Exhibit 10.20


 


 


PORTIONS OF
THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH


THE SECURITIES
AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR


CONFIDENTIAL
TREATMENT.  SUCH PORTIONS ARE DESIGNATED
[REDACTED].


 


 


SERVICES
ORDERING AGREEMENT


 


THIS
SERVICES ORDERING AGREEMENT (“Agreement”) is made as of this
7th day of March 2003 by and between Goodrich – Aviation Technical Services,
Inc., (“ATS”) a Delaware corporation, and Hawaiian Airlines, Inc. a Hawaii
corporation (“Customer”).


 


RECITALS


 


A.  Customer desires that ATS provide Customer with certain
maintenance, repair, overhaul and other services with respect to the
maintenance, repair, overhaul and modification of its Aircraft (as defined
herein).


 


B.  ATS desires to provide such services on the terms and conditions
set forth herein.


 


Now,
therefore, in consideration of the mutual covenants herein contained, the
parties hereby agree as follows:


 


AGREEMENTS


 


1.  Definitions. 
Capitalized terms used but not defined herein shall have the meanings
given in Exhibit 1 hereto.


 


2.  Airframe
Services.  During the term of this
Agreement, ATS will provide Airframe Services in accordance with mutually
agreed written services orders, substantially in the form of the “Airframe
Services Order” form attached as Exhibit 3 hereto (each, an “Aircraft Services
Order”). Each Airframe Services Order shall set forth the applicable Workscope,
schedule and pricing information pursuant to the terms of Section 3 hereof.
Each Airframe Services Order shall be signed by a duly authorized
representative of each party.  Terms and
conditions set forth in any Airframe
Services Order shall apply only to the performance of the Airframe Services on
the Aircraft identified in such Airframe Services Order and, unless expressly
referenced in any additional subsequent Airframe Services Order, shall not
apply to any subsequent Airframe Services Order under this Agreement.


 


3.  Airframe Services Terms and Conditions.


 


3.1.  Charges/Fees for Services.  Charges for Airframe Services provided to
Customer in connection with this Agreement shall be as follows:


 


3.1.1.  Basic Services.  Regardless of the actual number of labor
hours expended by ATS, ATS shall perform the Basic Services, if any, specified
in an Airframe Services Order at a charge equal to the Basic Services Fixed Fee
established in the Airframe Services Order, plus charges for materials and
third party services pursuant to Section 3.3. 
The Basic Services Fixed Fee shall include, without additional labor
charge, all labor as may be required
to complete the Basic Services in accordance with the Basic Services Workscope,
but shall not include Additional Work, or any changes to the engineering order
mix, the content of the Basic Services 


 


1

















 


Workscope, any Service Bulletins, any
deviation from or failure of the assumptions and conditions set forth in the
Workscope, or similar changes that would increase the time required to
perform the Basic Services.


 


3.1.2.  Additional Work.  ATS shall perform the Additional Work on a
Time and Materials Basis, except as may be otherwise agreed by Customer and
ATS.


 


3.2.  Labor.  The “Labor Rate” shall be the rate per hour specified on Exhibit
2 hereto.  Except as otherwise provided
on Exhibit 2 hereto, the Labor Rate shall apply to all categories of ATS labor
in connection with the Airframe Services, including without limitation labor
incident to expediting services, labor time otherwise chargeable at applicable
overtime rates, engineering services, inspection services, NDT/NDI, parts
research services, AOG services, development engineering services, direct lead
labor time, and direct quality control labor time.


 


3.3.  Material Charges.


 


3.3.1.  Expendables and Consumables.  ATS shall bill Customer for the cost of
Expendables and Consumables used by ATS in connection with the Airframe
Services at the fixed rate specified on Exhibit 2 hereto.  Charges for Expendables and Consumables will
be included in the Invoices.


 


3.3.2.  Other Materials.  Parts, materials and third party services
used or consumed in connection with the Airframe Services (other than
Expendables and Consumables) shall be charged to Customer at their actual cost
plus a mark-up in the amount set forth on Exhibit 2 hereto.  For purposes of this Section 3.3.2,
divisions or business units of Goodrich Corporation other than Aviation
Technical Services Division shall be considered third parties and parts or
services obtained from such divisions or business units shall be charged to
Customer in accordance with this Section 3.3.2.  Outside services include, without limitation, non-destructive
testing, plating, machining, fueling/defueling, parts fabrication and oxygen
bottle servicing.


 


3.4.  Estimates of Delivery.  Notwithstanding anything to the contrary
contained in this Agreement, delivery dates or turn-times quoted or
communicated to Customer, whether orally or in writing, from time to time with
respect to Airframe Services shall in all cases be estimates of the time for
completion of performance of such services and in no event shall such estimates
be construed as binding delivery commitments. 
ATS shall notify promptly Customer if it reasonably believes that the
anticipated actual delivery dates or turn times will be materially different
from the estimated delivery dates or turn times quoted or communicated.


