted by applicable law, each party hereto hereby waives any provision of law which renders any provision of this Agreement prohibited or unenforceable in any respect.

 

22.9 Alterations to Contract

This Agreement, including its Exhibits and Appendixes, contains the entire agreement between the parties with respect to the subject matter hereof and thereof and supersedes any previous understanding, commitments or representations whatsoever, whether oral or written. This Agreement will not be varied except by an instrument in writing of even date herewith or subsequent hereto executed by both parties or by their fully authorized representatives.

 

22.10 Inconsistencies

In the event of any inconsistency between the terms of this Agreement and the terms contained in either (i) the Specification annexed in Exhibits A-1 and A-2 hereto, or (ii) any other Exhibit hereto, in each such case the terms of Clauses 0 through 23 of this Agreement will prevail over the terms of the Specification or any other Exhibit hereto.

 

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22.11 Language

All correspondence, documents and any other written matters in connection with this Agreement will be in English.

 

22.12 Headings

All headings in this Agreement are for convenience of reference only and do not constitute a part of this Agreement

 

22.13 Counterparts

This Agreement may be executed by the parties hereto 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.

 

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23. CERTAIN REPRESENTATIONS OF THE PARTIES

 

23.1 Buyer’s Representations

 

     The Buyer represents and warrants to the Seller:

 

  (i) the Buyer is a corporation organized and existing in good standing under the laws of the State of Delaware and has the corporate power and authority to enter into and perform its obligations under this Agreement;

 

  (ii) neither the execution and delivery by the Buyer of this Agreement, nor the consummation of any of the transactions by the Buyer contemplated thereby, nor the performance by the Buyer of the obligations thereunder, constitutes a breach of any agreement to which the Buyer is a party or by which its assets are bound;

 

  (iii) this Agreement has been duly authorized, executed and delivered by the Buyer and constitutes the legal, valid and binding obligation of the Buyer enforceable against the Buyer in accordance with its terms.

 

23.2 Seller’s Representations

The Seller represents and warrants to the Buyer:

 

  (i) the Seller is a société à responsabilité limitée organized and existing in good standing under the laws of the Republic of France and has the corporate power and authority to enter into and perform its obligations under the Agreement;

 

  (ii) neither the execution and delivery by the Seller of this Agreement, nor the consummation of any of the transactions by the Seller contemplated thereby, nor the performance by the Seller of the obligations thereunder, constitutes a breach of any agreement to which the Seller is a party or by which its assets are bound;

 

  (iii) this Agreement has been duly authorized, executed and delivered by the Seller and constitutes the legal, valid and binding obligation of the Seller enforceable against the Seller in accordance with its terms.

 

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IN WITNESS WHEREOF, these presents were entered into as of the day and year first above written.

 

AVSA, S.A.R.L.
By:   /s/ illegible
Title:  

 

SPIRIT AIRLINES, INC.
By:   /s/ illegible
Title:  

 

 

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EXHIBIT A-1

A319 Standard Specification

The A319 Standard Specification is contained in a separate folder.


EXHIBIT A-2

A320 Standard Specification

The A320 Standard Specification is contained in a separate folder.


EXHIBIT A-3

A321 Standard Specification

The A321 Standard Specification is contained in a separate folder.


EXHIBIT A-4

*****


EXHIBIT B-1

 

AVSA

SPECIFICATION CHANGE NOTICE

(SCN)

      

 

SCN No.

Issue

Dated

Page No.

    

  TITLE

 

  DESCRIPTION

 

  EFFECT ON WEIGHT

  Manufacturer’s Weight Empty Change:

 

  Operational Weight Empty Change:

 

  Allowable Payload Change:

 

  REMARKS/REFERENCES

  Response to RFC

 

 

  SPECIFICATION CHANGED BY THIS SCN

 

 

  THIS SCN REQUIRES PRIOR OR CONCURRENT ACCEPTANCE OF THE FOLLOWING SCN(s)

 

 

  PRICE PER AIRCRAFT

 

  US DOLLARS:

 

  AT DELIVERY CONDITIONS:

 

  This change will be effective on                      Aircraft No.                      and subsequent provided approval is received by

                                           .

 

  BUYER APPROVAL       SELLER APPROVAL
           
  By:          By:   
  Title:    (Authorized Finance Department Officer)       Date:   
  By:            
  Title:    (Authorized maintenance or flight operations officer)      
  Date:            

 

 

Spirit Airlines – A320 Family

     Page 1 of 2                   


EXHIBIT B-1

 

AVSA

SPECIFICATION CHANGE NOTICE

(SCN)

      

 

SCN No.

Issue

Dated

Page No.

    

  SCOPE OF CHANGE (FOR INFORMATION ONLY)

 

 

 

 

 

 

 

 

 

 

 

Spirit Airlines – A320 Family

     Page 2 of 2                   


        EXHIBIT B-2   

LOGO

 

  

Airline

 

     
MANUFACTURER’S SPECIFICATION    MSCN Number      
CHANGE NOTICE    Issue      
     Dated      

(MSCN)

 

  

Page

 

  

1 of 3

 

  

    Title:

    Description

 

    Effect on weight

 

  

Manufacturer’s Weight Empty Change

 

:

  
  

Operational Weight Empty Change

 

:

  
  

Allowable Payload Change

 

:

  

    Remarks / References

 

    Specification changed by this MSCN

 

 

 

    Price per aircraft

        US DOLLARS :

        AT DELIVERY CONDITIONS :.

 

        This change will be effective on

 

        Provided MSCN is not rejected by

   AIRCRAFT N°    and subsequent.                             

 

        Buyer Approval       Seller Approval
           
        By:          By:   
        Date:          Date:   

 

 


        EXHIBIT B-2   

LOGO

 

  

Airline

 

     
MANUFACTURER’S SPECIFICATION    MSCN Number      
CHANGE NOTICE    Issue      
     Dated      

(MSCN)

 

  

Page

 

  

2 of 3

 

  

    Specification repercussion:

After contractual agreement with respect to weight, performance, delivery, etc, the indicated part of the specification wording will read as follows:

 

 

 

 

 

 

 

 

 


        EXHIBIT B-2   

LOGO

 

  

Airline

 

     
MANUFACTURER’S SPECIFICATION    MSCN Number      
CHANGE NOTICE    Issue      
     Dated      

(MSCN)

 

  

Page

 

  

3 of 3

 

  

Scope of change (FOR INFORMATION ONLY)

 

 

 

 

 

 

 

 

 

 


EXHIBIT C

SELLER SERVICE LIFE POLICY

 

1. The Items of primary and auxiliary structure including but not limited to the list below are covered by the Service Life Policy described in Clause 12.2 of the Agreement.

