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EXHIBIT 10.1
AIRBUS A380-800F PURCHASE AGREEMENT
Dated as of July 12, 2002
between
AVSA, S.A.R.L.,
THE SELLER
and
FEDERAL EXPRESS CORPORATION,
THE BUYER
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CONTENTS
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<Caption>
CLAUSES TITLE
------- -----
0 DEFINITIONS
1 SALE AND PURCHASE
2 SPECIFICATION
3 PRICE
4 PRICE REVISION
5 PAYMENT TERMS
6 INSPECTION AND THE BUYER'S LOCAL OFFICE
7 CERTIFICATION
8 THE BUYER'S ACCEPTANCE
9 DELIVERY
10 EXCUSABLE DELAY AND TOTAL LOSS
11 INEXCUSABLE DELAY
12 WARRANTIES AND SERVICE LIFE POLICY
</Table>
i
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CONTENTS
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<Caption>
CLAUSES TITLE
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13 PATENT AND COPYRIGHT INDEMNITY
14 [INTENTIONALLY DELETED]
15 [INTENTIONALLY DELETED]
16 TRAINING AND COMPUTER-BASED TRAINING AIDS
17 EQUIPMENT SUPPLIER PRODUCT SUPPORT
18 BUYER FURNISHED EQUIPMENT
19 INDEMNITIES AND INSURANCE
20 ASSIGNMENTS AND TRANSFERS
21 TERMINATION EVENTS
22 MISCELLANEOUS PROVISIONS
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ii
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CONTENTS
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EXHIBITS
- --------
EXHIBIT A A380-800F STANDARD SPECIFICATION
APPENDIX 1 SPECIFICATION CHANGE NOTICES (SCNs)
APPENDIX 2 CUSTOMIZATION MILESTONE CHART
EXHIBIT B SCN FORM
EXHIBIT C SELLER SERVICE LIFE POLICY
EXHIBIT D CERTIFICATE OF ACCEPTANCE
EXHIBIT E BILL OF SALE
EXHIBIT F [INTENTIONALLY DELETED]
EXHIBIT G AIRFRAME PRICE REVISION FORMULA
EXHIBIT H PROPULSION SYSTEMS PRICE REVISION FORMULAE
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iii
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CONTENTS
<Table>
<Caption>
LETTER
AGREEMENTS
NO.
- ----------
1 [ * ]
2 OPTION AIRCRAFT AND [ * ]
3 SPECIFICATION
4 PRODUCT SUPPORT AGREEMENT
5 [ * ]
6 [ * ]
7 [ * ]
8 CERTIFICATION AIRCRAFT
9 [ * ]
10 OPERATIONAL DISPATCH RELIABILITY GUARANTEE
11-A PERFORMANCE GUARANTEE WITH GP7277 PROPULSION
SYSTEMS
11-B PERFORMANCE GUARANTEE WITH TRENT 977 PROPULSION
SYSTEMS
12 [ * ]
13 NOISE GUARANTEE
14 EMISSIONS GUARANTEE
15 [ * ]
16 TAXES, DUTIES AND IMPOSTS
17 SPECIFIC GROUND SUPPORT EQUIPMENT
</Table>
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
iv
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<Table>
<Caption>
LETTER
AGREEMENTS
NO.
- ----------
18 [ * ]
19 MISCELLANEOUS
20 PROPULSION SYSTEM CHOICE
21 [ * ]
</Table>
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
v
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PURCHASE AGREEMENT
This agreement is made this 12th day of July 2002
between
AVSA, a SOCIETE A RESPONSABILITE LIMITEE 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
FEDERAL EXPRESS CORPORATION a corporation organized and existing under
the laws of the State of Delaware, United States of America, having
its principal corporate offices located at
3610 Hacks Cross Road
Memphis, TN 38125
(hereinafter referred to as the "Buyer")
WHEREAS, the Buyer wishes to purchase and the Seller is willing to sell
Airbus A380-800F model aircraft, on the terms and conditions herein
provided; and
WHEREAS, the Seller is a sales subsidiary of Airbus, G.I.E., and will
purchase the aircraft from Airbus, G.I.E., for resale to the Buyer,
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1
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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 A380-800F purchase agreement, including
all exhibits and appendixes attached hereto, as the same may be
amended or modified and in effect from time to time.
AIRCRAFT - any or all of the Firm Aircraft and any or all of the
Option Aircraft that have been converted to a firm order.
AIRFRAME - any Aircraft, including its Systems and Components,
but excluding the Propulsion Systems therefor.
ANACS - Airbus North America Customer Services, Inc., a
corporation organized and existing under the laws of Delaware,
having its registered office located at 198 Van Buren Street,
Suite 300, Herndon, VA 20170, or any successor thereto.
ASSOCIATED CONTRACTORS - collectively, the members and, for
certain purposes, subcontractors of the Manufacturer from time to
time, which members presently are:
(1) Airbus France S.A.S., whose principal office is at
316, route de Bayonne
31060 Toulouse
France
or any successor thereto
(2) Airbus UK Ltd , whose principal office is at
Warwick House
PO Box 87
Farnborough Aerospace Centre
Farnborough
Hants GU14 6YU
England
or any successor thereto
(3) Airbus Espana S.L., whose principal office is at
404 Avenida de Aragon
28022 Madrid
Spain
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or any successor thereto
(4) Airbus Deutschland GmbH , whose principal office is at
Kreetslag 10
Postfach 95 01 09
21111 Hamburg
Germany
or any successor thereto
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.
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.
BASE PRICE - for any Aircraft, Airframe or Propulsion Systems, as
more completely defined in Sub-clause 3.1 of this Agreement.
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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.
CERTIFICATE OF AIRWORTHINESS FOR EXPORT - an export certificate
of airworthiness issued by the Aviation Authority of the Delivery
Location.
CUSTOMER ORIGINATED CHANGES (COC) - Buyer-originated data that
are introduced into Technical Data, as more completely set forth
in Condition 4.1 of Letter Agreement No. 4 to this Agreement.
[ * ]
DELIVERY - the transfer of title to the Aircraft from the Seller
to the Buyer, in accordance with Clause 9.
DELIVERY CONDITIONS - the economic conditions prevailing at a
given month and year used to determine a price, cost or amount.
The economic factors used to determine such conditions are
described in the price revision formulae used in this Agreement.
DELIVERY DATE - the date on which Delivery will occur.
DELIVERY LOCATION - the facilities of the Seller at the location
of final assembly of the Aircraft, which is at Airbus France
S.A.S.'s works in Toulouse, France, for the A380-800F model
aircraft.
DEVELOPMENT CHANGES - as defined in Sub-clause 2.1.3 of this
Agreement.
DGAC - the Direction Generale de l'Aviation Civile of France, or
any successor thereto.
EXCUSABLE DELAY - delay in Delivery or failure to deliver an
Aircraft due to causes specified in Sub-clause 10.1 of this
Agreement.
FAA - the U.S. Federal Aviation Administration, or any successor
thereto.
FINAL CONTRACT PRICE - as defined in Sub-clause 3.2 of this
Agreement.
FIRM AIRCRAFT - any or all of the ten (10) firm A380-800F
Aircraft for which the Delivery Schedule is set forth in
Sub-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 in or on
such aircraft and the Propulsion Systems installed thereon upon
Delivery.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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FREE CARRIER (FCA) - defined in the January 2000 edition of
Publication No. 560, published by the International Chamber of
Commerce.
IN-HOUSE WARRANTY - as referred to in Sub-clause 12.1.7 of this
Agreement.
IN-HOUSE WARRANTY LABOR RATE - as defined in Sub-clause 12.1.7(v)
of this Agreement.
INITIAL PAYMENT - each of the amounts described in Sub-clause 5.3
of this Agreement.