 


3.5.  Other Terms.


 


3.5.1.  Scheduling and Capacity.  Customer’s Designated Maintenance
Representative(s) shall be responsible for scheduling Airframe Services with
ATS.  Aircraft shall be delivered by
Customer to ATS on the date(s) specified in the Workscope, or as may otherwise
be agreed in writing between Customer and ATS. 
Customer shall use all reasonable efforts to provide ATS with at least
sixty (60) days advance notice of any change in the anticipated delivery of
Aircraft for Airframe Services from the date specified in the Workscope.  In all events, Customer 


 


2

















 


shall provide ATS with written schedule
confirmation not less than fourteen (14) days in advance of the delivery of any
Aircraft for Aviation Technical Services Division.  Acceptance of any Airframe Services Order is subject to
availability of space and capacity at ATS.


 


3.5.2.  Workscope, Parts Identification.


 


a.  Workscope.  The Basic Services Workscope for the Basic Services is attached
as Exhibit 3 to this Agreement.  For
each Aircraft for which ATS is to perform Additional Work hereunder, Customer
shall be responsible for developing and delivering to ATS an initial statement
of work at least fourteen (14) days in advance or such Aircraft’s scheduled
date for arrival at the Aviation Technical Services facility for Additional
Work which describes work tasks ATS is to provide.  ATS will review the initial statement of work and will advise
Customer of any necessary revisions or otherwise clarify details of the
statement of work prior to and during aircraft inspection.  After such review and agreement between
Customer and ATS as to the statement of work, Customer and ATS will execute a
definitive, written statement of work prior to ATS’s commencement of any
Additional Work on the Aircraft (the “Additional Work Workscope”) which
Additional Work Workscope shall contain turntimes agreed to for the Basic
Services plus Additional Work.


 


b.  Parts Identification.  As part of the Workscope, Customer shall
identify those certain parts and components (other than Expendable and
Consumable parts typically used or consumed in connection with Airframe
Services) that will need to be procured to accomplish the Workscope.  Such parts and components will include, but
are not limited to, the following: 
hardtime change components, systems modifications, interior material
changes, and other potential lead-time sensitive items.


 


c.  Engineering Services.  In the event that Customer will require that
ATS perform any engineering services or technical support as part of or in
connection with any Airframe Services, then Customer will provide to ATS, not
less than sixty (60) days prior to the delivery of the Aircraft for which such
services are to be provided, a description of the desired engineering
services.  Upon agreement by ATS, the
description of such engineering services shall be included in the Workscope for
the Airframe Services.


 


3.5.3.  Ferry and Flight Tests.  Customer shall have sole responsibility for
providing a crew and transporting all Aircraft to and from the Aviation
Technical Services facilities, including any flight test of an Aircraft
receiving Airframe Services hereunder, and shall pay all expenses related to
providing the crew and performing such transportation and flight testing.  ATS will provide technicians to assist in
flight test and redelivery.  Customer
shall take all action necessary to extend its insurance coverages required
hereunder to such Aircraft and any flight tests thereof. If during such test
flight the Aircraft does not comply with the test flight requirements, the
Aircraft shall be returned to ATS for corrections of those items that were
incorporated in the final Airframe Services Order before the test flight.  If requested by the Customer and/or the
Operator, and at Customer’s expense ATS shall also correct items that were not
included in the final Airframe Services Order as far as this can be achieved
with reasonable endeavors.  ATS shall
inform the Customer and/or the Operator of all maintenance issues discovered
during the test flight or during the course of performing the corrections or
Additional Work.


 


3

















 


3.5.4.  Technical Data. Not less than seven
(7) days prior to the commencement of any Airframe Services hereunder, Customer
shall have delivered copies to ATS of all necessary maintenance, repair or
overhaul manuals or instructions, including, without limitation, wiring diagrams,
engineering orders, structural, electrical and mechanical analyses and
approvals, and any approved maintenance program for a particular Aircraft,
which maintenance program will include a manual describing the relevant
maintenance and inspection program, and corresponding maintenance work cards
and forms, together with any other technical data required to accomplish the
services requested, regardless of whether such materials are those of Customer
or of original manufacturers or suppliers of the airframe or components thereon
(the “Technical Data”).  Customer shall
be solely responsible for, and shall bear any costs associated with, obtaining
any licenses or other rights from third parties necessary to enable ATS’s use
of the Technical Data in connection with Airframe Services, and such obligation
shall be a condition precedent to ATS’s performance of the Airframe Services.


 