 

2. WINGS - CENTER AND OUTER WING BOX

*****

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. C-1


EXHIBIT C

 

*****

 

3. FUSELAGE

*****

 

4. STABILIZERS

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. C-2


EXHIBIT C

 

*****

 

5. Bearing and roller assemblies, bearing surfaces, bushings, fittings other than those listed above, access and inspection doors, including manhole doors, latching mechanisms, all system components, commercial interior parts, insulation and related installation and connecting devices are excluded from this Seller Service Life Policy.

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. C-3


EXHIBIT D

CERTIFICATE OF ACCEPTANCE

for A319 Aircraft

In accordance with the terms of that certain A320 Family Purchase Agreement dated as of             , between Spirit Airlines, Inc., (“Spirit”) and AVSA, S.A.R.L. (“AVSA”) (the “Purchase Agreement”), the Technical Acceptance Process (as such term is defined in the Agreement) relating to the Airbus A319 aircraft, Manufacturer’s Serial Number:             , U.S. Registration Number:              with two (2) [Manufacturer]              series Propulsion Systems [Engines] installed thereon, serial nos.              (position #1) and              (position #2) (the “A319 Aircraft”), has taken place at              on the              day of                     ,             .

In view of said tests having been carried out with satisfactory results,              hereby approves the A319 Aircraft as being in conformity with the provisions of the Purchase Agreement.

Said acceptance does not impair the rights of              under the warranties relating to the A319 Aircraft set forth in the Purchase Agreement.

             specifically recognizes that it has waived any right it may have at law or otherwise to revoke this acceptance of the A319 Aircraft.

 

RECEIPT AND ACCEPTANCE OF THE ABOVE-

DESCRIBED A319 AIRCRAFT ACKNOWLEDGED

By:  

 

Title:  

 

Date:  

 

Location:  

 

 

Spirit Airlines – A320 Family   Exh. D-1


EXHIBIT D

 

CERTIFICATE OF ACCEPTANCE

for A320 Aircraft

In accordance with the terms of that certain A320 Family Purchase Agreement dated as of             , between Spirit Airlines, Inc., (“Spirit”) and AVSA, S.A.R.L. (“AVSA”) (the “Purchase Agreement”), the Technical Acceptance Process (as such term is defined in the Agreement) relating to the Airbus A320 aircraft, Manufacturer’s Serial Number:             , U.S. Registration Number:              with (2) [Manufacturer]              series Propulsion Systems [Engines] installed thereon, serial nos.              (position #1) and              (position #2) (the “A320 Aircraft”), has taken place at              on the              day of                     ,             .

In view of said tests having been carried out with satisfactory results, Spirit hereby approves the A320 Aircraft as being in conformity with the provisions of the Purchase Agreement.

Said acceptance does not impair the rights of Spirit under the warranties relating to the A320 Aircraft set forth in the Purchase Agreement.

             specifically recognizes that it has waived any right it may have at law or otherwise to revoke this acceptance of the A320 Aircraft.

 

RECEIPT AND ACCEPTANCE OF THE ABOVE-

DESCRIBED A320 AIRCRAFT ACKNOWLEDGED

By:  

 

Title:  

 

Date:  

 

Location:  

 

 

Spirit Airlines – A320 Family   Exh. D-1


EXHIBIT D

 

CERTIFICATE OF ACCEPTANCE

for A321 Aircraft

In accordance with the terms of that certain A320 Family Purchase Agreement dated as of             , between Spirit Airlines, Inc., (“Spirit”) and AVSA, S.A.R.L. (“AVSA”) (the “Purchase Agreement”), the Technical Acceptance Process (as such term is defined in the Agreement) relating to the Airbus A321 aircraft, Manufacturer’s Serial Number:             , U.S. Registration Number:              with two (2) [Manufacturer]              series Propulsion Systems [Engines] installed thereon, serial nos.              (position #1) and              (position #2) (the “A321 Aircraft”), has taken place at              on the              day of                     ,             .

In view of said tests having been carried out with satisfactory results, Spirit hereby approves the A321 Aircraft as being in conformity with the provisions of the Purchase Agreement.

Said acceptance does not impair the rights of Spirit under the warranties relating to the A321 Aircraft set forth in the Purchase Agreement.

             specifically recognizes that it has waived any right it may have at law or otherwise to revoke this acceptance of the A321 Aircraft.

 

RECEIPT AND ACCEPTANCE OF THE ABOVE- DESCRIBED A321 AIRCRAFT ACKNOWLEDGED
By:  

 

Title:  

 

Date:  

 

Location:  

 

 

Spirit Airlines – A320 Family   Exh. D-1


EXHIBIT E

BILL OF SALE

for A319 Aircraft

Know all persons by these presents that AVSA, S.A.R.L. (“AVSA”), a société à responsabilité limitée organized and existing under the laws of the Republic of France, whose address is 2 rond-point Maurice Bellonte, 31700 Blagnac, FRANCE, is the owner of the title to the following airframe (the “Airframe”), the attached engines as specified (the “Engines”) [Propulsion System] and all appliances, components, parts, instruments, accessories, furnishings, modules and other equipment of any nature, excluding buyer furnished equipment, incorporated therein, installed thereon or attached thereto on the date hereof (the “Parts”):

 

MANUFACTURER OF AIRFRAME:   MANUFACTURER OF ENGINES:
AIRBUS S.A.S.   [                             ]
MODEL:       A319-100   MODEL:      [     ]
MANUFACTURER’S   SERIAL NUMBERS:
SERIAL NUMBER:         [        ]   LH :    [     ]
  RH :    [     ]
REGISTRATION NO:    [        ]  

The Airframe, Engines and Parts are hereafter together referred to as the aircraft (the “A319 Aircraft”).

AVSA does this      day of                      sell, transfer and deliver all of its above described rights, title and interest to the A319 Aircraft to the following company forever, said A319 Aircraft to be the property thereof:

SPIRIT AIRLINES, INC. (the “Buyer”)

AVSA hereby warrants to the Buyer that it has on the date hereof good and lawful right to sell, deliver and transfer title to the A319 Aircraft to the Buyer and that there is hereby conveyed to the Buyer on the date hereof good, legal and valid title to the A319 Aircraft, free and clear of all liens, claims, charges, encumbrances and rights of others, and that it would forever warrant and defend such title against all claims and demands of whatever nature arising out of such liens, claims, charges, encumbrances and rights attached to this A319 Aircraft prior to Delivery.

IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed by its duly authorized representative this          day of [            ]

 

AVSA, S.A.R.L.
By:  

 

Title:  
Signature:  

 

Spirit Airlines – A320 Family   Exh. E-1


EXHIBIT E

 

BILL OF SALE

for A320 Aircraft

Know all persons by these presents that AVSA, S.A.R.L. (“AVSA”), a société à responsabilité limitée organized and existing under the laws of the Republic of France, whose address is 2 rond-point Maurice Bellonte, 31700 Blagnac, FRANCE, is the owner of the title to the following airframe (the “Airframe”), the attached engines as specified (the “Engines”) [Propulsion System] and all appliances, components, parts, instruments, accessories, furnishings, modules and other equipment of any nature, excluding buyer furnished equipment, incorporated therein, installed thereon or attached thereto on the date hereof (the “Parts”):

 

MANUFACTURER OF AIRFRAME:   MANUFACTURER OF ENGINES:
AIRBUS S.A.S.   [                             ]
MODEL:       A320-200   MODEL:      [     ]
MANUFACTURER’S   SERIAL NUMBERS:
SERIAL NUMBER:         [        ]   LH :    [     ]
  RH :    [     ]
REGISTRATION NO:    [        ]  

The Airframe, Engines and Parts are hereafter together referred to as the aircraft (the “A320 Aircraft”).

AVSA does this      day of                      sell, transfer and deliver all of its above described rights, title and interest to the A320 Aircraft to the following company forever, said A320 Aircraft to be the property thereof:

SPIRIT AIRLINES, INC. (the “Buyer”)

AVSA hereby warrants to the Buyer that it has on the date hereof good and lawful right to sell, deliver and transfer title to the A320 Aircraft to the Buyer and that there is hereby conveyed to the Buyer on the date hereof good, legal and valid title to the A320 Aircraft, free and clear of all liens, claims, charges, encumbrances and rights of others, and that it would forever warrant and defend such title against all claims and demands of whatever nature arising out of such liens, claims, charges, encumbrances and rights attached to this A320 Aircraft prior to Delivery.

IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed by its duly authorized representative this          day of [            ]

 

AVSA, S.A.R.L.
By:  

 

Title:  
Signature:  

 

Spirit Airlines – A320 Family   Exh. E-1


EXHIBIT E

 

BILL OF SALE

for A321 Aircraft

Know all persons by these presents that AVSA, S.A.R.L. (“AVSA”), a société à responsabilité limitée organized and existing under the laws of the Republic of France, whose address is 2 rond-point Maurice Bellonte, 31700 Blagnac, FRANCE, is the owner of the title to the following airframe (the “Airframe”), the attached engines as specified (the “Engines”) [Propulsion System] and all appliances, components, parts, instruments, accessories, furnishings, modules and other equipment of any nature, excluding buyer furnished equipment, incorporated therein, installed thereon or attached thereto on the date hereof (the “Parts”):

 

MANUFACTURER OF AIRFRAME:   MANUFACTURER OF ENGINES:
AIRBUS S.A.S.   [                             ]
MODEL:       A321-200   MODEL:      [     ]
MANUFACTURER’S   SERIAL NUMBERS:
SERIAL NUMBER:         [        ]   LH :    [     ]
  RH :    [     ]
REGISTRATION NO:    [        ]  

The Airframe, Engines and Parts are hereafter together referred to as the aircraft (the “A321 Aircraft”).

AVSA does this      day of                      sell, transfer and deliver all of its above described rights, title and interest to the A321 Aircraft to the following company forever, said A321 Aircraft to be the property thereof:

SPIRIT AIRLINES, INC. (the “Buyer”)

AVSA hereby warrants to the Buyer that it has on the date hereof good and lawful right to sell, deliver and transfer title to the A321 Aircraft to the Buyer and that there is hereby conveyed to the Buyer on the date hereof good, legal and valid title to the A321 Aircraft, free and clear of all liens, claims, charges, encumbrances and rights of others, and that it would forever warrant and defend such title against all claims and demands of whatever nature arising out of such liens, claims, charges, encumbrances and rights attached to this A321 Aircraft prior to Delivery.

IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed by its duly authorized representative this          day of [            ]

 

AVSA, S.A.R.L.
By:  

 

Title:  
Signature:  

 

Spirit Airlines – A320 Family   Exh. E-1


EXHIBIT F

APPENDIX 1

 

LICENSE FOR USE OF SOFTWARE

 

1. Definitions

*****

 

2. Grant

*****

 

3. Personal License

*****

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. F, App.1-1


EXHIBIT F

APPENDIX 1

 

4. Copies

*****

 

5. Term

*****

 

6. Conditions of Use

*****

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. F, App.1-2


EXHIBIT F

APPENDIX 1

 

*****

 

7. Training

*****

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. F, App.1-3


EXHIBIT F

APPENDIX 1

 

8. Proprietary Rights

*****

 

9. Copyright Indemnity

*****

 

10. Confidentiality

*****

 

11. Warranty

*****

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. F, App.1-4


EXHIBIT F

APPENDIX 1

 

*****

 

12. Liability and Indemnity

*****

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. F, App.1-5


EXHIBIT F

APPENDIX 1

 

*****

 

13. Excusable Delays

*****

 

14. Termination

*****

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. F, App.1-6


EXHIBIT F

APPENDIX 1

 

15. General Provisions

 

15.1. This Software License or part thereof will not be assigned to a third party without the prior written consent of the other party except that the Licensor may assign this License to any of the Licensor’s Members or Affiliates.

 

15.2 This Software License will be governed by the laws of the State of New York, USA.

 

15.3 In the event that any provision of this Software License should for any reason be held ineffective or unenforceable, such provision shall be deemed deleted from this License and the remainder of this Software License shall remain in full force and effect. The invalid provision shall be replaced by such valid one as the parties would have chosen had they been aware of such invalidity.

 

15.4 All notices and requests required or authorized hereunder shall be given in writing either by registered mail (return receipt requested) or by telefax. In the case of any such notice or request being given by registered mail, the date upon which the answerback is recorded by the addressee or, in case of a telefax, the date upon which the answerback is recorded by the sender’s telefax machine, shall be deemed to be the effective date of such notice or request.