INTERFACE PROBLEM - as defined in Sub-clause 12.4.1 of this
Agreement.
JAA - Joint Aviation Authorities 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, which 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 basis point (0.5 rounds to 1). 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, a "GROUPEMENT D'INTERET ECONOMIQUE"
established under "ORDONNANCE" No. 67-821 dated September 23,
1967, of the Republic of France.
OPTION AIRCRAFT - any or all of the ten (10) Aircraft on option
order for which the Delivery Schedule is set forth herein, 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
Sub-clause 5.2.3 or 5.2.4 of this Agreement.
PREDELIVERY PAYMENT REFERENCE PRICE - as defined in Sub-clause
5.2.2 of this Agreement.
PROPULSION SYSTEMS - either (i) the four (4) GE-P&W Engine
Alliance GP 7277 powerplants installed on an 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 GE-P&W Engine Alliance, or (ii) the four
(4) Rolls-Royce Trent 977 powerplants installed on an Aircraft at
Delivery, each composed of the powerplant (as such term is
defined in Chapters 70-80 of
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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 Rolls-Royce, as appropriate.
PROPULSION SYSTEMS PRICE REVISION FORMULA - either (i) the GE-P&W
Engine Alliance Propulsion Systems price revision formula set
forth in Exhibit H hereto, or (ii) the Rolls-Royce Propulsions
Systems price revision formula set forth in Exhibit H hereto, as
appropriate.
READY FOR DELIVERY - [ * ]
REFERENCE PRICE - as set forth in Sub-clause 3.1.3 of the
Agreement.
SCHEDULED DELIVERY MONTH - as defined in Sub-clause 9.1.1 of the
Agreement.
SELLER PRICE REVISION FORMULA - the Aircraft and Airframe price
revision formula set forth in Exhibit G hereto.
SERVICE LIFE POLICY - as referred to in Sub-clause 12.2 of this
Agreement.
SPECIFICATION - the Buyer's Customized Aircraft Specification.
SPECIFICATION CHANGE NOTICE (SCN) - an agreement in writing
between the Seller and the Buyer amending the Standard
Specification pursuant to Clause 2.
STANDARD SPECIFICATION - the A380-800F Standard Specification
Document Number L.000.0F000, Issue 3, published on January 30,
2002 annexed as Exhibit A hereto, which includes an MTOW of
[ * ], an MLW of [ * ], an MZFW of [ * ], and [ * ].
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
Seller 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).
TERMINATION EVENT - as defined in Sub-clause 21.1 of this
Agreement.
TRAINING CONFERENCE - as defined in Sub-clause 16.4.1 of this
Agreement.
WARRANTED PART - as defined in Sub-clause 12.1.1 of this
Agreement.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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WARRANTY CLAIM - as defined in Sub-clause 12.1.6(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 and will sell and
deliver, and the Buyer will buy and take Delivery of, the
Aircraft at the Delivery Location, subject to the terms and
conditions in this Agreement.
8
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2 SPECIFICATION
2.1 SPECIFICATION DOCUMENTS
2.1.1 The Aircraft will be manufactured in accordance with the Standard
Specification as may be amended by any Letter Agreement.
2.1.2 SPECIFICATION CHANGE NOTICE
The Standard Specification may be further amended by written
agreement between the parties in an SCN. Each SCN will be
substantially in the form set out in Exhibit B hereto and will
set out in detail the particular change to be made to the
Specification and the effect, if any, of such change on design,
performance, weight, time of Delivery of the Aircraft 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 DEVELOPMENT CHANGES
The Specification may also be amended by the Seller without the
Buyer's consent when changes to be incorporated in the
Specification are deemed necessary or useful to correct defects,
improve the Aircraft or its process of manufacture, prevent delay
or ensure compliance with this Agreement and which do not
increase the price, adversely affect the Delivery, overall
dimensions, customized configuration, guaranteed weight,
loadability, maintainability or performance of the Aircraft, or
adversely change the interchangeability or replaceability
requirements under the Specification or the Specification itself
(hereinafter called "Development Changes"). The Seller will
notify the Buyer of material Development Changes prior to
incorporation (if reasonably practicable). It is understood,
however, that the Buyer will have no right to prevent
incorporation of any Development Change by the Manufacturer. Such
Development Changes will be introduced into the Standard
Specification by means of revisions to the Standard
Specification. In any other case, the Seller shall submit to the
Buyer a Manufacturer Specification Change Notice ("MSCN") for the
Buyer's approval. Such individual MSCNs [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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2.1.4 REQUEST FOR CHANGE
In the event that the Buyer files an "RFC" (Request for Change)
with the Seller and the RFC [ * ] In the event that the Buyer
requests the Seller in writing to incorporate a proposed change
(excluding Development Changes) in an Aircraft and the Seller
agrees to such request [ * ]
2.2 CUSTOMIZATION MILESTONES CHART
The Seller has provided the Buyer with a Customization Milestone
Chart which is attached hereto as Appendix 2 to Exhibit A for,
information only, and may be revised from time to time. The
Customization Milestones Chart states the lead times before
Delivery needed for agreeing on items requested by the Buyer from
the Specification Changes Catalogs made available by the Seller.
2.3 PROPULSION SYSTEMS
The Airframe shall be equipped with one (1) set of Propulsion
Systems.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
10
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3 PRICE
3.1 BASE PRICE OF THE AIRCRAFT
3.1.1 The Base Price of each Aircraft is the sum of:
(i) the Base Price of the Airframe of the Aircraft, and
(ii) the Base Price of the Propulsion Systems for the
Aircraft as set forth in Sub-clause 3.1.3.1 or
Sub-clause 3.1.3.2, as appropriate.
3.1.2 BASE PRICE OF THE AIRFRAME
The Base Price of the Airframe of the Aircraft is the sum of the
Base Prices set forth below in (i) and (ii):
(i) the Base Price of the Standard Airframe as defined in
the Standard Specification (excluding Buyer Furnished
Equipment, Propulsion Systems and SCNs), which, at
Delivery Conditions prevailing in January 2000, is:
[ * ]
(ii) the Base Price of the SCNs covering options selected by
the Buyer and included in Appendix 1 to Exhibit A at
the date of execution of this Agreement, which, at
Delivery Conditions prevailing in January 2000, is:
[ * ]
3.1.3 BASE PRICE OF THE PROPULSION SYSTEMS
3.1.3.1 The Base Price of the GE-P&W Engine Alliance GP 7277 Propulsion
Systems, at Delivery Conditions prevailing in January 2000, is:
[ * ]
Said Base Price has been calculated from the reference price
indicated by GE-P&W Engine Alliance of [ * ] in accordance with
Delivery Conditions prevailing in January 2001 (the "EA Reference
Price").
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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3.1.3.2 The Base Price of the Rolls-Royce Trent 977 Propulsion Systems,
at Delivery Conditions prevailing in January 2000, is [ * ]
[ * ]
Said Base Price has been calculated from the reference
price indicated by Rolls Royce Trent 977 of [ * ] in
accordance with Delivery Conditions prevailing in
January 2000 (the "R-R Reference Price").
3.2 FINAL CONTRACT PRICE
The Final Contract Price of the Aircraft will be the sum of:
(i) the Base Price of the Airframe constituting a part of
such Aircraft, as adjusted to the Delivery Date of such
Aircraft in accordance with the Seller Price Revision
Formula;
(ii) the price of any SCNs for the Aircraft entered into
after the date of execution of this Agreement, as
adjusted to the Delivery Date in accordance with the
Seller Price Revision Formula;
(iii) the EA Reference Price of the installed Propulsion
Systems constituting a part of such Aircraft, as
adjusted to the Delivery Date in accordance with the
Propulsion Systems Price Revision Formula;
or
the R-R Reference Price of the of the installed
Propulsion Systems constituting a part of such
Aircraft, as adjusted to the Delivery Date in
accordance with the Propulsion Systems Price Revision
Formula, as applicable; 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
Aircraft.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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4 PRICE REVISION
4.1 SELLER PRICE REVISION FORMULA
The Base Price of the Airframe and SCNs are subject to revision
up to and including the Delivery Date of the applicable Aircraft,
in accordance with the Seller Price Revision Formula.