3.5.5.  Designated Maintenance Representatives.  Customer shall designate in writing one or
more representatives of Customer each of whom shall have authority to authorize
execute binding authorizations and approvals for and on behalf of Customer any
Airframe Services or changes thereto, including but not limited to Non-Routine
Maintenance and any Buyer Request Items, and the hours necessary to perform
such Airframe Services.  ATS shall be
entitled to rely upon the authorizations and approvals of Customer’s Designated
Maintenance Representatives in the performance of the Airframe Services, and
Customer shall not dispute Airframe Services, nor the amounts due therefor,
unless ATS has been notified by Customer in writing that any Designated
Maintenance Representative is no longer authorized to bind Customer.  One Designated Maintenance Representative
shall be available at ATS Airframe during normal business hours while the
Airframe Services are being provided. 
ATS shall provide at its expense appropriate office accommodations for
not more than seven Designated Maintenance Representatives at ATS Airframe.  These accommodations will include one
lockable office and cubicle space for the remaining Designated Maintenance
Representatives, with access to computer hook-up, fax machines and
telephones.  Customer shall reimburse
ATS for all out-of-pocket expenses, long-distance telephone and fax expenses
incurred by ATS on account of the Designated Maintenance Representatives.  Customer shall be responsible for all
travel, lodging and related expenses incurred by the Designated Maintenance
Representatives.  Subject to reasonable
restrictions imposed by ATS to safeguard proprietary information and to
maintain the security and safety of ATS. 
ATS will allow the Designated Maintenance Representatives reasonable
access at all reasonable times (i) to the ATS records contemplated by Section
4.2.2 of this Agreement, (ii) to observe the performance of all Airframe
Services being performed by ATS for Customer, and (iii) to observe and inspect
all materials and parts obtained by ATS for use or installation on the
Aircraft.  The Designated Maintenance
Representatives, and all other employees, agents and representatives of
Customer, shall abide by ATS’s security and safety procedures and
restrictions.  Customer shall be
completely responsible for sickness or injury to its Designated Maintenance
Representatives and its other employees, including without limitation with
respect to death or injuries occurring at ATS Airframe unless caused by the
negligence reckleness, or intentional misconduct of ATS employees, agents or
representatives.


 


4

















 


3.5.6.  Warranty.  ATS shall warrant the Airframe Services exclusively as set forth
in Exhibit 3.5.6 to this Agreement.


 


4.  Customer Payments.


 


4.1.  Charges/Invoices.  Customer shall compensate ATS at the rates
and terms as provided in this Agreement for the various services rendered
hereunder by ATS.  Charges for costs or
expenses which this Agreement specifically provides are to be incurred by ATS
for the account of Customer shall be charged to Customer as provided
herein.  Such costs and expenses shall
be included in the Invoices, but identified separately.


 


4.2.  Time and Method of Payments.


 


4.2.1.  Invoicing. Except as may otherwise be
agreed by Customer and ATS in writing, ATS will submit to Customer an invoice
or invoices with respect to each Aircraft listing charges for the Airframe
Services and related parts and materials (the “Invoices”).  Payment of all Invoices shall be made by
wire transfer to the ATS account designated by ATS in writing to Customer.  ATS will issue invoices as defined in
Exhibit 2, Item 4.0. to Customer at least 3 days prior to completion of the
Airframe Services. ATS will prepare and submit to Customer an Invoice for all
labor and materials actually provided with respect to the applicable Aircraft beyond
the initial Airframe Services, together with an estimate of the balance for
materials and labor charges yet to be identified, which Invoice shall be due
and payable prior to the Aircraft’s departure from ATS Airframe.  Within ninety (90) days after the Aircraft’s
departure, ATS shall issue an Invoice itemizing the remaining balance for labor and materials acutely provided with
respect to the Aircraft, subject to supplementation based upon ATS’s receipt of
additional charges from third-party material suppliers; provided, however, ATS
shall notify Customer of the potential for such supplementation at the time it
issues such Invoice.  Any remaining
balance due ATS, will be due and payable thirty (30) days from the invoice
date. Notwithstanding the foregoing and in addition to any other remedy to
which ATS may be entitled, ATS may in its sole discretion demand complete
payment for one hundred percent100% of all labor and materials for Airframe
services with respect to any Aircraft at any time prior to the departure of
such Aircraft from ATS airframe if Customer is default in payment.  In the event ATS elects to require such
payment, Customer will be notified not less than five (5) days prior to the
scheduled departure of such Aircraft.


 


4.2.2.  Right of Customer to Review Records.  On the written request of Customer from time
to time during the Term of this Agreement (but not more frequently than once in
any twelve month period), Customer shall be permitted during normal business
hours to review ATS’ records related exclusively to (a) the manner and quality
of performance of Airframe Services on the Aircraft by ATS, and (b) the
accuracy of any fees or charges invoiced by ATS to Customer with respect to
Airframe Services provided by ATS.  The
right of Customer to review ATS records shall extend to any agent, consultant
or advisor of Customer reasonably acceptable to ATS which agrees to execute a
confidentiality agreement in form and substance satisfactory to ATS, and which
agrees to abide by applicable ATS safety and security restrictions.
Notwithstanding the foregoing, neither Customer nor its agents, consultants or
advisors shall have any right to review (i) information concerning the actual
labor hours expended by ATS to complete any Airframe Services performed on a
fixed fee basis, including Basic Services performed for the Basic Services
Fixed 


 


5

















 


Fee, and (ii) any other books and records of ATS,
including books and records relating to ATS’ fees or charges to any other
customer or ATS’ general accounts or financial information.