 

Spirit Airlines – A320 Family   Exh. F, App.1-7


EXHIBIT F

APPENDIX 2

 

LICENSE AGREEMENT

BETWEEN

AIRBUS NORTH AMERICA CUSTOMER SERVICES, INC

AND

SPIRIT AIRLINES, INC

FOR

AIRBUS ON-LINE SERVICES

 

Spirit Airlines – A320 Family   Exh. F, App.2-1


EXHIBIT F

APPENDIX 2

 

LICENSE AGREEMENT

This License Agreement (the “Agreement”) is made this              day of May, 2004 by and between Airbus North America Customer Services, Inc., with a principal place of business at 198 Van Buren Street, Suite 300, Herndon, Virginia (“ANACS”) and Spirit Airlines, Inc., a Delaware corporation with its principal place of business at 2800 Executive Way, Miramar, Florida 33025 (“User”):

WHEREAS Airbus has developed and owns an original database containing technical and commercial documentation and information on aircraft manufactured by Airbus (as more fully defined below, the “Database”), via a set of services known as “Airbus On Line Services” (“AOLS”) and

WHEREAS Airbus has granted a license for use of AOLS to access the Database to its affiliate AVSA, S.A.R.L. (“AVSA”) and ANACS has obtained a license thereof from AVSA and

WHEREAS, ANACS’s license entitles ANACS to further sublicense use of AOLS to User under the terms and conditions set forth herein, and User wishes to obtain such sublicense in order to have access to the Database through AOLS in its operation of Airbus aircraft,

NOW THEREFORE, the parties, wishing to be mutually and legally bound, hereby agree as follows:

 

1. DEFINITIONS

*****

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. F, App.2-2


EXHIBIT F

APPENDIX 2

 

*****

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. F, App.2-3


EXHIBIT F

APPENDIX 2

 

*****

 

2. GRANT OF LICENSE

*****

 

3. LIMITATION OF RIGHTS

*****

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. F, App.2-4


EXHIBIT F

APPENDIX 2

 

4. TECHNICAL CHARACTERISTICS/ CONFIGURATION CHANGES

*****

 

5. ADMINISTRATOR AND AUTHORIZED USERS

*****

 

6. DATABASE AVAILABILITY

*****

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. F, App.2-5


EXHIBIT F

APPENDIX 2

 

*****

 

7. ELECTRONIC LOGS

*****

 

8. ELECTRONIC SIGNATURE

*****

 

9. CERTIFICATES

*****

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. F, App.2-6


EXHIBIT F

APPENDIX 2

 

10. PROTECTION OF INTELLECTUAL PROPERTY RIGHTS

*****

 

11. INTELLECTUAL PROPERTY RIGHTS INDEMNITY

*****

 

12. PRICE AND PAYMENT

*****

 

13. WARRANTY

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. F, App.2-7


EXHIBIT F

APPENDIX 2

 

*****

QUOTE

*****

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. F, App.2-8


EXHIBIT F

APPENDIX 2

 

*****

UNQUOTE

 

14. NONDISCLOSURE

*****

 

15. PERSONAL DATA PROTECTION

*****

 

16. EXCUSABLE DELAYS

*****

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. F, App.2-9


EXHIBIT F

APPENDIX 2

 

*****

 

17. TERMINATION

*****

 

18. GENERAL PROVISIONS

*****

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. F, App.2-10


EXHIBIT F

APPENDIX 2

 

*****

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. F, App.2-11


EXHIBIT F

APPENDIX 2

 

Wherefore, the Parties have agreed and, have executed this License on the date first above written:

 

AIRBUS NORTH AMERICA CUSTOMER SERVICES, INC.
By:  

 

SPIRIT AIRLINES, INC.
By:  

 

 

Spirit Airlines – A320 Family   Exh. F, App.2-12


EXHIBIT F

APPENDIX 2

ATTACHMENT 1

AIRBUS NORTH AMERICA CUSTOMER SERVICES (ANACS)

AOLS CATALOG

 

Spirit Airlines – A320 Family   Exh. F, App.2, Att. 1-1


EXHIBIT F

APPENDIX 2

ATTACHMENT 1

 

A. AIRBUS ON-LINE SERVICES - BASIC SERVICES

MAINTENANCE & ENGINEERING

Engineering Technical Data Service (ETDS)

The ETDS service shall provide access, via a document index, to the contents of:

 

   

Service Bulletins - issued since beginning of 1993 (SB’s after July 1997 in SGML; SB’s between 1993 and July 1997 in PDF)

 

   

Modification Information Document (MID)

 

   

All Operators Telex (AOT)

 

   

Flight Operations Telex (FOT)

 

   

Service Information Letter (SIL)

 

   

Consignes de Navigabilité (CN)

 

   

Airworthiness Directives (AD)

 

   

Technical follow-up (TFU)

 

   

Operators Information Telex (OIT)

Quarterly Service Report (QSR)

The QSR-WEB is the new electronic format of the Quarterly Service Report, featuring Web technology.

It contains, for all Airbus aircraft types:

 

   

The aircraft life history

 

   

The main monthly operational reliability characteristics for each operator (such as Aircraft in service, daily utilization, average flight duration, Dispatch and Operational Reliability)

 

   

Engine removal reliability data

 

   

ETOPS operations (if applicable)

Repair guide (ARGIAOG)

This service shall provide the Buyer with information about Suppliers’ authorized repair stations and the AOG stock locations.

 

Spirit Airlines – A320 Family   Exh. F, App.2, Att. 1-2


EXHIBIT F

APPENDIX 2

ATTACHMENT 1

 

Modification comparison list (ACCL)

The purpose of this service is to provide the Buyer with Modification Comparison Lists that are created for each and every aircraft delivered.

TRAINING

The training catalog is available.

MATERIAL

Spares Ordering

This service is already available in an autonomous mode (http://spares.airbus.com). The integration in Airbus On-Line Services Basic services is in progress.

GENERAL INFORMATION

Customer Services Catalog

The Customer Services Catalog is available.

Warranty Claim (CAWA)

Four main functions are available:

Warranty claims booking

Consultation of the warranty claims status

Consultation of statistics on response time regarding closed/open files

Consultation of warranty guide

Note : Warranty Services are aimed at people who have authority to file warranty claims.

Vendor Information Manual (VIM)

The VIM/E gives contact for major equipment Suppliers, who have signed Customer Support agreements with the Seller, including their Regional Customer Support facilities and equipment by aircraft type.

 

Spirit Airlines – A320 Family   Exh. F, App.2, Att. 1-3


EXHIBIT F

APPENDIX 2

ATTACHMENT 1

 

Supplier Product Support Agreement (SPSA)

The SPSA is the collection of the Agreements that the Seller has reached with its major Suppliers; these Agreements are transferable to the Buyer. These Agreements are based on the Seller’s GCP/General Conditions of Purchase, Part II, 450, 650 and 2000.