4.2 PROPULSION SYSTEMS PRICE REVISION
The Reference Price of the Propulsion Systems in Sub-clause
3.1.3.1 or 3.1.3.2 will be revised to the Delivery Date of the
Aircraft on which the Propulsion Systems are installed, in
accordance with the appropriate Propulsion Systems Price Revision
Formula.
4.3 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 the Delivery Date. If
the Propulsion Systems manufacturer makes any such amendment, the
amendment shall 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. In particular,
changes may reflect evolution in the Propulsion Systems
characteristics and/or finalization of an agreement thereupon
between the Seller and/or the Manufacturer and the Propulsion
Systems manufacturer. The Seller agrees to notify the Buyer as
soon as it 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, [ * ] 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.
5.2 PREDELIVERY PAYMENTS
5.2.1 Predelivery Payments are [ * ] and will be paid by the Buyer to
the Seller for each Aircraft. [ * ] Predelivery Payment Reference
Price of the Aircraft defined below in Sub-clause 5.2.2.
5.2.2 The Buyer will pay Predelivery Payments to the Seller calculated
on the Predelivery Payment Reference Price of each Aircraft. The
Predelivery Payment Reference Price is defined as:
A = Pb (1 + 0.04N)
where
A = the Predelivery Payment Reference Price for Aircraft to
be delivered in calendar year T.
Pb = the Base Price of the Aircraft as defined in Clause 3
above.
N = (T - 2000).
T = the year of Delivery of the relevant Aircraft.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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5.2.3 Predelivery Payments will be paid according to the following
schedule.
[ * ]
5.2.4 SCN PREDELIVERY PAYMENTS
The Seller will be entitled to request Predelivery Payments for
each SCN executed after signature of this Agreement.
(i) For each SCN executed before the first day of the [ * ]
month before the Scheduled Delivery Month, this
Predelivery Payment [ * ].
(ii) For each SCN executed after the first day of the [ * ]
month before the Scheduled Delivery Month, this
Predelivery Payment will amount to [ * ] of the SCN
price. These payments will be paid on the first day of
the month following signature of the SCN.
5.3 INITIAL PAYMENT
The Seller acknowledges that it has already received from the
Buyer the sum of [ * ], which represents an initial payment of
[ * ] for each Firm Aircraft and of [ * ] for each Option
Aircraft. The Initial Payment paid with respect to each
particular Aircraft will be credited [ * ] against the first
Predelivery Payment for such Aircraft.
5.4 PAYMENT OF THE BALANCE OF THE FINAL CONTRACT PRICE
Concurrently with the Delivery of each Aircraft, 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
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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Contract Price, including any amounts due under Sub-clause 5.6,
will be a condition precedent to the Seller's obligation to
deliver such Aircraft.
5.5 PAYMENT OF OTHER AMOUNTS
5.5.1 Unless otherwise expressly provided for herein, any payments due
hereunder or in respect of an Aircraft in addition to those
referred to in Sub-clauses 5.2 and 5.4 above will be paid by the
Buyer concurrently with the Delivery of the corresponding
Aircraft or, if the Seller elects to invoice such amounts after
Delivery of such Aircraft, within one (1) month after the invoice
date.
5.5.2 Notwithstanding any other rights the Seller may have at contract
or at law, the Buyer and the Seller hereby agree that should any
amount (whether under this Agreement or under any other agreement
between the Buyer and the Seller and whether at the stated
maturity of such amount, by acceleration or otherwise) become due
and payable by the Buyer or its Affiliates, and not be paid in
full in immediately available funds on the date due, then the
Seller will have the right to debit and apply, in whole or in
part, the unused amount of any credit made available by the
Seller to the Buyer against such unpaid amount. The Seller will
promptly notify the Buyer in writing after such debiting and
application.
5.6 OVERDUE PAYMENTS
5.6.1 If any payment due the Seller is not received by the Seller on
the date or dates agreed on between the Buyer and the Seller, the
Seller will have the right to claim from the Buyer and the Buyer
will promptly pay to the Seller, on receipt of such claim,
interest at the rate of one and one-half percent (1.5%) per month
on the amount of such overdue payment, to be calculated from and
including the due date of such payment to (but excluding) the
date such payment is received by the Seller. The Seller's right
to receive such interest will be in addition to any other rights
of the Seller hereunder or at law.
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 for such Aircraft, as provided in this Agreement.
5.8 PAYMENT IN FULL
Except as otherwise provided in this Agreement, the Buyer's
obligation to make payments to the Seller hereunder will not be
affected by and will be determined
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without regard to any setoff, counterclaim, recoupment, defense
or other right that the Buyer may have against the Seller or any
other person, and all such payments will be made without
deduction or withholding of any kind. The Buyer will ensure that
the sums received by the Seller under this Agreement will be
equal to the full amounts expressed to be due the Seller
hereunder, without deduction or withholding on account of and
free from any and all taxes, levies, imposts, duties or charges
of whatever nature, except that, if the Buyer is compelled by law
to make any such deduction or withholding, the Buyer will pay
such additional amounts as may be necessary so that the net
amount received by the Seller after such deduction or withholding
will equal the amounts that would have been received in the
absence of such deduction or withholding (unless such mandatory
withholding is a Tax which is the Seller's obligation under the
provisions of Letter Agreement No. 16 and the Buyer has given
reasonable prior notice to the Seller of its intention of making
such a withholding).
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6 INSPECTION AND THE BUYER'S LOCAL OFFICE
6.1 INSPECTION PROCEDURES
6.1.1 All work to be carried out on the Aircraft and all materials and
parts thereof will, at all reasonable times during business
hours, be open to inspection by duly authorized representatives
of the Buyer or its designee at the respective works of the
Associated Contractors and, if possible, at the works of their
respective subcontractors. These 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 to with the Buyer before any inspection. The Seller and
the Associated Contractors will create a website and will update,
on a weekly basis, the production schedule of each major
component of the Aircraft, lists of all production concessions
against the Aircraft and any other relevant technical data and
the timeframes for inspections, allowing the Buyer's
representatives adequate planning and travel time from Toulouse
to perform inspections which may be required by the Buyer.
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 said
representatives will be performed in such a manner as not to
delay or hinder 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 AND BUYER'S LOCAL OFFICE
6.2.1 For the purposes of Sub-clause 6.1 above, starting at a mutually
agreed date until Delivery of the last Aircraft, the Seller will
furnish free-of-charge adequate secretarial assistance and
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
during the aforementioned period (the "Buyer's Local Office").
[ * ] suitable office space to accommodate up to four (4) [ * ]
representatives of the Buyer, and conveniently located to the
Buyer's Local Office, will be provided during the Delivery phase
of each Aircraft [ * ]. The Seller will provide
telecommunications facilities for business calls [ * ]. All other
telephone charges may be invoiced [ * ].
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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6.2.2 The Seller will [ * ]
6.2.3 The Seller will [ * ]
6.2.4 [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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7 CERTIFICATION
Except as set forth in this Clause 7, the Seller will not be
required to obtain any other certificate or approval with respect
to the Aircraft.
7.1 TYPE CERTIFICATION
Prior to the Delivery of the first Aircraft, the Seller will
obtain or cause to be obtained a U.S. FAA Type Certificate
(transport category) for the Aircraft pursuant to Part 21 and in
compliance with the applicable provisions of Part 25 of the U.S.