 


4.2.3.  Disputed Amounts.  Any Invoice submitted by ATS shall be final
as to Customer unless Customer shall have notified ATS in writing (a “Notice of
Disagreement”) within ninety (90) days of the Invoice date of a disagreement
with respect to all or a portion of any Invoice.  Such Notice of Disagreement shall specify the dollar amount of
the disagreement (the “Disputed Amount”) and identify in reasonable detail the
basis of Customer’s good faith
determination that the invoice amount is incorrect.  Customer shall pay when due all amounts other than Disputed
Amounts.  Following receipt by ATS of a
Notice of Disagreement, ATS and Customer shall use good faith efforts to
resolve such Disputed Amounts. If ATS and Customer are unable to satisfactorily
resolve such Disputed Amounts within thirty (30) days of ATS’ receipt of the
Notice of Disagreement, the Disputed Amount shall be settled by arbitration in
Honolulu, Hawaii, in accordance with the rules then prevailing of the American
Arbitration Association for Commercial Disputes; provided, however, that (i) in
the event of any conflict between this and any other provision of this
Agreement and such rules, the provisions of this Agreement shall prevail, and
(ii) any claim must be presented for arbitration within six (6) months of the
date upon which the aggrieved Party became aware of, or should have become
aware of, the alleged claim.  Failure to
assert a claim within six (6) months shall forever bar assertion of the
claim.  The results of any arbitration
shall be final and binding upon the Parties and judgment thereon may be entered
in any Hawaii court


 


4.2.4.  Late Payment Charges.  If any Customer payment obligation hereunder
is not paid when due, (i) Customer shall pay interest on such amount calculated
from the date such amount is due until the date of payment in full at the lower
of one and one-half percent per month or the maximum rate allowable under
applicable law, and (ii) ATS shall have the right upon notice to Customer to
suspend performance of Airframe Services and to terminate this Agreement.  No forbearance or course of dealing shall
affect these rights of ATS.


 


4.3.  Customer as Responsible Party.  Customer represents that it has all necessary
authority to authorize the Airframe Services on the Aircraft.  Notwithstanding any understandings or
agreements that Customer may have from time to time with third parties and
without limiting ATS’ rights or remedies upon Customer’s default, ATS shall
look solely to Customer for payment of all amounts owing under this Agreement
and the performance of all obligations of Customer under this Agreement.  Customer shall hold harmless and defend ATS
from and against any claims or charges asserted by any third parties claiming
an interest in the Aircraft, or questioning the purchase of the Airframe
Services by Customer from ATS.


 


5.  Material Supply.


 


5.1.  Material Procurement.  ATS will provide all Expendables and
Consumables which are required to perform the Airframe Services.  Parts and components (other than Expendables
and Consumables) identified pursuant to Section 3.5.2(b) of this Agreement as
required to complete the Workscope or otherwise necessary for the performance
of any Airframe Services will be provided by Customer or, upon mutual
agreement, by ATS at the charges specified in Section 3.3.  Customer and ATS agree to cooperate in order
to facilitate timely 


 


6

















 


procurement of parts and components. 
All parts and components to be furnished by Customer in connection with
the Airframe Services shall be provided at ATS Airframe no later than seven
days prior to commencement of the Airframe Services on the Aircraft for which
such part or component is required.  In
no event shall ATS be liable for any delayed or untimely performance hereunder
as a result of (i) failure by Customer to deliver to ATS any parts or
components (other than Expendables and Consumables) in a timely manner, or (ii)
failure by ATS to obtain any parts which Customer has requested ATS to obtain
on its behalf.


 


5.2.  Customer Parts and Equipment.  Any parts and material delivered to ATS
Airframe by or on behalf of Customer in connection with the Airframe Services
shall be handled by ATS through its normal incoming material receiving
inspection routine.  A Customer
Designated Maintenance Representative shall be notified by ATS of the
inspection findings, and shall direct ATS as to the disposition of inspected
items.  ATS will hold any parts and
material determined by Customer to be scrapped, returned to the vendor or
otherwise disposed of, including any parts or materials removed from Customer
Aircraft (collectively, “Excess Material”) at ATS’ facilities for a maximum
period of thirty (30) days, after which time Customer shall be responsible for
the removal, shipping and disposition of such Excess Material.  With ATS’ consent and agreement, Excess
Material may remain at ATS’ facilities beyond such thirty (30) day period upon
Customer’s payment to ATS of storage fees in an amount which in ATS’ judgment
is sufficient to compensate ATS for all costs and expenses related to the
storage of such Excess Material.  ATS
shall maintain any parts and materials supplied to ATS by Customer for use in connection
with the Airframe Services (and any Excess Material for the period specified
above) in a physically separated area within the ATS facilities, with
appropriate identification of such parts and materials as the property of
Customer.  ATS acknowledges and agrees
that title to such parts and materials supplied by Customer (and any Excess
Material) shall at all times remain with Customer.  Risk of loss with respect to the Customer supplied parts and
materials and Excess Materials shall remain with ATS while such items are
located in the ATS facility, and shall transfer to Customer at the time
physical possession of such parts or materials are delivered to Customer, or
such parts or materials are physically placed on an Aircraft.


