CODE-SHARE AGREEMENT
This AGREEMENT, dated as of this 6th day of January, 1997 and effective
as of March 15, 1997 (the "Effective Date"), is entered into by and between
Hawaiian Airlines, Inc., a corporation organized under the laws of the
Territory of Hawaii and existing under the laws of the State of Hawaii
("Hawaiian"), and Wings West Airlines, Inc., d/b/a American Eagle Airlines, a
California corporation ("Wings West").
WHEREAS Hawaiian and Wings West wish to enter into a Code-Share
Agreement whereby Wings West shall operate the scheduled services specified
as Code-Share Flights to connect with Hawaiian flights at Los Angeles
International Airport (LAX) and San Francisco International Airport (SFO).
1. AGREEMENT
In consideration of the mutual covenants and undertakings contained
herein, the parties hereto have agreed to operate Code-Share Flights on the
following terms and conditions.
2. DEFINITIONS
A Code-Share Flight is a flight operated by Wings West
which also carries the flight designator of "HA".
3. THE CODE-SHARE FLIGHTS
(a) The Code-Share Flights will be marketed and promoted by Hawaiian
under the flight designator of "HA" for the city-pair markets listed in
Annex A.
(b) Reservations of seats on the Code-Share Flights will be effected
and administered in accordance with the Code-Share Procedures, which will be
jointly-developed by the parties hereto within a reasonable time following
the execution of this Agreement.
4. GENERAL
(a) Wings West shall have the sole responsibility and control over, and
Hawaiian shall have no responsibility, control over or obligations or duties
with respect to, each and every aspect of Wings West's operations, including,
without limitation, scheduling, pricing, planning of flight itineraries and
routings, reservations control/yield management, dispatch and fueling, weight
and balance, flight release, maintenance, flight operations and compliance
with applicable rules and regulations. Flights operated by Wings West shall
be operated with its aircraft and crews.
(b) Hawaiian will ticket Code-Share passengers using available computer
reservation system ("CRS") inventory as specified in the Code-Share
Procedures.
(c) Wings West and Hawaiian will utilize their collective reasonable
efforts to create appropriate signage and identification at the airports
served by the Code-Share Flights and will agree on the text and delivery of
public announcements in airports and onboard the Code-Share Flights. The
costs of such marketing will be borne by the marketing carrier, Hawaiian.
(d) Wings West is a duly certificated air carrier under 14 C.F.R. Part
121; and all services performed by Wings West pursuant to this Agreement
shall be conducted and all of its personnel shall at all times meet and be in
material compliance with any and all applicable federal, state and local
laws, orders, rules and regulations of all governmental agencies having
jurisdiction over its operations, including but not limited to the Department
of Transportation (the "DOT") and the Federal Aviation Administration (the
"FAA").
(e) In circumstances where an overbooking of a Code-Share Flight makes
it necessary to deny boarding to some passengers, Wings West will deny
boarding to such Hawaiian Code-Share passengers only after the Wings West
passenger list has been exhausted, provided, that Hawaiian Code-Share
passengers present themselves to the Wings West check-in desks no later than
thirty minutes prior to the scheduled time of departure of the relevant
Code-Share Flight and that Hawaiian is not the cause of the flight being
overbooked.
5. VALUATION OF CODE-SHARE TICKETS
Portions of this document have been omitted pursuant to a confidential
treatment request filed with the Securities and Exchange Commission. Such
portions have been provided separately to the Commission.
6. PAYMENTS
Wings West shall invoice Hawaiian through the Airlines Clearing House
for the sums due in accordance with normal interline settlement processes.
With respect to tickets issued by third parties, should Wings West not have
an interline traffic agreement with the ticketing carrier, Wings West will
▇▇▇▇ such coupons to Hawaiian as exceptional items (i.e., via correspondence)
and not include that coupon in the normal monthly interline invoice to
Hawaiian. The value of coupons billed to Hawaiian as exceptional items under
this Section shall be equal to the value such coupons would have had if
issued by Hawaiian.