B. AIRBUS ON-LINE SERVICES - OPTIONAL SERVICES

 

1. Airbus Industrie Drawing Access (AIDA)

The AIDA service offers:

 

 

Mechanical Drawings for all Airbus aircraft types.

 

 

Data available: Drawing pictures (in raster format (TIFF/CCITTG4)) and Parts List / Parts Usage (in PDF).

 

 

Data access:

 

   

Access control: Information applicable to user fleet,

 

   

Direct access by drawing number, Parts List or Part Number,

 

   

Top down navigation by using the Part Lists,

 

   

Bottom up navigation by using the Part Usage,

 

   

Printing and downloading of any drawing,

 

   

Back up service: fax copy of the data.

 

2. Flight Crew Operating Manual (FCOM) Service

FCOM service offers:

 

 

Delivery on CD-ROM’s of the 4 volumes of the FCOM, under a specific format (HTML format) allowing a smart consultation on portable PC’s of the manual.

 

 

Possible customization of the manual, using a tool delivered to the same CD-ROM and allowing the customer to create its own CD-ROM’s for its pilots or make accessible the customized FCOM through its internal network.

 

 

This service offered today through LPC (Less Paper Cockpit) is now accessible through Airbus On-Line Services.

 

 

Possibility for end-users to download onto their personal computer the latest TRs and OEBs released by Airbus. Immediately after the latter are downloaded, the consultation process on the personal computer takes the information contained in the FCOM CD-ROM as baseline and amends this information with the TRs’ and OEBs’ information.

 

 

Possibility for users to provide Airbus with feedback through an e-mail tool integrated within the application

 

Spirit Airlines – A320 Family   Exh. F, App.2, Att. 1-4


EXHIBIT F

APPENDIX 2

ATTACHMENT 1

 

AOLS TECHNICAL CHARACTERISTICS

 

1. Workstation Specifications

 

 

Hardware requirements

 

   

PC Pentium 200 MHz with 128 MB RAM (256 MB recommended)

 

   

17 inches (20 inches recommended for Mechanical Drawings service) screen

 

   

Screen resolution 1 024X768 with 64K colors

 

   

1 GB hard drive

 

   

Modem 56Kbps V90 if using dial up or Ethernet board through WAN

 

   

Printer 300 dpi Laser A3/A4, Adobe compliant

 

 

Software requirements

 

   

Windows 95, 98, NT4

 

   

Netscape Navigator 4.51 or 4.7 US version Internet Explorer 5.01 SP1 or 5.5 SP1/SP2 US version

 

   

For MSIE the minimum requirement for the Java Virtual Machine (JVM) is 5.0 Release 5.0.0.3 167

 

   

Winzip 7.0

 

   

Browser PDF plug-in: Acrobat Reader 4.05 or higher

 

   

TIFF browser plug-in recommendations:

 

 

ViewDirector Prizm 2.3

Company: TMS Sequoia

http://www.tmssequoia.com

 

 

CSView 150

Company: CSU Software Solutions

http:Hwww.csu-software-solutions.com

 

2. Network Specifications

ANACS will support the following TCP/IP networks for accessing AOLS:

 

 

SITA AeroNet

 

 

Internet

 

 

ISDN/PSTN

 

 

Direct lines (leased lines)

The User has the choice of the network (company, bandwidth) according to its needs and budget, but ANACS recommends the following minimum configurations in terms of bandwidth for accessing services such as Airbus Mechanical Drawings:

 

Spirit Airlines – A320 Family   Exh. F, App.2, Att. 1-5


EXHIBIT F

APPENDIX 2

ATTACHMENT 1

 

Services

   Number of Users  
   1 to 10      11 to 25      26 to 50  

FCOM

     128 Kbps         256 Kbps         512 Kbps   

ETDS

     128 Kbps         256 Kbps         512 Kbps   

Drawings

     256 Kbps         512 Kbps         1 MKbps   

Notes:

 

   

If you do not have the exact data rate as in the above table, choose the nearest proposed bandwidth which maximizes your data rate.

 

   

To access more than one service, add the number of users and maximize the data rate selecting higher service used (considering that Mechanical Drawings is the dimensioning service compare to ETDS and FCOM).

 

3. Certificate Specification

Connection to AOLS requires a Certificate (standard X509) delivered via the User’s Administrator. This Certificate shall be embedded into the user browser and protected by an 8-digit password.

All procedures, rules and responsibilities associated with such Certificate are described in the Certificate Practice Statement (CPS).

 

Spirit Airlines – A320 Family   Exh. F, App.2, Att. 1-6


EXHIBIT F

APPENDIX 2

ATTACHMENT 2

LOGO

With this form completed, the Company will be provided with a free of charge access to the following:

 

 

One (1) or two (2) Administrator certificates and a reasonable quantity of end-user certificates, depending on the Airbus fleet operated by the company.

 

 

Basic Services, (free of charge)

 

 

Technical Data in PDF Format: free of charge when [the Company] already subscribed to the revision service (valid Purchase order or contractual clause)

 

 

Optional Services: free of charge when already covered by a Purchase Order or a valid contractual clause.

This information will be detailed in Airbus acknowledgement.

The access to Airbus On-Line Services shall be subject to the Airbus On-Line Services License Agreement, Appendix 2 to Exhibit F to the Purchase Agreement signed by [the Company].

 

For and on behalf of [the Company]
Signature
Name
Title
Date

 

Spirit Airlines – A320 Family   Exh. F, App.2, Att. 2-1


EXHIBIT F

APPENDIX 2

ATTACHMENT 2

 

LOGO

With this form completed, the Company will be provided with a free of charge access to the following:

 

 

One (1) or two (2) Administrator certificates and a reasonable quantity of end-user certificates, depending on the Airbus fleet operated by the company.

 

 

Basic Services, (free of charge)

 

 

Technical Data in PDF Format: free of charge when [the Company] already subscribed to the revision service (valid Purchase order or contractual clause)

 

 

Optional Services: free of charge when already covered by a Purchase Order or a valid contractual clause.

This information will be detailed in Airbus acknowledgement.

The access to Airbus On-Line Services shall be subject to the Airbus On-Line Services License Agreement, Appendix 2 to Exhibit F to the Purchase Agreement signed by [the Company].

 

For and on behalf of [the Company]

Signature
Name
Title
Date

 

Spirit Airlines – A320 Family   Exh. F, App.2, Att. 2-1


EXHIBIT F

TECHNICAL DATA AND SOFTWARE SERVICES

GENERAL

This Exhibit F lists the form, type, quantity and delivery dates for the Technical Data and Software Services (hereinafter “Technical Data”) to be provided to the Buyer pursuant to Clause 14 of the Agreement.