 


6.  Taxes.  ATS shall pay
any federal, state or local taxes based upon ATS’ income or profits in
connection with payments received under this Agreement, including any gross
receipts or business and occupation taxes. 
Customer shall be responsible for the amount of any Washington State
sales or use taxes that result from the delivery of the Airframe Services
provided by ATS hereunder or the purchase, sale, lease, exchange, transfer,
replenishment or maintenance of parts and supplies and other personal property
for use in connection with the Airframe Services as contemplated hereby, except
for transactions for which an appropriate tax exemption certificate is
furnished to ATS by Customer.  The
amount of any such taxes for which Customer is responsible, if paid by ATS,
shall be billed to Customer from time to time during the term hereof.


 


7.  Proprietary
Rights.  Except as otherwise agreed in writing or as specifically provided
herein, each of ATS and Customer shall retain all of their own proprietary
rights of any kind in and to their respective patents, trademarks, names,
information, documents, procedures, methods or know-how that may be used or
disclosed in connection with the performance of the Airframe Services.  Any such items disclosed to the other
(including without limitation the terms of this Agreement) shall be held in
confidence and shall not be disclosed or provided to any third-party 


 


7

















 


without the specific prior written approval of the disclosing party,
and neither party shall reproduce any documents reflecting the same except for
copies necessary for its own internal usage. 
The foregoing obligations shall not apply to any such information,
documents, procedures, methods or know-how which: (i) at the time of disclosure
or thereafter is or becomes generally available to the public through no fault
or action by the receiving party or by its agents, representatives or
employees, (ii) is or becomes available to the receiving party on a
nonconfidential basis from a source other than the disclosing party or the
disclosing party’s employees, agents or representatives, which is not
prohibited from disclosing such portions by a contractual, legal or fiduciary
obligation, or (iii) was within the receiving party’s possession prior to its
being furnished to the receiving party by or on behalf of the disclosing party,
provided that the source of such information was not bound by a confidentiality
agreement with the disclosing party in respect thereof, or was not subject to
any duty, contractual or otherwise, prohibiting transmission of information to
the disclosing party.


 


8.  Certain Record Keeping and FAR Responsibilities.


 


8.1  ATS. 
Except as otherwise provided herein, in connection with the Airframe
Services provided by ATS hereunder, ATS shall comply with all provisions of the
FARs applicable thereto, including, but not limited to, Part 145, and shall
maintain all required records and documents pursuant thereto.  Such records and documents shall be
available for inspection at all times during ATS’ normal business hours.  In no event shall ATS be deemed to be an
airline for any purpose whatsoever.


 


8.2  Customer.  Notwithstanding anything to the contrary contained herein,
Customer shall have responsibility for and shall maintain all records, manuals
and otherwise comply with all provisions of the FARs applicable to its
operations, including, but not limited to, Part 121, and shall maintain all
required records and documents pursuant thereto.  Without limiting the generality of the foregoing, Customer shall
have sole responsibility for Customer’s compliance with records relating to
airworthiness directives, ground and crew qualifications, maintenance of
training records and records relating to parts histories, and creation and
maintenance of FAA required manuals, policies and procedures.  During the Term of this Agreement, ATS will
provide reasonable storage at ATS Airframe for records of Customer relating to
the Airframe Services.


 


9.  Independent Contractor. 
In performing its obligations hereunder, ATS shall in all respects be an
independent contractor and shall not be deemed an employee, agent, partner or
franchisee of Customer.  No partnership,
corporation, or other entity or relationship is created by this Agreement.


 


10.  Insurance; Liabilities.


 


10.1  Customer Policies and Limits.  Customer shall provide and maintain in
effect during the Term and until the expiration of the final Warranty Period
extended for the Airframe Services the insurance coverages described on Exhibit
10.1 hereto, with limits no less than those indicated on Exhibit 10.1.


 


10.2  ATS Policies and Limits.  ATS shall provide and maintain in effect
during the Term and until the expiration of the final Warranty Period extended
for the Airframe Services the 


 


8

















 


insurance coverages described on Exhibit 10.2
hereto, with limits no less than those indicated on Exhibit 10.2.


 


10.3  Requirements/Certificates.  Insurance coverages required herein of
either party (other than any self-insured portion) shall be provided through
insurance companies rated A or better by Best’s, or insurers of comparable
recognized responsibility.  The
reference to insurance limits in Exhibits 10.1 and 10.2 shall not in any event
limit either party’s liability to the other. 
Within 10 days of the date of this Agreement, and thereafter at the
request of either party, the other party shall furnish one or more certificates
of insurance indicating:


 


a)
that insurance of the types described above is provided in at least the limits
set forth above;


 


(b)
the name of the insurance company or companies carrying such coverage;


 


(c)
the effective date and expiration dates of such coverage or policies; and


 


(d)
that thirty (30) days advance written notice will be given to the parties of
any material change or alteration of the policies or coverage.


 


10.4  Limitations on Liability.  In any action brought by either party
seeking to obtain damages for breach of this Agreement or for failure to
perform the requirements of this Agreement, no damages or other relief shall be
awarded or permitted based upon expectations of continued performance or future
performance by the defaulting party for the then remaining Term of this
Agreement, and for purposes of such action this Agreement shall be deemed to
have expired effective as of the date of the claimed breach or failure to
perform, regardless of whether this Agreement has in fact been terminated as of
such date or any subsequent date. 
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER ATS NOR
CUSTOMER SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, COVER OR
LOST PROFITS SUSTAINED OR INCURRED AS A RESULT OF THE AIRFRAME SERVICES OR THE WARRANTY
PROVIDED FOR IN EXHIBIT 3.5.6 TO THIS AGREEMENT, REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, AND
REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE.