Federal Aviation Regulations
7.2 CERTIFICATE OF AIRWORTHINESS FOR EXPORT
7.2.1 Subject to the provisions of Sub-clause 7.3, each Aircraft will
be delivered to the Buyer with the Certificate of Airworthiness
for Export issued by the DGAC [ * ]
7.2.2 At Delivery of the first Aircraft (or of the subsequent Aircraft,
if so required), the Seller will [ * ]
7.3 SPECIFICATION CHANGES BEFORE DELIVERY
7.3.1 If, pursuant to the promulgation of any applicable law or
regulation, any change in the Specification has to be made prior
to Delivery of any Aircraft in order to enable the Seller to
obtain the Certificate of Airworthiness for Export for such
Aircraft referred to in Sub-clause 7.2 [ * ] (a "Change in Law"),
the Seller will make the required change or modification to the
Aircraft. For each such change, the parties will sign an SCN
specifying the effect,
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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if any, of such change on design, performance, weight, balance,
time of Delivery, shear and running loads, if applicable, Buyer
Furnished Equipment, price of each Aircraft affected thereby and
interchangeability or replaceability of parts. If the Delivery of
any Aircraft is delayed by reason of such change, the Delivery
Date of such Aircraft as provided in Sub-clause 9.1 will be
extended to the extent of such delay.
7.3.2.1 The cost of implementing the modifications referred to in
Sub-clause 7.3.1 above will be [ * ]
7.3.3 The Seller shall, as far as practicable, take into account the
information available to it concerning any proposed Change in Law
in order to minimize the costs of changes which may appear
necessary to obtain the Certificate of Airworthiness for Export.
7.4 SPECIFICATION CHANGES AFTER DELIVERY
Sub-clause 7.3 will not require the Seller to make any changes or
modifications to any Aircraft or to make any payments or to take
any other action with respect to any Aircraft delivered to the
Buyer prior to the time any law or regulation referred to in
Sub-clause 7.3 becomes effective and is to be complied with. Any
such changes or modifications made to an Aircraft after its
Delivery to the Buyer will be at the expense of the Buyer. The
above provision [ * ] to Clause 12 of this Agreement.
7.5 [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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8 THE BUYER'S ACCEPTANCE
8.1 The Buyer and the Seller will mutually agree on an acceptance
procedure (the "Technical Acceptance Process"). The Seller, or
any affiliate thereof, acting as the Seller's designee will
[ * ]. The Buyer will send its representatives to the Delivery
Location and will cooperate in complying with the reasonable
requirements of the Seller with the intention of completing the
Technical Acceptance Process within [ * ] Working Days after
commencement. The Technical Acceptance Process will take place at
the Delivery Location (or at such other facilities of the
Associated Contractors or any affiliates thereof as the Seller
may specify) and will be carried out by the personnel of the
Manufacturer [ * ]. The successful completion of such Acceptance
Procedure will be deemed to demonstrate compliance with the
Specification.
If the Buyer is not present at the Delivery Location to attend
the Technical Acceptance Process on the date notified to the
Buyer, and if, pursuant to a five (5) Working Days' notice to
attend the Technical Acceptance Process sent by the Seller to the
Buyer, the Buyer is still not present at the Delivery Location,
then such failure to attend (except for reasons beyond Buyer's
control) or to cooperate will be deemed a Termination Event under
Sub-clause 21.1 of this Agreement. In addition to the remedies
given to the Seller under Sub-clause 21.1.2, the Buyer will
reimburse the Seller's cost of parking, storage and insurance of
the Aircraft until the earlier of (i) actual commencement of the
Technical Acceptance Process or (ii) termination of the
Agreement. Should it be established, from the Technical
Acceptance Process, that the Technical Acceptance Process for an
Aircraft was not successfully completed, or that there is a
defect, the Seller will, without hindrance from the Buyer, carry
out any necessary changes and, as soon as practicable thereafter,
resubmit the Aircraft for a new Technical Acceptance Process to
demonstrate the elimination of the hindrance to successful
completion of the Technical Acceptance Process or defect, such
Acceptance Procedure to be held and carried out in accordance
with Sub-clause 8.1, [ * ], including taxes, duties or imposts as
described in Letter Agreement No. 16 of even date herewith.
8.2 Upon successful completion of the Technical Acceptance Process,
the Buyer will, on or before the Delivery Date, sign and deliver
to the Seller a
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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certificate of acceptance in respect of the Aircraft in the form
of Exhibit D (the "Certificate of Acceptance") hereto.
8.3 The Seller will be entitled to use, without payment or other
liability, each Aircraft prior to its Delivery as may be
necessary to obtain the certificates required under Clause 7
hereof for the Buyer, and such use will not affect the Buyer's
obligation to accept Delivery of any Aircraft hereunder or be
deemed to constitute such Aircraft as other than "new" for any
purposes of this Agreement. [ * ]
Such use will not affect the Buyer's obligation to accept
Delivery of any Aircraft hereunder nor the Seller's obligation to
deliver such Aircraft in compliance with Sub-clause 8.1 of this
Agreement. [ * ]
8.4 Upon acceptance of Delivery of each Aircraft, the Buyer waives
any right, under the Uniform Commercial Code or otherwise, to
revoke such acceptance for any reason, whether known or unknown
to the Buyer at the time of acceptance.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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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
Aircraft Ready for Delivery at the Delivery Location within the
following months (each a "Scheduled Delivery Month").
<Table>
<Caption>
FIRM AIRCRAFT NO. MONTH/YEAR OF DELIVERY
----------------- ----------------------
1 [ * ]
2 [ * ]
3 [ * ]
4 [ * ]
5 [ * ]
6 [ * ]
7 [ * ]
8 [ * ]
9 [ * ]
10 [ * ]
<Caption>
OPTION AIRCRAFT NO. MONTH/YEAR OF DELIVERY
------------------- ----------------------
11 [ * ]
12 [ * ]
13 [ * ]
14 [ * ]
15 [ * ]
16 [ * ]
17 [ * ]
18 [ * ]
19 [ * ]
20 [ * ]
</Table>
9.1.2 The Seller will give the Buyer at least [ * ] days' written
notice of the anticipated date on which the Aircraft will be
Ready for Delivery. Not later than [ * ] days prior to such date
notified to the Buyer, the Seller will confirm to the Buyer that
such anticipated Delivery Date is firm. Thereafter the Seller
will notify the Buyer of any change in such date necessitated by
the conditions
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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of manufacture or flight and confirm a new date which will be no
more than [ * ] Working Days in France later nor [ * ] Working
Days in France earlier, than the originally scheduled date.
9.1.3 [ * ]
9.2 DELIVERY
9.2.1 The Buyer will send its representatives to the Delivery Location
to take Delivery within five (5) days after the date on which the
Aircraft is Ready for Delivery.
9.2.2 The Seller will transfer title to the Aircraft to the Buyer free
and clear of all encumbrances, provided that the Balance of the
Final Contract Price has been paid by the Buyer pursuant to
Sub-clause 5.4 and that the Certificate of Acceptance has been
signed and delivered to the Seller pursuant to Sub-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. Title to, property interest
in and risk of loss or damage to the Aircraft will be transferred
to the Buyer on Delivery.