The Technical Data are published in accordance with ATA Specification 100 revision 23, with the exception of certain Component Maintenance Manuals, which may be written to an ATA Specification 100 revision other than revision 23.

The designation “C” after the title of a Technical Publication indicates that such Technical Publication may be customized.

 

1. ENGINEERING DOCUMENTS

 

1.1 Installation and Assembly Drawings (IAD)—C

The IAD will be delivered according to the Buyer’s standard for the major Assembly and Installation drawings, including detail drawings.

 

1.2 Drawing Number Index (DNI)—C

The DNI lists applicable drawings of the Aircraft delivered under the Agreement.

 

1.3 Process and Material Specification (PMS)

The PMS contains data related to manufacturing processes, material identification and treatments used in the construction and assembly of the Aircraft.

 

1.4 Standards Manual (SM)

The SM contains data about Seller approved standards and includes cross-reference lists. The SM will include US standards/equivalents for all hardware clamps, O-rings, bearings, fasteners, sealants, adhesive and compounds, raw materials, processes and procedures.

 

1.5 Electrical Load Analysis (ELA)

The Electrical Load Analysis provides the necessary minimum/maximum electrical load used by the various aircraft systems/subsystems in different configurations and flight phases.

 

Spirit Airlines – A320 Family   Exh. F-1


EXHIBIT F

 

2. MAINTENANCE AND ASSOCIATED MANUALS

 

2.1 APU Build-up Manual (ABM)

The ABM follows the format adopted for the Power Plant Build-up Manual.

 

2.2 Aircraft Maintenance Manual (AMM)—C

The component location section of the AMM will show those components detailed in the AMM maintenance procedures. The troubleshooting part is covered in Subparagraph 2.21 below.

*Aircraft Maintenance Manual Chapter 05 Time Limits (Service Life Limits) and Maintenance Checks are only delivered in hard copies.

 

2.3 Aircraft Schematics Manual (ASM)—C

The ASM is part of the Wiring Manual. Supplied as a separate manual for schematics.

 

2.4 Aircraft Wiring Manual (AWM)—C

The AWM is part of the Wiring Manual. Supplied as a separate manual for wirings.

 

2.5 Aircraft Wiring Lists (AWL)—C

The AWL is part of the Wiring Manual. Supplied as a separate document for lists. The AWL includes wire terminations, connector, terminal, strip locations, wire routings, and clamping diagrams.

 

2.6 Component Location Manual (CLM)

The CLM is designed to provide a quick and accurate means to locate a component.

 

Spirit Airlines – A320 Family   Exh. F-2


EXHIBIT F

 

2.7 Consumable Material List (CML)

The CML details the characteristics and gives procurement sources of consumable materials such as grease, oil, etc.

 

2.8 Duct Repair Manual (DRM)

The DRM contains all the data necessary to locate, identify, repair and/or replace sub-assemblies of metallic ducts. It also includes details of tests necessary after repair.

 

2.9 Fuel Pipe Repair Manual (FPRM)

The FPRM provides workshop repair procedures and data for specific fuel pipes, after removal from any aircraft of the Manufacturer of the type of the Aircraft.

 

2.10 Illustrated Parts Catalog (IPC)—C

The IPC identifies and illustrates all line replaceable parts and units of the aircraft, excluding the power plant parts.

 

2.11 Illustrated Parts Catalog (power plant) (PIPC)—C

The PIPC covers line replaceable parts and units of the power plant, provided by the Propulsion Systems manufacturer.

 

2.12 Illustrated Tool and Equipment Manual (TEM)

The TEM provides information on Ground Equipment and Tools listed in the Seller’s Aircraft Maintenance Manual.

 

2.13 Maintenance Facility Planning (MFP)

The MFP provides information that will assist airline personnel concerned with long term planning of ramp or terminal operations, Aircraft maintenance on the ramp and in the hangar, overhaul and testing of structure and system components.

 

2.14 Maintenance Planning Document (MPD)

The MPD provides maintenance data necessary to plan and conduct Aircraft maintenance checks and inspections.

 

2.15 Support Equipment Summary (SES)

The SES lists support equipment recommended by the Seller, the Propulsion Systems manufacturer and Vendors.

 

Spirit Airlines – A320 Family   Exh. F-3


EXHIBIT F

 

2.16 Tool\Equipment Drawings (TED)

TEDs will be supplied in the form of aperture cards for the Seller and, when available, Vendor maintenance tools.

 

2.17 Tool and Equipment Drawing Index (TEI)

The TEI is an alpha-numeric listing of the TED’s.

 

2.18 Tool and Equipment Bulletin (TEB)

The TEB provides advance information related to tools and test equipment development.

 

2.19 Trouble Shooting Manual (TSM)—C

The TSM complements the CFDS and provides trouble-shooting data in the following three levels:

 

  Level 1 - Aimed at line use. Fault isolation guidance for systems or parts of systems monitored mainly by CFDS. Also guidance for systems not monitored by CFDS.

 

  Level 2 - Aimed at hangar use. Fault isolation guidance for non-CFDS monitored systems in the form of functional block diagrams, charts and tables.

 

  Level 3 - Aimed at engineering use. List of CFDS messages and decoding of troubleshooting data (decoding of coded messages provided by the CFDS). Level 3 is supplied on floppy disk.

 

3. MISCELLANEOUS DOCUMENTATION

 

3.1 Airplane Characteristics for Airport Planning (AC)

The AC will be in general accordance with Specification NAS 3601.

 

3.2 Aircraft Recovery Manual (ARM)

The ARM provides the following planning information: preparing and moving a disabled aircraft that may be obstructing airport traffic.

 

Spirit Airlines – A320 Family   Exh. F-4


EXHIBIT F

 

3.3 Cargo Loading System Manual (CLS)

The CLS details handling procedures for the Cargo Loading System.

 

3.4 Crash Crew Chart (CCC)

The CCC provides information concerning access to the Aircraft interior, location of safety equipment, hazardous liquids, etc.

 

3.5 List of Radioactive and Hazardous Elements (LRE)

The LRE provides information on components and materials for which specific precautions have to be taken.

 

3.6 List of Applicable Publications (LAP)—C

The LAP will record the Seller’s various Airframe Technical Data indicating the last valid revision number and issue date.