 


11.  Excused Performance. 
Neither party will be liable for, or be considered to be in breach of or
default under this Agreement on account of any delay or failure to perform as
required by this Agreement (other than with respect to the obligation to make
payments pursuant to Section 4 hereof) as a result of any cause or condition
beyond such party’s reasonable control, including, but not limited to:  fire, explosions, earthquakes, storms,
flood, wind, drought and acts of God or the elements; court orders; acts, delays
and failures to act by civil, military or other governmental authority;
strikes, lockouts, labor interruptions or slowdowns, riots, insurrections,
sabotage and war; breakdown or destruction of, or damage or casualty to, any
equipment, facilities or other property; interruption, suspension, curtailment
or other disruption of utilities; unavailability of materials, 


 


9

















 


supplies, parts, equipment, personnel or other necessary items; and,
acts or omissions of persons or entities other than such party (each such event
being herein sometimes referred to as an event of “Force Majeure”).  Upon the occurrence of an event or condition
of Force Majeure, ATS shall have reasonable opportunity to make alternative satisfactory
arrangements to perform its obligations under this Agreement.


 


12.  Term.  The term of
this Agreement shall commence effective as of the date first specified above
and shall continue for a period of five (5) years (the “Term”).  Unless otherwise agreed in writing, the
parties shall continue to perform their respective obligations under this
Agreement with respect to any Airframe Services Order where Airframe Services
are commenced prior to the expiration or early termination of this Agreement
and which are to be completed after expiration of this Agreement.  The provisions of Sections 3, 4, 6, 7, 8,
10, 11 and 13 shall survive any expiration or early termination of this
Agreement.


 


13.  Miscellaneous.


 


13.1  Notices.  All notices (including by facsimile) or other communications
required or permitted by this Agreement shall be in writing and shall be deemed
to have been duly given upon receipt if delivered in person by ATS to a
Designated Maintenance Representative or otherwise if delivered by United
States mail, postage prepaid, overnight delivery service, or facsimile, in each
case addressed as follows:


 


	
  (a)

  	
  if
  to Customer:

  Hawaiian Airlines

  P.O. Box 30008

  Honolulu, HI. 96820

  Attention:  Vice President Maintenance & Engineering

  Fax:  808-835-3380

  
	
   

  	
   

  
	
   

  	
  With
  a copy to:

  
	
   

  	
   

  
	
   

  	
  Vice
  President – General Counsel

  Fax: 808-835-3690

  
	
   

  	
   

  
	
  and

  	
   

  
	
   

  	
   

  
	
  (b)

  	
  if
  to ATS:

  
	
   

  	
   

  
	
   

  	
  Goodrich
  Aviation Technical Services, Inc.

  3100 112th Street SW, Hangar 3

  Everett, Washington 98204

  Attention:  VP/GM

  Fax:  425-423-3006

  



 


10

















 


	
   

  	
  with
  copy to:

  
	
   

  	
   

  
	
   

  	
  Goodrich
  Corporation

  Four Coliseum Centre

  2730 West Tyvola Road

  Charlotte, NC 28217-3022

  Attention:  Vice President, Legal

  Fax:  704.423.7127

  



 


or
to such other addresses as may be specified by either party hereto pursuant to
notice given by such party in accordance with the provisions of this Section
13.1.


 


13.2  Benefit of the Agreement.  This Agreement shall only bind the Goodrich
Aviation Technical Services Division, Inc. and the terms hereof shall not be
applicable to any other division or subsidiary of Goodrich Corporation.  This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
their permitted assigns.


 


13.4  Names, Advertising.  Each of the parties agrees that they will
not, without the prior written consent of the other, make any use whatsoever
of, or cause others to make or assist others in making any use whatsoever, of
the respective corporate or trade names of the other (including the corporate
or trade names of their respective subsidiaries and affiliates) or any portion
thereof, or any of their respective trademarks, or any portion thereof, in
connection with any advertising, promotion, publicity or for any other business
purpose that is not directly related to the performance of their respective
obligations hereunder.


 


13.5  Headings.  The headings used in this Agreement are for convenience only,
shall not be deemed to constitute a part hereof, and shall not be deemed to
limit, characterize or in any way affect the provisions of this Agreement.


 


13.6  Entire Agreement.  This Agreement contains the entire agreement
and understanding of the parties with respect to the subject matter hereof, and
no other representations, promises, agreements or understandings regarding the
subject matter hereof shall be of any force or effect unless in writing,
executed by the parties hereto subsequent to the date hereof.


 


13.7  Amendments.  This Agreement shall not be modified or amended except by written
instrument specifically referencing this Agreement which is signed by the
parties hereto.  The terms and
conditions of this Agreement shall not be altered or changed by, and ATS hereby
objects to, any different or additional terms contained in any other document
(other than an amendment as provided above), including, without limitation, any
invoices, purchase orders or acknowledgment forms submitted by Customer to ATS.


