Exhibit 10.4
Supplemental Agreement No. 9
to
Purchase Agreement No. 1951
between
The Boeing Company
and
Continental Airlines, Inc.
Relating to Boeing Model 737 Aircraft
THIS SUPPLEMENTAL AGREEMENT, entered into as of
February 18, 1999, by and between THE BOEING COMPANY, a Delaware
corporation with its principal office in Seattle, Washington,
(Boeing) and CONTINENTAL AIRLINES, INC., a Delaware corporation
with its principal office in Houston, Texas (Buyer);
WHEREAS, the parties hereto entered into Purchase Agreement
No. 1951 dated July 23, 1996 (the Agreement), as amended and
supplemented, relating to Boeing Model 737-500, 737-600, 737-700,
737-800, and 737-900 aircraft (the Aircraft); and
WHEREAS, Boeing and Buyer have agreed on a method for dealing
with delayed Aircraft to be delivered in 1999,and
WHEREAS, Boeing and Buyer have mutually agreed to amend the
Agreement to incorporate the effect of these and certain other
changes;
NOW THEREFORE, in consideration of the mutual covenants herein
contained, the parties agree to amend the Agreement as follows:
1. Table of Contents and Articles:
Remove and replace, in its entirety, the "Table of Contents",
with the Table of Contents attached hereto, to reflect the changes
made by this Supplemental Agreement No. 9.
2. Letter Agreements:
Add new Letter Agreement 6-1162-DMH-680, "Delivery Delay
Resolution Program", attached hereto, to reflect the agreement
between Buyer and Boeing regarding delayed aircraft to be delivered
in 1999.
The Agreement will be deemed to be supplemented to the extent
herein provided as of the date hereof and as so supplemented will
continue in full force and effect.
EXECUTED IN DUPLICATE as of the day and year first written above.
THE BOEING COMPANY CONTINENTAL AIRLINES, INC.
By: /s/ D. M. Hurt By: /s/ Brian Davis
Its: Attorney-In-Fact Its: Vice President
TABLE OF CONTENTS
Page SA
Number Number
ARTICLES
1. Subject Matter of Sale. . . . . . . . . . . 1-1 SA 5
2. Delivery, Title and Risk
of Loss . . . . . . . . . . . . . . . . . . 2-1
3. Price of Aircraft . . . . . . . . . . . . . 3-1 SA 5
4. Taxes . . . . . . . . . . . . . . . . . . . 4-1
5. Payment . . . . . . . . . . . . . . . . . . 5-1
6. Excusable Delay . . . . . . . . . . . . . . 6-1
7. Changes to the Detail Specification . . . . 7-1 SA 5
8. Federal Aviation Requirements and
Certificates and Export License . . . . . . 8-1 SA 5
9. Representatives, Inspection,
Flights and Test Data . . . . . . . . . . . 9-1
10. Assignment, Resale or Lease . . . . . . . . 10-1
11. Termination for Certain Events. . . . . . . 11-1
12. Product Assurance; Disclaimer and
Release; Exclusion of Liabilities;
Customer Support; Indemnification
and Insurance . . . . . . . . . . . . . . . 12-1
13. Buyer Furnished Equipment and
Spare Parts . . . . . . . . . . . . . . . . 13-1
14. Contractual Notices and Requests. . . . . . 14-1
15. Miscellaneous . . . . . . . . . . . . . . . 15-1
TABLE OF CONTENTS
Page SA
Number Number
TABLES
1. Aircraft Deliveries and
Descriptions - 737-500. . . . . . . . . . . T-1 SA 3
Aircraft Deliveries and
Descriptions - 737-700. . . . . . . . . . . T-2 SA 8
Aircraft Deliveries and
Descriptions - 737-800. . . . . . . . . . . T-3 SA 7
Aircraft Deliveries and
Descriptions - 737-600. . . . . . . . . . . T-4 SA 4
Aircraft Deliveries and
Descriptions - 737-900. . . . . . . . . . . T-5 SA 5
EXHIBITS
A-1 Aircraft Configuration - Model 737-724. . . SA 2
A-2 Aircraft Configuration - Model 737-824. . . SA 2
A-3 Aircraft Configuration - Model 737-624. . . SA 1
A-4 Aircraft Configuration - Model 737-524. . . SA 3
A-5 Aircraft Configuration - Model 737-924. . . SA 5
B Product Assurance Document. . . . . . . . . SA 1
C Customer Support Document - Code Two -
Major Model Differences . . . . . . . . . . SA 1
C1 Customer Support Document - Code Three -
Minor Model Differences . . . . . . . . . . SA 1
D Aircraft Price Adjustments - New
Generation Aircraft (1995 Base Price) . . . SA 1
D1 Airframe and Engine Price Adjustments -
Current Generation Aircraft . . . . . . . . SA 1
D2 Aircraft Price Adjustments - New
Generation Aircraft (1997 Base Price) . . . SA 5
E Buyer Furnished Equipment
Provisions Document . . . . . . . . . . . . SA 5
F Defined Terms Document. . . . . . . . . . . SA 5
TABLE OF CONTENTS
SA
Number
LETTER AGREEMENTS
1951-1 Not Used. . . . . . . . . . . . . . .