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Portions of this document have been omitted pursuant to a confidential
treatment request filed with the Securities and Exchange Commission. Such
portions have been provided separately to the Commission.
To support interline billing of Hawaiian tickets to third parties by
Wings West, Hawaiian agrees to waive endorsement requirements on all coupons
issued on its ticket stock naming Hawaiian in the "carrier" box used and
honored on Code-Share Flights. Hawaiian shall supply Wings West with written
confirmation in a form reasonably satisfactory to Wings West confirming its
blanket waiver of endorsement requirements for Code-Share passenger ticket
coupons issued for use on Code-Share Flights.
7. INVENTORY
The parties hereto will map inventory classes of the Code-Share Flights
to inventory classes of Wings West, as set forth in the Code-Share
Procedures. The parties will endeavor to map the average coupon value of
Hawaiian's inventory classes to comparable classes of Wings West to provide
nondiscriminatory access for bookings made by Hawaiian for passengers
yielding comparable revenue values, provided however that Wings West will
retain ultimate control over the management of seat inventory availability on
Code-Share Flights.
In consideration for Wings West agreeing to fare levels that are lower
than standard straight rate prorate methodology, it is understood that
Hawaiian will create a special inventory allocation just for Wings West
code-share passengers.
8. BAGGAGE/FLIGHT INTERRUPTION MANIFESTS
In respect of baggage of passengers traveling on Code-Share Flights and
in respect of involuntary rerouting and denied boarding of passengers, the
parties shall adhere to the procedures set forth in the Code-Share
Procedures. If the provisions of the Code-Share Procedures do not resolve the
issue, the handling and settlement of the claims shall be in accordance with
the Trade Practices Manual of the ATA or the IATA Resolutions and Recommended
Practices Manual, whichever applies. The use of the HA designator code for
Code-Share Flights does not extend to mail contract rates between each
carrier and the U.S. Postal Service.
9. PASSENGER FARES
Subject to the limitations of Section 12 of this Agreement, Hawaiian
will independently establish fares and rates for journeys that include the
Code-Share Flights. Hawaiian shall not establish or publish local fares
applicable to carriage on Code-Share Flights.
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10. TICKETS
All tickets, including tickets issued on Hawaiian ticket stock used and
honored on the Code-Share Flights shall be uplifted and retained by Wings
West, the Operating Carrier, which shall be responsible for normal processing
and billing of such documents. Hawaiian tickets issued for the Code-Share
Flights will be accepted by Wings West for carriage without the necessity for
endorsement.
11. FREE AND REDUCED RATE REVENUE TRANSPORTATION
All travel industry non-revenue (i.e., AD.., ID.., etc.) travel on
Code-Share Flights shall be administered by Wings West according to the terms
and conditions contained in any relevant agreements between Wings West (or
its affiliates) and other parties, including Hawaiian.
12. FREQUENT FLYERS TICKETS
The parties or their affiliates will execute a separate agreement, or an
amendment to an existing applicable agreement, to provide that American
AAdvantage-Registered Trademark- miles will be awarded for travel on
Code-Share Flights and to provide, further, that Hawaiian will pay Wings West
or one of its affiliates for miles awarded.
13. SALE OF CODE-SHARE FLIGHTS
Hawaiian will not sell carriage on the Code-Share Flights independently
of its own flights.
14. MARKETING THE CODE-SHARE FLIGHTS
The costs of signage and other marketing materials will be paid by
Hawaiian as the marketing carrier.
15. COMPUTER RESERVATIONS SYSTEM (CRS) CHARGES
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Portions of this document have been omitted pursuant to a confidential
treatment request filed with the Securities and Exchange Commission. Such
portions have been provided separately to the Commission.
16. PUBLICATION OF SCHEDULES
Hawaiian shall be responsible for advising the Code-Share Flights to ABC
World Airways Guide, ▇▇▇▇ Travel Group (RTG) and to Computer Reservations
Systems.