 


13.8  Waiver.  No waiver of any provision of this Agreement shall be valid or
binding unless it is in writing dated subsequent to the date hereof and signed
by the parties hereto.  No waiver of any
breach, term or condition of this Agreement by either party shall constitute a
subsequent waiver of the same or any other breach, term or condition.  No failure or delay of either party in
exercising any right under this Agreement shall operate as a waiver thereof,
nor shall any 


 


11

















 


partial exercise by either party of any right
under this Agreement preclude any other or further exercise thereof or the
exercise of any other right.


 


13.9  Assignment.  This Agreement may not be assigned by either
party in whole or in part (including for purposes of this Section 13.9 any
transfer by merger, reorganization, sale of a majority of the voting capital
stock, or other transfer by operation of law) without the prior written consent
of the other party.  Consent to such
assignment in one instance shall not constitute consent to any other assignment.  No assignment shall relieve the assignee
from its obligations under this Agreement. 
Any assignment or attempted assignment in violation of the terms of this
Section 13.9 shall be void. 
Notwithstanding the provisions of this Section 13.9, ATS may assign this
Agreement to Goodrich Corporation, or to any direct or indirect subsidiary or
other affiliate of ATS or Goodrich Corporation without the consent of Customer.


 


13.10  Separable Provisions.  If any provision of this Agreement shall be
held invalid or unenforceable, the remainder nevertheless shall remain in full
force and effect.  If any provision is
held invalid or unenforceable with respect to particular circumstances, it
nevertheless shall remain in full force and effect in all other circumstances.


 


13.11  Counterparts.  This Agreement may be executed
simultaneously in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.


 


13.13  Interpretation.  This Agreement shall be governed by and
construed in accordance with the laws of the State of Washington, without
reference to any conflict of laws principles. 
The language of this Agreement is and will be deemed to be the language
chosen by the parties jointly to express their mutual understanding.  No rule of construction based on which party
drafted the agreement or certain of its provisions will be applied against
either party.


 


13.14  Authorization.  Each of the parties hereby represents and
warrants to the other that the execution, delivery and performance of this
Agreement and the transactions contemplated hereby have been duly authorized by
all necessary corporate action, and this Agreement, when duly authorized,
executed and delivered by the other party, will be a valid and binding
obligation of each party, respectively.


 


13.15  Confidential Terms; Mandatory Disclosure.  Each party agrees that without the prior
written consent of the other, such party will not disclose or provide copies of
this Agreement or any Airframe Services Orders (or any portions thereof) to any
third party or entity, including any court or other governmental agency or
body.  In the event that either party
receives notification of a legal requirement to disclose, or becomes legally
compelled to disclose, a copy of or the terms of this Agreement or any Airframe
Services Orders or any proprietary information subject to the provisions of
Section 7 of this Agreement (collectively, the “Information”), whether by
deposition, interrogatory, request for documents by a court or any governmental
agency or body, subpoena, or other process or requirement, whether legal,
administrative or otherwise, such party will provide the other party with
prompt advance written notice (which shall not be less than ten business days
in advance of the time for any such mandatory disclosure) so that the other
party may seek a protective order, confidential treatment, waiver or other
appropriate protective relief with 


 


12

















 


respect to all or part of such request or requirement,
or waive compliance with the provisions of this Agreement with respect to all
or part of such request or requirement. 
In the event that such protective order, confidential treatment, waiver
or other remedy is not obtained prior to the deadline for complying with such
request or requirement, and upon advice of counsel a party reasonably believes
that it is legally compelled to disclose Information, then such party may
disclose only that portion of the Information which it is advised in writing by
counsel that it is legally compelled to disclose.  Each party will use its reasonable efforts to assist the other,
and in no event will oppose any action by the other party to obtain appropriate
confidential treatment or protective relief as contemplated by this Section
13.15.  Without limiting the generality
of the foregoing, Customer acknowledges that the public disclosure of the terms
of this Agreement is likely to cause substantial competitive harm to ATS.


 


IN WITNESS WHEREOF, the parties
hereto have executed this Agreement as of the date first above written.


 


 


	
  Goodrich Aviation Technical Services,
  Inc.

  	
   

  	
   

  	
  Hawaiian Airlines, Inc..

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Steve Bence

  	
   

  	
   

  	
  By:

  	
  /s/ H. Norman Davies

  	
   

  
	
   

  	
   

  	
   

  
	
  Name:
  Steve Bence

  	
   

  	
   Name:  H. Norman Davies

  
	
   

  	
   

  	
   

  	
   

  
	
  Title:
  Vice President - Programs

  	
   

  	
  Title:
  Executive Vice President - Operations

  
	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
  Date:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Christine R. Deister

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   Name:
  Christine R. Deister

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:
  Executive Vice President & Chief Financial Officer / Treasurer

  
	
   

  
	
   

  	
   

  	
  Date:

  	
   

  
									



 


13

















 


	
  LIST OF EXHIBITS AND SCHEDULES

  
	
   

  	
   