9.2.3 Should the Buyer fail to
(i) deliver the signed Certificate of Acceptance upon the
successful completion of the Technical Acceptance
process described in Clause 8 hereof 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 more than five (5) days after
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. In the event the Buyer rejects the Aircraft as set
forth herein, then the Buyer will, on demand, reimburse the
Seller for all reasonable costs and expenses (including, without
limitation, costs and expenses attributable to storage,
preservation and protection, insurance, taxes) sustained by the
Seller and resulting from any such delay or failure. The rights
of the Seller under this Sub-clause 9.2.3 will not limit the
Seller's other rights and remedies under this Agreement.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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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 Aviation Authority of the Delivery
Location 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 nor the Manufacturer will be responsible for
or be deemed to be in default on account of delays in Delivery or
failure to deliver 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 except where such
failure is caused by the fault or negligence of the Seller, the
Manufacturer or an Associated Contractor; (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.
10.2.1.1 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;
(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.
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10.3 TERMINATION ON EXCUSABLE DELAY
10.3.1 If the Delivery of any Aircraft is delayed as a result of an
Excusable Delay for a period of more than [ * ] after the last
day of the Scheduled Delivery Month, then the Buyer may terminate
this Agreement with respect to the affected Aircraft, by giving
written notice to the Seller within thirty (30) days after the
expiration of such [ * ] period. In the event such delay
continues for an additional [ * ] after the expiration of such
[ * ] period, either party will have the option to terminate this
Agreement with respect to the Aircraft so affected upon notice to
the other within thirty (30) days after the end of such
additional [ * ] period. However, the Buyer will not be entitled
to terminate this Agreement pursuant to this Clause if the
Excusable Delay is caused primarily by the gross negligence or
willful misconduct of the Buyer. Termination in accordance with
this Sub-clause 10.3.1 will discharge all obligations and
liabilities of the parties hereunder with respect to such
affected Aircraft, [ * ]
10.3.2 In the event that the Seller notifies the Buyer of a revised
Scheduled Delivery Month pursuant to Sub-clause 10.2(iv), in
respect of a delay in Delivery of an Aircraft of more than [ * ]
after the last day of the Scheduled Delivery Month, then either
party may terminate this Agreement with respect to the affected
Aircraft. Termination will be made by giving written notice to
the other party within thirty (30) days after the Buyer's receipt
of the notice of a revised Scheduled Delivery Month.
10.3.3 If this Agreement is not terminated under the terms of Sub-clause
10.3.1 or 10.3.2 above, then the Seller will be entitled to
reschedule Delivery. The Seller will notify the Buyer of the new
Scheduled Delivery Month after the thirty (30)-day period
referred to in Sub-clause 10.3.1 or 10.3.2, and this new
Scheduled Delivery Month will be deemed to be an amendment to the
applicable Scheduled Delivery Month in Sub-clause 9.1.1 of the
Agreement.
10.4 TOTAL LOSS: LOST, DESTROYED OR DAMAGED AIRCRAFT
If, before Delivery thereof, in the reasonable opinion of the
Seller, an Aircraft is lost, destroyed or damaged beyond economic
repair ("Total Loss"), then the Seller will notify the Buyer to
this effect as soon as reasonably possible but in no event later
than thirty (30) days after such occurrence. The Seller will
include in its notice, or as soon after the notice as possible,
the earliest date that an aircraft to
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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replace the Aircraft may be delivered to the Buyer consistent
with the Seller's other commitments and production capabilities.
The notice will also state a revised Scheduled Delivery Month for
the replacement aircraft. Notwithstanding the foregoing, the
Buyer will have the right to terminate this Agreement with
respect to such Aircraft unless
(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.
Notwithstanding the above, nothing herein will require the Seller
to manufacture and deliver a replacement aircraft if such
manufacture would require the reactivation of the Manufacturer's
production line for the model or series of aircraft that includes
the Aircraft. [ * ]
10.5 TERMINATION RIGHTS EXCLUSIVE
In the event that this Agreement is terminated as provided for
under the terms of Sub-clause 10.3 or 10.4, such termination will
discharge all obligations and liabilities of the parties
hereunder with respect to such affected Aircraft (except for the
payment obligations as set forth therein) and undelivered
material, services, data or other items applicable thereto and to
be furnished hereunder and neither party will have any claim
against the other for any loss resulting from such nondelivery.
The Seller will in no circumstances have any liability whatsoever
for Excusable Delay other than as set forth in this Clause 10.
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
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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CONSEQUENTIAL DAMAGES OR SPECIFIC PERFORMANCE. THE BUYER WILL NOT
BE ENTITLED TO CLAIM THE REMEDIES AND RECEIVE THE BENEFITS
PROVIDED IN THIS CLAUSE 10 TO THE EXTENT THE DELAY REFERRED TO IN
THIS CLAUSE 10 IS CAUSED PRIMARILY BY THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF THE BUYER OR ITS REPRESENTATIVES.
10.7 [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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11 INEXCUSABLE DELAY
11.1 LIQUIDATED DAMAGES
Should an Aircraft not be Ready for Delivery to the Buyer within
thirty (30) days after the last day of the Scheduled Delivery
Month (as such month may be changed pursuant to Clauses 2, 7 or
10 or Sub-clause 21.1.2) and such delay is not as a 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 thirty-one (31) days after the last day of the
Scheduled Delivery Month.
The amount of liquidated damages will in no event exceed the
total of [ * ] in respect of any one (1) Aircraft.
11.2 RENEGOTIATION
If as a result of an Inexcusable Delay, Delivery does not occur
within six (6) months after the Delivery Period, the Buyer will
have the right, exercisable by written notice to the Seller and
given between fifteen (15) days and one (1) month after the six
(6) months, 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, the said renegotiation will not prejudice the
Buyer's right to receive liquidated damages in accordance with
Sub-clause 11.1 during the period of Inexcusable Delay.
11.3 TERMINATION
If as a result of an Inexcusable Delay, Delivery does not occur
within six (6) months after the Delivery Period and the parties
have not renegotiated the Delivery Date pursuant to Sub-clause
11.2, then the Buyer will have the further right exercisable by
written notice to the Seller and given between one (1) and two
(2) months after the six (6) months, to terminate this Agreement
in respect of the affected Aircraft. In the event of termination,
neither party will have any claim against the other, [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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11.4 [ * ]
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.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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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, 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 as hereinafter
provided, and except as provided in Sub-clause 12.1.2, the Seller
warrants to the Buyer that each Aircraft and each Warranted Part
will be, at the time of Aircraft Delivery, 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 Sub-clause 12.1.1 will not apply to
Buyer Furnished Equipment, nor to the Propulsion Systems, nor 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 Sub-clause 12.1 and
be covered by the warranty set forth in Sub-clause
12.1.1(ii), and
(ii) any defect inherent in the Seller's design of the
installation, in view of 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 Sub-clause 12.1 and be covered by the warranty set
forth in Sub-clause 12.1.1(iii).
12.1.3 WARRANTY PERIODS
The warranties described in Sub-clauses 12.1.1 and 12.1.2
hereinabove will be limited to those defects that become apparent
within [ * ] months 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 Sub-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. Alternatively, the Seller
may, at its option, 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.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
34
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12.1.4.2 In the event that the Seller corrects a defect covered by
Sub-clause 12.1.1(iii) that becomes apparent within the
applicable period set forth in Sub-clause 12.1.3 and the Seller
is obligated to correct such defect, the Seller will also, if so
requested by the Buyer in writing, make such correction in any
Aircraft that has not already been delivered to the Buyer.
However, the Seller will not be responsible nor deemed to be in
default on account of any 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.
12.1.4.3 In addition to the remedies set forth in Sub-clauses 12.1.4.1 and
12.1.4.2, the Seller will reimburse the direct labor costs spent
by the Buyer in performing the first of the following:
(i) inspections of the Aircraft to determine whether a
defect exists in any Warranted Part within the Warranty
Period; or
(ii) inspections of the Aircraft continued until the
corrective technical solution removing the need for the
inspection is provided by the Seller.