17. CONDITIONS OF CARRIAGE
The Code-Share Procedures will address reconciliation of Hawaiian and
Wings West Conditions of Carriage.
18. APPLICABLE OPERATING RULES
In the event this Agreement is silent with respect to which party's
rules or operating procedures are applicable to the execution of the
Code-Share Flights and processing of passengers thereon, and absent any other
agreement, law, rule or regulation, the rules and procedures of Wings West,
as the operating airline, shall apply to the extent consistent with the terms
of this Agreement.
19. COMPLIANCE WITH REGULATIONS
Nothing in this Agreement will require either Wings West or Hawaiian to
contravene any government law, rule or regulation. Wings West and Hawaiian
hereby confirm that, in relation to this Agreement, all relevant
transportation services and advertising or other forms of solicitation will
comply in full with applicable laws, rules and regulations.
20. TRADEMARKS AND CORPORATE IDENTIFICATION
(a) It is understood and agreed that the logos, trademarks, service
marks and tradenames of Wings West shall be and remain at all times the
exclusive property of Wings West, and that the logos, trademarks, service
marks and tradenames of Hawaiian shall be and remain at all times the
exclusive property of Hawaiian. Neither party shall use the logos,
trademarks, service marks and tradenames of the other party without the other
party's prior written consent.
(b) Each party agrees that, should any right, title or interest in or
to the other party's logos, trademarks, service marks or tradenames become
vested in it (by operation of law or otherwise) by reason of this Agreement,
it shall hold the same in trust for the other party and shall, at the request
of such party, forthwith unconditionally assign any such right, title or
interest to such party.
(c) (i) From time to time each party may provide to the other certain
art work, drawings, or technical information and advice for the purpose of
assisting such other party in the advertising and promotion of the Code-Share
Flights. All such
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drawings, technical information and advice will be treated
by the receiving party as confidential and proprietary information of the
providing party and the receiving party will use it only for those purposes
specifically authorized by the providing party in advance and in writing.
(ii) Each party agrees that all advertising and promotional
materials promoting the Code-Share Flights will meet first quality standards.
(iii) Each party shall, in all cases, be the sole judge in
determining the acceptability of both the quality and presentation of
advertising and promotional materials using its tradenames or trademarks.
(iv) Each party shall be responsible for providing agreed upon
promotional material to its own authorized agents and airport locations.
21. NON-EXCLUSIVITY
This Agreement is non-exclusive and does not preclude either party from
entering into or maintaining marketing relationships, including code-sharing,
with other airlines.
22. INDEMNIFICATION
(a) Wings West, as Operating Carrier, shall indemnify, defend and hold
harmless Hawaiian and its Affiliates and their respective directors,
officers, employees and agents (individually a "Marketing Carrier Indemnified
Party") from and against any and all claims, suits, penalties, liabilities,
judgments, fines, losses and expenses of any nature or kind ("Damages")
arising out of, caused by or occurring in connection with (or alleged to
arise out of, be caused by or be occurring in connection with):
(i) The death of or injury to persons, or delay or loss of or
damage to property (including aircraft, baggage or cargo) occurring while
such persons or property are under the control or in the custody of, or being
transported by, Wings West, except to the extent caused by the willful
misconduct of Hawaiian; and
(ii) Negligent acts or omissions of Wings West that are in any way
related to services contemplated by this Agreement;
(b) Hawaiian, as Marketing Carrier, shall indemnify, defend and hold
harmless Wings West and its Affiliates and their respective directors,
officers, employees and agents (individually an "Operating Carrier
Indemnified Party") from and against any and all Damages arising out of,
caused by or occurring in connection with (or alleged to arise out of, be
caused by or be occurring in connection with):
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(i) The death of or injury to persons, or delay or loss of or
damage to property (including aircraft, baggage or cargo) occurring while
such persons or property are under the control or in the custody of, or being
transported by, Wings West, to the extent caused by the willful misconduct of
Hawaiian;
(ii) Negligent acts or omissions of Hawaiian that are in any way
related to services contemplated by this Agreement unless and to the extent
the Damages arising therefrom are of the type, and occur under the
circumstances, referred to in Section 21(a)(i) (in which event the Wings West
shall indemnify Hawaiian and other Marketing Carrier Indemnified Parties
notwithstanding such negligent (but not willful) acts or omissions of
Hawaiian); and
(iii) Passenger claims based on Hawaiian's failure to properly
issue and complete transportation documentation in accordance with the
provisions of the standard Airlines Clearing House or IATA ticketing
procedures, including the failure to put a proper notice of the limits of
liability on such documentation.