  	
   

  
	
  Exhibit
  1

  	
  DEFINITIONS

  
	
   

  	
   

  
	
  Exhibit
  2

  	
  RATES
  & CHARGES

  
	
   

  	
   

  
	
  Exhibit
  3

  	
  AIRFRAME
  SERVICES ORDERS

  
	
   

  	
   

  
	
  Exhibit
  3.5.6

  	
  WARRANTY

  
	
   

  	
   

  
	
  Exhibit
  10.1

  	
  CUSTOMER—REQUIRED
  INSURANCE COVERAGES AND LIMITS

  
	
   

  	
   

  
	
  Exhibit
  10.2

  	
  ATS—REQUIRED
  INSURANCE COVERAGES AND LIMITS

  



 


14

















 


Exhibit 1


 


DEFINITIONS


 


“Additional
Work” means any airframe maintenance services other than the Basic
Services.  Additional Work shall include
Buyer Request Items and Non-Routine Maintenance.


 


“Additional
Work Workscope” means the workscope identifying the services to be
performed by ATS as part of any Additional Work, determined pursuant to Section
3.5.2.  Upon agreement by ATS, Buyer
Request Items and Non-Routine Maintenance shall be considered part of the
Additional Work Workscope.


 


“Aircraft”
means Customer’s aircraft on which the Airframe Services are to be performed by
ATS, as further identified in the Workscope.


 


“Airframe
Services” means Basic Services and Additional Work.


 


“Base Maintenance”
means [REDACTED].


 


“Basic Services” means [REDACTED].


 


“Basic Services
Workscope” means the workscope
identifying the services to be performed by ATS as part of any Basic Services
as attached as Exhibit 3.5.2.


 


“Buyer Request Items”
shall mean changes or additions to engineering orders, specifications, or other
items of work requested in writing or orally by a Designated Maintenance
Representative, although not specifically required by the terms of the
Workscope.


 


“Designated
Maintenance Representative(s)” shall mean any one or more representatives
of Customer designated pursuant to Section 3.5.5 of this Agreement.


 


“Discrepancy”
shall mean a determination by ATS of the existence of any condition with
respect to an Aircraft, or the Airframe Services which varies from the
applicable requirements or standards set forth in the maintenance program, FAA
requirements, or the Technical Data, whether or not this condition could
eventually result in failure of the component or of the Aircraft.


 


“Expendables
and Consumables” means those parts and supplies which are used, consumed or
expended in connection with Airframe Services performed by ATS hereunder and
which have a unit acquisition cost to ATS per item less than the amount set
forth on Exhibit 2, but excluding any paint and any parts or items special
ordered by ATS for use on the Aircraft.


 


“FAA”
means the U.S. Federal Aviation Administration or any federal agency or
administrative body that assumes its functions or is the successor thereto.


 


15

















 


“FAR”
or “FARs” means any of those certain regulations promulgated by the FAA,
including, without limitation, those set forth in Title 14 of the Code of Federal
Regulations, as from time to time in effect.


 


“Force
Majeure” shall mean an event or condition contemplated by Section 11.


 


“Labor
Rate” shall have the meaning set forth in Section 3.2.


 


“Line
Maintenance” means minor maintenance, repair, and inspection activities,
and record keeping related thereto, on Aircraft at all remote stations that
Customer services, including, but not limited to, checking fluid levels,
interface with flight crew, visual airframe and systems inspections, and
replacement of minor components.


 


“Non-Routine
Maintenance” means identified corrective work discovered during the
performance of Routine Maintenance or Buyer Request Items or resulting from
findings by ATS of Discrepancies during the performance of Routine Maintenance
or Buyer Request Items.


 


“Routine Maintenance”
shall mean those items of inspection or work specifically called out in the
Workscope.


 


“Term” means the
term of this Agreement as provided in Section 12.


 


“Time
and Materials Basis” means: (i) with respect to labor, ATS will charge the
Labor Rate multiplied by the number of labor hours as is mutually agreed by ATS
and a Designated Maintenance Representative in connection with the identified
services or statement of work; and (ii) except as otherwise provided herein,
with respect to parts and materials and other direct charges, ATS will charge
the amount determined pursuant to Section 3.3.


 


“ATS
Airframe” means the facility of ATS located in Everett, Washington, which
performs the Airframe Services and presently operated by ATS.


 


“Workscope”  means the Basic Services Workscope and the
Additional Work Workscope.


 


16

















 


Exhibit 2


 


RATES
& CHARGES


 


Hawaiian
Airlines 767 Fleet Maintenance


 


[REDACTED].


 


17

















 


Exhibit 3A


 


AIRFRAME
SERVICES ORDER


 


Hawaiian
Airlines C1 Workscope– Revision 1

Aircraft 580


 


[REDACTED].


 


18

















 


Exhibit 3.5.6


 


AIRFRAME SERVICES WARRANTY


 


[REDACTED].


 


19

















 


Exhibit 10.1


 


Customer Insurance Coverages and Limits


 


[REDACTED]


 


20

















 


Exhibit 10.2


 


ATS Insurance Coverages and Limits


 


[REDACTED]


 


21