The above commitment is subject to the following conditions:
(i) such inspections are recommended by a Seller Service
Bulletin to be performed within the Warranty Period;
(ii) the inspection is performed outside of a scheduled
maintenance check as recommended by the Seller's
Maintenance Planning Document;
(iii) the Buyer will not be reimbursed for any inspections
performed as an alternative to accomplishing corrective
action when such corrective action is available to the
Buyer and such corrective action could have reasonably
been accomplished by the Buyer at the time such
inspections are performed,
(iv) the labor rate for the reimbursements will be the labor
rate defined in Sub-clause 12.1.7, and
(v) the hours used to determine such reimbursement shall
not exceed the Seller's estimate of the hours required
by the Buyer for such inspections.
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12.1.5 WARRANTY CLAIM REQUIREMENTS
The Buyer's remedy and the Seller's obligation and liability
under this Sub-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's submits to the Seller proof reasonably
satisfactory to the Seller that the claimed defect is
due to a matter covered under the provisions of this
Sub-clause 12.1, and that such defect has not resulted
from any act or omission of the Buyer, including, but
not limited to, any failure to operate and maintain the
affected Aircraft or part thereof in accordance with
the standards set forth in Sub-clause 12.1.10 or from
any act or omission of any third party;
(iii) the Buyer returns, as soon as practicable, the
Warranted Part claimed to be defective to the repair
facilities designated by the Seller, unless the Buyer
elects to repair a defective Warranted Part in
accordance with the provisions of Sub-clause 12.1.7;
and
(iv) the Seller's receives a "Warranty Claim" complying with
the provisions of Sub-clause 12.1.6 below.
12.1.6 WARRANTY ADMINISTRATION
The warranties set forth in Sub-clause 12.1 will be administered
as hereinafter provided:
(i) CLAIM DETERMINATION
Warranty Claim determination by the Seller will be
reasonably based on the claim details, reports from the
Seller's regional representative, historical data logs,
inspections, tests, findings during repair, defect
analysis and other suitable documents and information.
(ii) TRANSPORTATION COSTS
Transportation costs associated with the sending of a
defective Warranted Part claimed to be defective to the
facilities designated by the Seller will be borne by
the Buyer.
(iii) RETURN OF AN AIRCRAFT
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In the event that the Buyer desires to return an
Aircraft to the Seller for consideration of a Warranty
Claim, the Buyer will notify the Seller of its
intention to do so and the Seller will, prior to such
return, have the right to inspect such Aircraft and,
without prejudice to Seller's rights hereunder, to
repair such Aircraft either at the Buyer's facilities
or at another place 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
In the event that either (a) the Seller determines that
a defect subject to this Sub-clause 12.1 warrants the
dispatch by the Seller of a working team to the Buyer's
facilities to repair or correct such defect through
implementation of one (1) or more Seller's Service
Bulletins, or (b) the Seller accepts the return of an
Aircraft to perform or have performed a repair or
correction, then the labor costs for such on-Aircraft
work will be borne by the Seller at the labor rate
defined in Sub-clause 12.1.7.
All expenses related to such repair or correction,
including, but not limited to, travel and living
expenses, in excess of the labor costs as defined
above, incurred in performing such repair or
correction, will be borne by the Buyer.
On-Aircraft work by the Seller will be undertaken only
if, in the opinion of the Seller, the work requires the
technical expertise of the Seller as the Manufacturer
of the Aircraft. In such case, the Seller and the Buyer
will agree on a schedule and place for the work to be
performed.
(v) WARRANTY CLAIM SUBSTANTIATION
For each claim under this Sub-clause 12.1, the Buyer
will give written notice to the Seller that contains at
least the data listed below with respect to a part or
an Aircraft, as applicable ("Warranty Claim"). The
Buyer will make such Warranty Claim within sixty (60)
days of discovering the defect giving rise to such
Warranty Claim. Each Warranty Claim will include the
following:
(a) Description of the defect and action taken, if
any.
(b) Date of the incident and/or of removal.
(c) Description of the defective part.
(d) Part number.
(e) Serial number (if applicable).
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(f) Position on the Aircraft, according to Catalog
Sequence Number (CSN) of the Illustrated Parts
Catalog, Component Maintenance Manual or
Structural Repair Manual (as such documents are to
be defined pursuant to Condition 4 and Exhibit F
of Letter Agreement No. 4 to this Agreement), as
applicable.
(g) Total flying hours or calendar times, as
applicable, at the date of appearance of the
defect.
(h) Time since last shop visit at the date of defect
appearance.
(i) Manufacturer's 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 defect appearance.
(k) Claim number.
(l) Date of claim.
(m) Date of Delivery of the Aircraft or part to the
Buyer.
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 Sub-clause 12.1 will
be made within the lead time defined in the Seller's
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 possession of a
returned Aircraft, component, accessory, equipment or
part to which the Buyer has
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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 Sub-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 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 a rejected
claim, and (b) pay the costs of transportation to the
ANACS Center in Ashburn, VA, insurance and any other
costs associated with the sending or return of any
Warranted Part or any other item, equipment, component
or part for which the Seller rejects the Buyer's
warranty claim.
(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 Sub-clause
12.1.
12.1.7 IN-HOUSE WARRANTY
(i) AUTHORIZATION
The Buyer is hereby authorized to perform the repair of
Warranted Parts, subject to the terms of this
Sub-clause 12.1.7 ("In-house Warranty"). When the
estimated cost of an In-house Warranty repair exceeds
[ * ], the Buyer will notify the Seller's
representative 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 to ascertain the reasonableness of the estimate.
The Seller will use reasonable efforts to ensure a
prompt response and will not unreasonably withhold
authorization.
(ii) CONDITIONS OF AUTHORIZATION
The Buyer will be entitled to the benefits under this
Sub-clause 12.1.7 for repair of Warranted Parts:
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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(a) only if adequate facilities and qualified
personnel are available to the Buyer;
(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
Sub-clause 12.1.10.
(iii) THE SELLER'S RIGHTS
The Seller will have the right to have any Warranted
Part, or any part removed therefrom, which is claimed
to be defective, returned to the Seller, as set forth
in Sub-clause 12.1.6(ii), if, in the judgment of the
Seller, the nature of the defect requires technical
investigation.
The Seller will further have the right to have a
representative present during the disassembly,
inspection and testing of any Warranted Part claimed to
be defective, subject to its presence being practical
and not unduly delaying the repair.
(iv) IN-HOUSE WARRANTY CLAIM SUBSTANTIATION
Claims for In-house Warranty credit will be filed
within the time period set forth in, and will contain
the same information required in Warranty Claims under,
Sub-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
applicable),
- total price of parts;
(c) detailed number of labor hours;
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(d) In-house Warranty Labor Rate (defined below in
Sub-clause 12.1.7(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 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 hours
spent on disassembly, inspection, repair,
reassembly and final inspection and test
(including flight tests, if flight tests prove
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 as well as for removal and
installation of the Warranted Part, will not be
included.
(b) The hours counted as set forth above will be
multiplied by an agreed-to labor rate, the labor
rate representing 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 whose jobs are directly related
to the performance of the repair, of [ * ] at
economic conditions prevailing in January 2000
(the "In-house Warranty Labor Rate"). The In-house
Warranty Labor Rate is subject to adjustment
annually by multiplying it by the ratio HEn/HEb.
For the purposes of this Sub-clause 12.1.7(v)
only, HEn is equal to the Labor Index defined in
Exhibit G hereto for January of the year in which
the hours are spent and HEb is equal to such Labor
Index for January 2000.
(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 to the
extent that such costs exceed (a) [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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of the Seller's current catalog price for a replacement
of such defective Warranted Part, or (b) repair costs
(labor and material) 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 and when the
repair costs (labor and material) exceed [ * ], unless
the repair has been previously approved by the Seller
in accordance with Sub-clause 12.1.7(ii).