The rights and obligations of the parties under this Section 21 shall
survive the termination of this Agreement.
23. INSURANCE
Wings West, as the Operating Carrier, shall procure and maintain
aircraft hull all risks and hull war and allied perils insurances for the
aircraft provided by Wings West, and shall cause its insurers to waive rights
of subrogation against Hawaiian, its officers, directors, agents, servants
and employees, except in respect of claims caused by the gross negligence or
willful misconduct of Hawaiian, its officers, directors, agents, servants and
employees. Wings West shall also procure and maintain comprehensive airline
liability insurance including but not limited to third party, passenger,
baggage, cargo and mail legal liability insurance for a minimum combined
single limit of Five Hundred Million United States Dollars ($500,000,000 USD)
each occurrence. Such legal liability insurance shall contain the following
provisions:
(i) To include Hawaiian, its officers, agents, servants and employees
as additional insureds except in respect of claims caused by the gross
negligence or willful misconduct of its officers, agents, servants and
employees (the "additional insureds");
(ii) To provide that all provisions thereof, except the limits of
liability, shall operate in the same manner as if there were a separate
policy issued to each insured;
(iii) To provide that this insurance shall be primary and without
rights of contribution from any other insurance carried by Hawaiian;
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(iv) To provide that the additional insureds shall have
no responsibility for premium;
(v) To provide that the cover afforded to each additional insured by
the policy shall not be invalidated by any act or omission (including
misrepresentation and non-disclosure) of any other person or party of the
policy provided that the additional insured so protected has not caused,
contributed to or knowingly condoned the said act or omission;
(vi) To give Hawaiian at least thirty (30) days prior written notice of
policy cancellation or material change except in the case of war and allied
perils where such period of notice shall be seven (7) days or such lessor
period as may be available in accordance with policy conditions; and
(vii) To provide that insurers accept and insure
the indemnification provision included in this Agreement.
Wings West shall provide Hawaiian with certificates of insurance
evidencing such coverage within five (5) business days of the date of this
Agreement and thereafter within five (5) days of the date of any subsequent
renewal of such coverage.
24. CLAIMS
The indemnified party shall give the indemnifying party prompt notice of
any claim made or suit instituted against the indemnified party which would
result in indemnification by the indemnifying party and the indemnifying
party shall have the right to compromise or participate in the defense of
same to the extent of its own interest.
25. JURISDICTION CLAUSE
The parties agree that this Agreement shall be governed by the laws of
the State of Texas without regard to any conflict of laws rule.
26. INDEPENDENT CONTRACTORS
The parties hereby confirm that they are independent contractors and
nothing herein is intended or shall be construed to create or establish a
partnership or joint venture.
27. FORCE MAJEURE
Neither Wings West nor Hawaiian shall be liable for any delays or
failure to operate caused by acts of God, Strikes, War, or acts of Government
or other causes beyond their control.
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28. WAIVER
Any waiver or invalidation of any part of this Agreement will not affect
the right of Wings West or Hawaiian to require strict compliance with any
other part of this Agreement.