 

3.7 Livestock Transportation Manual (LTM)

The LTM details the facilities, equipment and procedures necessary for live animal transportation in aircraft of the Manufacturer of the type of the Aircraft.

 

3.8 Service Bulletins (SB)—C

The Buyer will receive all Service Bulletins applicable to the Aircraft.

 

3.9 Service Information Letters (SIL)

SILs give information of a general nature and also about minor changes or inspections the Buyer may wish to apply under the Buyer’s authority.

 

3.10 Transportability Manual (TM)

The TM gives cargo hold dimensions for currently available cargo Aircraft, transportation information and requirements for large Aircraft components. Component dimensions, weights and shelf life limitations are also given.

 

3.11 Supplier Product Support Agreements (SPSA)

The SPSA is a collection of product support conditions negotiated by the Manufacturer with the suppliers of Aircraft equipment.

 

Spirit Airlines – A320 Family   Exh. F-5


EXHIBIT F

 

3.12 Vendor Information Manual (VIM)

The VIM provides Vendor contact information.

 

3.13 Vendor Information Manual (GSE) (VIM/GSE)

The VIM/GSE gives contact names and addresses of Ground Support Equipment (GSE) vendors and their product support organizations.

 

4. OPERATIONAL MANUALS

 

4.1 Abnormal\Emergency Check List\Quick Reference Handbook (CL\QRH)—C

The CL is an extract from the FCOM presented as a booklet for quick in-flight use.

 

4.2 FAA Approved Flight Manual (FM)—C

The AFM provides Aircraft performance operating limitations and other flight data required by the relevant Airworthiness Authorities for certification. It includes the Configuration Deviation List (CDL).

 

4.3 Flight Crew Operating Manual (FCOM)—C

The FCOM provides Aircraft and systems descriptions, normal, abnormal and emergency procedures as well as operational performance.

 

4.4 Master Minimum Equipment List (MMEL)

The MMEL defines the components and the related conditions under which, when the components are defective, the Aircraft may be cleared for flight. In addition, the MMEL provides the necessary information to establish the Buyer’s own Minimum Equipment List (MEL).

 

4.5 Performance Engineering Program (PEP)

The PEP consists of a Low Speed Performance data base and a High Speed Performance data base together with their respective programs. The Performance Engineering Program may be used by the Buyer under the license conditions set forth in Appendix 1 to this Exhibit F.

The Low Speed Performance programs consist of the Take-off and Landing Chart computation program (TLC) which permits the computation of:

 

   

regulatory take-off and landing performance,

 

Spirit Airlines – A320 Family   Exh. F-6


EXHIBIT F

 

   

noncertified take-off performance accounting for runway data and weather, together with the Tabulation and Interpolation program (TAB), issued with the AFM, which permits the reading, editing and interpolation of the tables listed in the AFM.

The High Speed Performance programs are the In Flight Performance computation program (IFP) which permits computation of Aircraft performance for each flight phase and the Aircraft Performance Monitoring program (APM) which permits analysis of Aircraft cruise performance from data recorded during stabilized flight periods.

 

4.6 Performance Program Manual (PPM)

The PPM is the users’ guide for the Performance Engineering Program (PEP).

 

4.7 Weight and Balance Manual (WBM) and

Weight and Balance Manual Supplements—C

The corresponding supplements:

 

   

Delivery Weighing Report,

 

   

Equipment List,

will be delivered with each Aircraft.

 

5. OVERHAUL DATA

 

5.1 Cable Fabrication Manual (CFM)

The CFM contains all the data necessary to locate, identify, manufacture and test control cables used on the Aircraft. An appendix contains cable end fitting specification sheets, and detailed manufacturing instructions.

 

5.2 Component Documentation Status (CDS)—C

The CDS lists Component Maintenance Manuals in accordance with Subparagraphs 5.4 and 5.5 below.

 

5.3 Component Evolution List (CEL)

The CEL is a noncustomized document listing all components on the Aircraft and also gives the evolution of each component.

 

Spirit Airlines – A320 Family   Exh. F-7


EXHIBIT F

 

The information is provided in order of:

 

   

part number

 

   

FSCM

 

   

ATA reference.

 

5.4 Component Maintenance Manual Manufacturer (CMMM)

The CMMM contains all the data necessary to locate, identify and maintain Aircraft components manufactured by the Seller.

 

5.5 Component Maintenance Manual Vendor (CMMV)

The Seller will ensure that each Vendor of repairable components will deliver to the Buyer a Component Maintenance Manual Vendor with revision service.

 

6. STRUCTURAL MANUALS

 

6.1 Nondestructive Testing Manual (NTM)

The NTM supplies Airframe data necessary to carry out nondestructive testing.

 

6.2 Structural Repair Manual (SRM)

The SRM contains descriptive information for identification and repair of the Airframe primary and secondary structure and will include substantial structural analysis.

 

Spirit Airlines – A320 Family   Exh. F-8


EXHIBIT “F”

 

FORM

 

CD-A CD-ROM: Advanced Consultation and Navigation System

 

CD-P CD-ROM: in PDF – Portable Document Format

 

D DISKETTE (Floppy Disk)

 

DD DIGITAL DATA. Stands generally for SGML format in MS Word Format.

 

DVD DIGITAL VERSATILE DISK.

 

OL-A ON-LINE through AOLS (Airbus On-Line Services): Advanced Consultation and Navigation System

 

P1 PRINTED ONE SIDE. Refers to manuals in paper with print on one side of the sheets only.

 

P2 PRINTED BOTH SIDES. Refers to manuals with print on both sides of the sheets.

 

SGML STANDARD GENERALIZED MARK-UP LANGUAGE. Which allow further data processing by the Buyer.

 

Spirit Airlines – A320 Family   Exh. F-9


EXHIBIT “F”

 

TYPE

 

C CUSTOMIZED. Refers to manuals which are customized to specific Airbus customer/ operator fleet or aircraft.

 

G GENERIC. Refers to manuals which are for all aircraft types/models/series.

 

E ENVELOPE. Refers to manuals which are not customized.

 

P PRELIMINARY. Refers to preliminary data or manuals which may consist of either:

 

   

one time issue not maintained by revision service, or

 

   

preliminary issues maintained by revision service until final manual or data delivery, or

 

   

supply of best available data under final format with progressive completion through revision service.

ATA

Manuals established in general compliance with ATA 100 Revision 23 and digital Standards established in general compliance with ATA Specification 2200 (iSpec 2200), Information Standards for Aviation Maintenance.

Subsequent revisions of the ATA Specification will be considered.