1951-2R3 Seller Purchased Equipment. . . . . . SA 5
1951-3R5 Option Aircraft-Model 737-824 Aircraft SA 8
1951-4R1 Waiver of Aircraft Demonstration. . . SA 1
1951-5R2 Promotional Support - New Generation. SA 5
Aircraft
1951-6 Configuration Matters . . . . . . . .
1951-7R1 Spares Initial Provisioning . . . . . SA 1
1951-8R2 Escalation Sharing - New Generation
Aircraft. . . . . . . . . . . . . . . SA 4
1951-9R3 Option Aircraft-Model 737-724 Aircraft SA 7
1951-11R1 Escalation Sharing-Current Generation
Aircraft. . . . . . . . . . . . . . . SA 4
1951-12 Option Aircraft - Model 737-924 Aircraft SA 5
1951-13 Configuration Matters - Model 737-924 SA 5
TABLE OF CONTENTS
SA
Number
RESTRICTED LETTER AGREEMENTS
6-1162-MMF-295 Performance Guarantees - Model
737-724 Aircraft. . . . . .
6-1162-MMF-296 Performance Guarantees - Model
737-824 Aircraft. . . . . .
6-1162-MMF-308R3 Disclosure of Confidential . SA 5
Information
6-1162-MMF-309R1 [CONFIDENTIAL MATERIAL OMITTED SA 1
AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
6-1162-MMF-311R3 [CONFIDENTIAL MATERIAL OMITTED SA 5
AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
6-1162-MMF-312R1 Special Purchase Agreement
Provisions. . . . . . . . . SA 1
6-1162-MMF-319 Special Provisions Relating to
the Rescheduled Aircraft. .
6-1162-MMF-378R1 Performance Guarantees - Model
737-524 Aircraft. . . . . . SA 3
6-1162-GOC-015 [CONFIDENTIAL MATERIAL OMITTED SA 2
AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
6-1162-GOC-131R2 Special Matters . . . . . . . SA 5
6-1162-DMH-365 Performance Guarantees - Model
737-924 Aircraft. . . . . . SA 5
6-1162-DMH-624 [CONFIDENTIAL MATERIAL OMITTED SA 8
AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
6-1162-DMH-680 Delivery Delay Resolution Program SA 9
TABLE OF CONTENTS
SUPPLEMENTAL AGREEMENTS DATED AS OF:
Supplemental Agreement No. 1 . . . . . . . . . . October 10,1996
Supplemental Agreement No. 2 . . . . . . . . . . March 5, 1997
Supplemental Agreement No. 3 . . . . . . . . . . July 17, 1997
Supplemental Agreement No. 4 . . . . . . . . . . October 10,1997
Supplemental Agreement No. 5 . . . . . . . . . . May 21,1998
Supplemental Agreement No. 6 . . . . . . . . . . July 30,1998
Supplemental Agreement No. 7 . . . . . . . . . . November 12,1998
Supplemental Agreement No. 8 . . . . . . . . . . December 7,1998
Supplemental Agreement No. 9 . . . . . . . . . . February 18,1999
February 18, 1999
6-1162-DMH-680
Continental Airlines, Inc.