29. TERM AND TERMINATION
This Agreement will become effective on the __ day of ______ 1997 and
will continue thereafter for twelve months providing that it may be
terminated by Wings West or Hawaiian with or without reason, upon not less
than ninety (90) days written notice to the address shown under NOTICES
below. At the expiration of the first twelve months, the Agreement shall
continue for further periods of twelve months unless earlier terminated by HA
as provided for in this Agreement.
30. TERMINATION FOR BREACH
In the event of any material breach of any of terms and conditions of
this Agreement, the non-breaching party may (at its option) serve a notice of
default on the breaching party requiring the remedy of the breach (as
specified in the notice) within thirty (30) days and in absence of such
remedy the Agreement shall be terminated immediately on the expiration
thereof.
31. OTHER TERMINATION
Either party may terminate this Agreement at any time if the other party
becomes insolvent, commits an act of bankruptcy or undergoes a major change
of ownership causing a conflict of interests.
32. POST TERMINATION RIGHTS
Termination of this Agreement by Wings West or Hawaiian will not absolve
either airline from the obligations accrued prior to that termination.
Obligations that are of a continuing nature will survive the termination of
this Agreement.
Notwithstanding the immediately preceding paragraph,
(a) In the event that this Agreement is terminated as provided herein
by Hawaiian pursuant to Section 29, or by Wings West pursuant to any other
Section, Hawaiian shall endorse all tickets to Wings West. Wings West shall
accept all confirmed reservations for passengers traveling on such tickets as
if such reservations had been booked through Wings West using ordinary
interline procedures but giving effect to the ticket pricing methodology
provided for in this Agreement; and
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(b) In the event that this Agreement is terminated as provided herein
by Wings West pursuant to Section 29, or by Hawaiian pursuant to any other
Section, Hawaiian, at its sole discretion, shall have the option to endorse
tickets to Wings West or any other carrier. Hawaiian shall also have the
option to transfer confirmed reservations for passengers traveling on such
tickets from Wings West to any other carrier.
33. NOTICES
All notices, reports, invoices and other communications required to be
given to any party hereto pursuant to this Agreement will be in writing and
either (a) delivered in person; (b) sent by an express courier delivery
service which provides signed acknowledgments of receipt; or (c) transmitted
by facsimile (upon receipt by sender thereof of evidence that a complete
transmission of such copy was made to the recipient thereof) and, if sent by
facsimile, confirmed by (i) telephone call contemporaneously made to the
individual designated as the one to receive such notice, or (ii) dispatching
a hard copy of such notice by air mail (postage prepaid) or either of the
methods set forth in (a) or (b) above. Unless otherwise expressly set forth
in this Agreement, all notices will be effective upon receipt. For the
purposes of notice, the addresses of the parties shall be as set forth below;
PROVIDED, HOWEVER, that either party will have the right to change its
address for notice to any other location by giving at least thirty (30) days
prior written notice to the other party in the manner set forth above.
If to Hawaiian: Hawaiian Airlines, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Senior Vice President, Sales & Marketing
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: Hawaiian Airlines, Inc.
General Counsel
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Wings West: Wings West Airlines, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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34. OTHER AGREEMENTS
The Bilateral Traffic Agreement between Hawaiian and American Airlines,
Inc., is hereby incorporated by reference. In the event of any conflict
between the terms and conditions of this Agreement and those of the Bilateral
Traffic Agreement, the terms and conditions of this Code-Share Agreement will
control.
35. COUNTERPARTS
This Agreement may be executed and delivered be the parties hereto in
separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date indicated above.
HAWAIIAN AIR LINES, INC. WINGS WEST AIRLINES, INC.
By: ________________________ By: __________________________
Its: ________________________ Its: __________________________
By: ________________________
Its: ________________________
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Annex A: List of city-pair markets:
1. LAX-BFL
2. LAX-CLD
3. LAX-FAT
4. LAX-LAS
5. LAX-MRY
6. LAX-PSP
7. LAX-SAN
8. LAX-SBA
9. LAX-SBP
10. LAX-SNA
11. SFO-MRY
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