DELIVERY

Delivery of Technical Data is expressed either as the number of days prior to delivery of the first Aircraft or as nil (0), which designates the date of delivery of the first Aircraft.

It is agreed that the number of days indicated will be rounded up to the next regular revision release date.

 

Spirit Airlines – A320 Family   Exh. F-10


EXHIBIT “F”

 

QUANTITY

Self-Explanatory. Subject to reasonable changes six (6) months after entry-into-service.

MANUALS AVAILABLE (headlines)

1 - ENGINEERING DOCUMENTS

2 - MAINTENANCE & ASSOCIATED MANUALS

3 - MISCELLANEOUS PUBLICATIONS

4 - OPERATIONAL MANUALS AND DATA

5 - OVERHAUL DATA

6 - STRUCTURAL MANUALS

 

NOMENCLATURE

   Abbr    Form    Type    ATA    *****      *****      *****  
OPERATIONAL MANUALS AND DATA                     

Flight Crew Operating Manual

   FCOM    P2    C    NO      *****         *****         *****   
   FCOM    CD-A    C    NO      *****         *****         *****   
   FCOM    OL-A    C    NO      *****         *****         *****   
   FCOM    SGML    C    NO      *****         *****         *****   

Flight Manual

   FM    P1    C    NO      *****         *****         *****   

Master Minimum Equipment List

   MMEL    P2    C    NO      *****         *****         *****   
   MMEL    SGML    C    NO      *****         *****         *****   

Quick Reference Handbook

   QRH    P2    C    NO      *****         *****         *****   

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. F-11


EXHIBIT “F”

 

Trim Sheet

   TS    DD    C    NO      * ****      * ****      * **** 

Weight and Balance Manual

   WBM    P1    C    YES      * ****      * ****      * **** 

Performance Engineer’s Programs

   PEP    CD-A    C    NO      * ****      * ****      * **** 
   PEP    OL-A    C    NO      * ****      * ****      * **** 

Performance Programs Manual

   PPM    CD-A    C    NO      * ****      * ****      * **** 

 

WB = Wide Body: A310/A300-600    SA = Single Aisle: A318/A319/A320/A321    LR = Long range: A330/A340

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. F-12


EXHIBIT “F”

 

NOMENCLATURE

  

Abbr

   Form      Type      ATA      *****      *****      *****  
MAINTENANCE AND ASSOCIATED MANUALS                     

Aircraft Maintenance Manual

   AMM      DVD         C         YES         *****         *****         *****   
   AMM      CD-P         C         YES         *****         *****         *****   
   AMM      SGML         C         YES         *****         *****         *****   

Aircraft Schematics Manual

   ASM      CD-P         C         YES         *****         *****         *****   
   ASM      SGML         C         YES         *****         *****         *****   

Aircraft Wiring Lists

   AWL      CD-P         C         YES         *****         *****         *****   
   AWL      SGML         C         YES         *****         *****         *****   

Aircraft Wiring Manual

   AWM      CD-P         C         YES         *****         *****         *****   
   AWM      SGML         C         YES         *****         *****         *****   

Component Location Manual

   CLM      CD-P         C         NO         *****         *****         *****   

Consumable Material List

   CML      CD-P         G         YES         *****         *****         *****   

Duct Repair Manual

   DRM      CD-P         E         NO         *****         *****         *****   

Ecam System Logic Data

   ESLD      CD-P         E         NO         *****         *****         *****   

Electrical Load Analysis

   ELA     

 

PDF/R

TF/XLS

  

  

     C         NO         *****         *****         *****   

Electrical Standard Practices Manual

   ESPM      CD-P         G         YES         *****         *****         *****   
   ESPM      SGML         G         YES         *****         *****         *****   

Electrical Standard Practices booklet

   ESP      P2         G         NO         *****         *****         *****   

Flight Data Recording Parameter Library

   FDRPL      CD-A         E         NO         *****         *****         *****   

 

WB = Wide Body: A310/A300-600   SA = Single Aisle: A318/A319/A320/A321   LR = Long range: A330/A340

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. F-13


EXHIBIT “F”

 

NOMENCLATURE

  

Abbr

   Form      Type      ATA      *****      *****      *****  
MAINTENANCE AND ASSOCIATED MANUALS                     

Fuel Pipe Repair Manual

   FPRM      CD-P         G         NO         *****         *****      

NOMENCLATURE

  

Abbr

   Form      Type      ATA      *****      *****      *****  
MAINTENANCE AND ASSOCIATED MANUALS                     

Illustrated Parts Catalog (Airframe)/Additional Cross Reference Table

   IPC/ACRT      DVD         C         YES         *****         *****         *****   
   IPC/ACRT      CD-P         C         YES         *****         *****         *****   
   IPC/ACRT      SGML         C         YES         *****         *****         *****   

Illustrated Parts Catalog (Power Plant)

   PIPC      CD-P         C         NO         *****         *****         *****   

Maintenance Facility Planning

   MFP      CD-P         E         NO         *****         *****         *****   

Maintenance Planning Document

   MPD      CD-P         E         YES         *****         *****         *****   

Maintenance Review Board

   MRBR      P2         E         NO         *****         *****         *****   

Support Equipment Summary

   SES      CD-P         G         NO         *****         *****         *****   

Tool and Equipment Bulletins

   TEB      OL-A         E         NO         *****         *****         *****   

Tool and Equipment Drawings

   TED      OL-A         E         NO         *****         *****         *****   

Tool and Equipment Index

   TEI      CD-P         E         NO         *****         *****         *****   

Illustrated Tool and Equipment Manual

   TEM      CD-P         E         YES         *****         *****         *****   

Engineering Documentation Combined Index

   EDCI      DVD         C         NO         *****         *****         *****   

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. F-14


EXHIBIT “F”

 

Trouble Shooting Manual    TSM    SGML    C    YES    *****    *****    *****
   TSM    DVD    C    YES    *****    *****    *****
   TSM    CD-P    C    YES    *****    *****    *****

 

WB = Wide Body: A310/A300-600   SA = Single Aisle: A318/A319/A320/A321   LR = Long range: A330/A340

 

***** Confidential portions of the material have been omitted and filed separately with the Securities and Exchange Commission.

 

Spirit Airlines – A320 Family   Exh. F-15


EXHIBIT “F”

 

NOMENCLATURE

   Abbr      Form      Type      ATA      *****      *****     

*****

STRUCTURAL MANUALS                     

Nondestructive Testing Manual

     NTM         CD-P         E         YES         *****         *****      

Nacelle Structural Repair Manual

     NSRM         CD-P         E         YES         *****         *****       *****

Structural Repair Manual