1600 Smith Street
Houston, TX 77002
Subject: Delivery Delay Resolution Program
Reference: (a) Purchase Agreement No. 1951 between The Boeing
Company (Boeing) and Continental Airlines, Inc.
(Customer) relating to Model 737 aircraft
(b) Purchase Agreement No. 1783 between Boeing and
Customer relating to Model 757 aircraft
(c) Letter Agreement 6-1162-DMH-678 dated December
29, 1998, Subject: 1998 Delivery Delay Settlement
Ladies and Gentlemen:
This Letter Agreement amends and supplements the above reference
(a) and (b) Purchase Agreements (the Agreements). All terms used
but not defined in this Letter Agreement have the same meaning as
in the Agreements.
1. Revised Delivery of Aircraft.
Boeing has found it necessary to reschedule the delivery
month of certain Aircraft ( the Delayed Aircraft) as set forth
below:
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
Boeing shall deliver each Delayed Aircraft in accordance with the
terms of the Agreements during or before the Revised Schedule Month
specified above. The calendar interval between the original
schedule and revised schedule described above is the "Delay
Period."
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
2. Aircraft Purchase Price.
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
3. Advance Payments Adjustments for Aircraft.
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
4. Monetary Adjustment for Delivery Delay.
Boeing will pay to Customer on the date of delivery the
settlement amount calculated from the table provided in Attachment
A hereto for each day of delay, beginning with the first day of the
month following the Original Scheduled Month to and including the
day prior to the date for delivery of each such Delayed Aircraft.
The settlement amount, so calculated, will be provided to Customer
in the form of a credit memorandum, which amount may be used for
Boeing goods and services or may be applied against the purchase
price of the Delayed Aircraft.
5. Purchase Agreement Revision.
Except as specifically set forth in this Letter Agreement, the
rights and obligations of the parties under the terms and
conditions of the Agreements, including the provisions of Article
6, Excusable Delay, remain in full force and effect.
6. EXCLUSIVE REMEDY.
THE OBLIGATIONS OF BOEING EXPRESSLY SET FORTH IN THIS LETTER
AGREEMENT ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND CUSTOMER
HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER OBLIGATIONS AND
LIABILITIES OF BOEING AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF
CUSTOMER AGAINST BOEING, EXPRESS OR IMPLIED, ARISING BY LAW OR
OTHERWISE WITH RESPECT TO THE DELAY IN DELIVERY OF THE DELAYED
AIRCRAFT. BOEING'S PERFORMANCE OF ITS OBLIGATIONS HEREUNDER SHALL
CONSTITUTE FULL AND FINAL SETTLEMENT AND SATISFACTION OF ALL CLAIMS
OR CAUSES OF ACTION OF CUSTOMER AGAINST BOEING RELATING TO THE
DELAY IN DELIVERY OF THE DELAYED AIRCRAFT AND WILL BE REFLECTED IN
A REDUCED INVOICE AMOUNT OR A CREDIT MEMORANDUM.
7. Confidential Treatment. Customer understands that certain
commercial and financial information contained in this Letter
Agreement and the attachments hereto are considered by Boeing as
confidential. Customer agrees that it will treat this Letter
Agreement and the information contained herein as confidential and
will not, without the prior written consent of Boeing, disclose
this Letter Agreement or any information contained herein to any
other person or entity except to the extent required by law or
governmental regulation.
Very truly yours,
THE BOEING COMPANY
By /s/ D. M. Hurt
Its Attorney-In-Fact
ACCEPTED AND AGREED TO this
Date: February 18, 1999
CONTINENTAL AIRLINES, INC.
By /s/ Brian Davis
Its Vice President
Attachment A to
Letter Agreement No. 6-1162-DMH-680
COMPENSATION TABLE
The following table identifies the daily amount Boeing is required
to pay in settlement to compensation Customer for the delayed
delivery.
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]