(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 one hundred twenty
(120) days after the date of completion of repair or
sixty (60) days after submission of a claim for
In-house Warranty credit relating thereto, whichever is
longer. Such parts will be returned to the Seller
within thirty (30) days 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 at least the duration of the warranty
periods set forth in this Sub-clause 12.1.
(viii) DISCLAIMER OF THE SELLER'S LIABILITY FOR THE BUYER'S
REPAIR
THE SELLER WILL NOT BE LIABLE FOR ANY RIGHT, CLAIM OR
REMEDY, AND THE BUYER WILL INDEMNIFY THE SELLER AGAINST
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 SUB-CLAUSE
12.1.7 OR ANY OTHER ACTIONS UNDERTAKEN BY THE BUYER
UNDER THIS SUB-CLAUSE 12.1.7, 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 SELLER.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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12.1.8 WARRANTY TRANSFERABILITY
The warranties provided for in this Sub-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.
12.1.9 WARRANTY FOR CORRECTED, REPLACEMENT OR REPAIRED WARRANTED PARTS
Whenever any Warranted Part that contains a defect for which the
Seller is liable under Sub-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 or repaired Warranted Part and, for a
replacement Warranted Part, 48 months (forty-eight) from Delivery
to the Buyer. In addition, the repair of a Warranted Part will be
warranted for twelve (12) months from Delivery to the Buyer of
the applicable repaired Warranted Part. In the event that a
defect is attributable to a defective repair or replacement by
the Buyer, a Warranty Claim with respect to such defect will not
be allowable, notwithstanding any subsequent correction or
repair, and will immediately terminate the remaining warranties
under this Sub-clause 12.1 in respect of the affected Warranted
Part.
12.1.10 GOOD AIRLINE OPERATION - NORMAL WEAR AND TEAR
The Buyer's rights under this Sub-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 good 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 Sub-clause 12.1 will not extend
to normal wear and tear or to:
(i) any Aircraft or component, equipment, accessory or part
thereof that has been repaired, altered or modified
after Delivery by any party 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 a damaged state; or
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(iii) any component, equipment, accessory or part from which
the trademark, trade name, part or serial number or
other identification marks have been removed.
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12.2 SELLER SERVICE LIFE POLICY
12.2.1 SCOPE AND DEFINITIONS
In addition to the warranties set forth in Sub-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 Sub-clause 12.2.4, the
provisions of this Sub-clause 12.2 will apply.
For the purposes of this Sub-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 which
are installed on an Aircraft at any time during the
period of effectiveness of the Service Life Policy as
defined below in Sub-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 or
fleetwide basis.
12.2.2 PERIODS AND THE SELLER'S UNDERTAKING
Subject to the general conditions and limitations set forth in
Sub-clause 12.2.4 below, the Seller agrees that if a Failure
occurs in an Item before the Aircraft in which such Item is
installed has completed [ * ] flying hours or [ * ] flight cycles
or within [ * ] years after the Delivery of the applicable
Aircraft to the Buyer, whichever occurs first, the Seller will,
at its own discretion, as promptly as practicable and for a price
that reflects the Seller's financial participation as hereinafter
provided, either:
12.2.2.1 design and furnish to the Buyer a correction for such Item
subject to a Failure and provide any parts required for such
correction (including Seller-designed standard parts, but
excluding industry standard parts); or
12.2.2.2 replace such Item.
12.2.3 THE 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 in connection with the
correction or replacement of an Item will be furnished to the
Buyer at the Seller's current sales price therefor, less the
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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Seller's financial participation, which will be determined in
accordance with the following formula:
C (N - T)
-----------
P = N
where
P = financial participation of the Seller,
C = the Seller's then-current sales price for the required
Item or required Seller designed parts,
and;
(i) T = total flying time in hours since Delivery of the
particular Aircraft in which the Item subject to a
Failure was originally installed,
and;
N = [ * ] flying hours,
Or;
(ii) T = total number of flight cycles since Delivery that
have been accumulated by the particular Aircraft
in which the Item subject to a Failure was
originally installed,
and;
N = [ * ] flight cycles,
Or;
(iii) T = total time in months since Delivery of the
particular Aircraft in which the Item subject to
a Failure was originally installed,
and;
N = [ * ] months.
whichever of the foregoing Sub-clauses (i), (ii) and (iii) yields
the lowest ratio of:
N - T
-----
N
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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12.2.4 GENERAL CONDITIONS AND LIMITATIONS
12.2.4.1 Notwithstanding Sub-clause 12.2.3, the undertakings given in this
Sub-clause 12.2 will not be valid during the Warranty Period
applicable to an Item under Sub-clause 12.1.3.
12.2.4.2 The Buyer's remedy and the Seller's obligation and liability
under this Service Life Policy are subject to compliance by the
Buyer with the following conditions precedent:
(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
covered by this Service Life Policy and, if so, to
define the portion of the cost to be borne by the
Seller in accordance with Sub-clause 12.2.3 above.
(ii) The Buyer will keep the Seller informed of any
significant incidents relating to an Aircraft,
howsoever occurring or recorded.
(iii) The conditions of Sub-clause 12.1.10 will have been
complied with.
(iv) The Buyer will carry out specific structural inspection
programs for monitoring purposes as may be established,
from time to time, by the Seller. Such programs will
be, to the extent possible, 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.
(v) In the case of any breakage or defect, the Buyer will
report the same in writing to the Seller within ninety
(90) days after any breakage or defect in an Item
becomes apparent, whether or not said breakage or
defect can reasonably be expected to occur in any other
Aircraft, and the Buyer will inform the Seller in
sufficient detail about the breakage or defect to
enable the Seller to determine whether said breakage or
defect is subject to this Service Life Policy.
12.2.4.3 Except as otherwise provided in this Sub-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,
Sub-clause 12.1.6.
12.2.4.4 In the event that the Seller has issued a modification applicable
to an Aircraft, the purpose of which is to avoid a Failure, the
Seller may elect to supply the necessary modification kit 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 Sub-clause 12.2 will be
subject to the Buyer's
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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
COMPONENTS TO CONFORM TO NEW DEVELOPMENTS OCCURRING IN THE STATE
OF AIRFRAME DESIGN AND MANUFACTURING ART. THE SELLER'S OBLIGATION
UNDER THIS SUB-CLAUSE 12.2 IS TO MAKE ONLY THOSE CORRECTIONS TO
THE ITEMS OR FURNISH REPLACEMENTS THEREFOR AS PROVIDED IN THIS
SUB-CLAUSE 12.2. THE BUYER'S SOLE REMEDY AND RELIEF FOR THE
NON-PERFORMANCE 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 NON-PERFORMANCE IS RELATED, LESS THE
AMOUNT THAT THE BUYER OTHERWISE WOULD HAVE BEEN REQUIRED TO PAY
UNDER THIS SUB-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
SUB-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.
12.2.5 TRANSFERABILITY
The Buyer's rights under this Sub-clause 12.2 will not be
assigned, sold, leased, transferred or otherwise alienated, by
operation of law or otherwise, without the Seller's prior written
consent.
Any unauthorized assignment, sale, lease, 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.
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12.3 SUPPLIER WARRANTIES
12.3.1 THE SELLER'S SUPPORT
Prior to 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 In the event that any Supplier under any standard warranty
obtained by the Seller pursuant to Sub-clause 12.3.1 hereof
defaults in the performance of any material obligation under such
warranty with respect to a Supplier Part, and the Buyer submits
within a reasonable time to the Seller reasonable proof that such
default has occurred, then Sub-clause 12.1 of this Agreement will
apply to the extent it would have applied had such Supplier Part
been a Warranted Part except that, for obligations covered under
Sub-clause 12.1, the shorter of (i) the Supplier's warranty
period indicated in the Supplier Product Support Agreements
manual, and (ii) the Seller's warranty period indicated in
Sub-clause 12.1.3 of this Agreement will apply.
12.3.2.2 In the event that any Supplier under any Supplier service life
policy obtained by the Seller pursuant to Sub-clause 12.3.1
hereof defaults in the performance of any material obligation
with respect thereto, and the Buyer submits within reasonable
time to the Seller reasonable proof that such default has
occurred, then Sub-clause 12.2 of this Agreement will apply to
the extent the same would have applied had such component,
equipment, accessory or part been listed in Exhibit C hereto.
12.3.2.3 At the Seller's request, the Buyer will assign to the Seller, and
the Seller will be subrogated to, all of the Buyer's rights
against the relevant Supplier, with respect to, and arising by
reason of, such default and the Buyer will provide reasonable
assistance to enable the Seller to enforce the rights so
assigned.
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
(1) 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 transportation of the
Seller's personnel to the Buyer's facilities, 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
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action as may be feasible, provided, however, that if the Seller
determines, after such due and reasonable investigation, that the
Interface Problem was 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 THE SELLER'S RESPONSIBILITY
If the Seller determines 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 Sub-clause 12.1.
12.4.3 THE SUPPLIER'S RESPONSIBILITY
If the Seller determines that the Interface Problem is primarily
attributable to the design of any Supplier Part, the Seller will,
if requested by the Buyer, 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 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
12.4.5.1 All requests under this Sub-clause 12.4 will be directed both to
the Seller and the affected Suppliers.
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12.4.5.2 Except as specifically set forth in this Sub-clause 12.4, this
Sub-clause 12.4 will not be deemed to impose on the Seller any
obligations not expressly set forth elsewhere in this Agreement.
All reports, recommendations, data and other documents furnished
by the Seller to the Buyer pursuant to this Sub-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 Sub-clause 22.5.
12.5 EXCLUSIVITY OF WARRANTIES
THIS CLAUSE 12 (INCLUDING ITS SUB-PROVISIONS) SETS FORTH THE
EXCLUSIVE WARRANTIES, EXCLUSIVE LIABILITIES AND EXCLUSIVE
OBLIGATIONS OF THE SELLER, AND THE EXCLUSIVE REMEDIES AVAILABLE
TO THE BUYER, WHETHER UNDER THIS AGREEMENT OR OTHERWISE, ARISING
FROM ANY DEFECT OR NON-CONFORMITY OR PROBLEM OF ANY KIND IN ANY
AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART OR SERVICE
DELIVERED UNDER THIS AGREEMENT.
THE BUYER RECOGNIZES THAT THE RIGHTS, WARRANTIES AND REMEDIES IN
THIS CLAUSE 12 ARE ADEQUATE AND SUFFICIENT TO PROTECT THE BUYER
FROM ANY DEFECT OR NON-CONFORMITY OR PROBLEM OF ANY KIND IN THE
GOODS AND SERVICES SUPPLIED UNDER THIS AGREEMENT. THE BUYER
HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES,
OBLIGATIONS, GUARANTEES AND LIABILITIES OF THE SELLER AND ALL
OTHER RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE
SELLER, WHETHER EXPRESS OR IMPLIED BY CONTRACT, TORT OR STATUTORY
LAW OR OTHERWISE, WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT OR
PROBLEM OF ANY KIND IN ANY AIRCRAFT, COMPONENT, EQUIPMENT,
ACCESSORY, PART OR SERVICE DELIVERED UNDER THIS AGREEMENT,
INCLUDING BUT NOT LIMITED TO:
(1) ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR
ANY GENERAL OR PARTICULAR PURPOSE;
(2) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(3) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
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(4) ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY THEORY OF
LIABILITY, HOWEVER ALLEGED, INCLUDING, BUT NOT LIMITED TO,
ACTIONS AND/OR CLAIMS FOR NEGLIGENCE, GROSS NEGLIGENCE,
INTENTIONAL ACTS, WILLFUL DISREGARD, IMPLIED WARRANTY,
PRODUCT LIABILITY, STRICT LIABILITY OR FAILURE TO WARN;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM
COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL STATUTE;
(6) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR
STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR
LOCAL STATUTE OR AGENCY; AND/OR
(7) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED FOR:
(a) LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT, COMPONENT,
EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THIS
AGREEMENT;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER
THIS AGREEMENT;
(c) LOSS OF PROFITS AND/OR REVENUES; AND/OR
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.
THE WARRANTIES AND SERVICE LIFE POLICY PROVIDED BY THIS
AGREEMENT WILL NOT BE EXTENDED, ALTERED OR VARIED, EXCEPT BY
A WRITTEN INSTRUMENT SIGNED BY THE SELLER AND THE BUYER. IN
THE EVENT THAT ANY PROVISION OF THIS CLAUSE 12 SHOULD FOR
ANY REASON BE HELD UNLAWFUL, OR OTHERWISE UNENFORCEABLE, THE
REMAINDER OF THIS CLAUSE 12 WILL REMAIN IN FULL FORCE AND
EFFECT.
12.6 DUPLICATE REMEDIES
The remedies provided to the Buyer under this Clause 12 as to any
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
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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 non-performance 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 non-performance covered by this Clause 12,
and the Buyer will not have any right to require specific
performance by the Seller.
UNQUOTE
In consideration of the assignment and subrogation by the Seller
under this Clause 12 in favor of the Buyer in respect of the
Seller's rights against and obligations to the Manufacturer under
the provisions quoted above, the Buyer hereby accepts such
assignment and subrogation and agrees to be bound by all of the
terms, conditions and limitations therein contained, specifically
including, without limitation, the Exclusivity of Warranties and
General Limitations of Liability provisions and Duplicate
Remedies provisions.
THIS CLAUSE 12 (INCLUDING ITS SUB-PROVISIONS) SETS FORTH THE
EXCLUSIVE WARRANTIES, EXCLUSIVE LIABILITIES AND EXCLUSIVE
OBLIGATIONS OF THE SELLER, AND THE EXCLUSIVE REMEDIES AVAILABLE
TO THE BUYER, WHETHER UNDER THIS AGREEMENT OR OTHERWISE, ARISING
FROM ANY DEFECT OR NON-CONFORMITY OR PROBLEM OF ANY KIND IN ANY
AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART OR SERVICE
DELIVERED UNDER THIS AGREEMENT.
THE BUYER RECOGNIZES THAT THE RIGHTS, WARRANTIES AND REMEDIES IN
THIS CLAUSE 12 ARE ADEQUATE AND SUFFICIENT TO PROTECT THE BUYER
FROM ANY DEFECT OR NON-CONFORMITY OR PROBLEM OF ANY KIND IN THE
GOODS AND SERVICES SUPPLIED UNDER THIS AGREEMENT. THE BUYER
HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES,
OBLIGATIONS, GUARANTEES AND LIABILITIES OF THE SELLER AND ALL
OTHER RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE
SELLER, WHETHER EXPRESS OR IMPLIED BY CONTRACT, TORT OR STATUTORY
LAW OR OTHERWISE, WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT OR
PROBLEM OF ANY KIND IN ANY AIRCRAFT, COMPONENT, EQUIPMENT,
ACCESSORY, PART OR SERVICE DELIVERED UNDER THIS AGREEMENT,
INCLUDING, BUT NOT LIMITED TO:
(1) ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR
ANY GENERAL OR PARTICULAR PURPOSE;
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(2) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(3) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(4) ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY THEORY OF
LIABILITY, HOWEVER ALLEGED, INCLUDING, BUT NOT LIMITED TO,
ACTIONS AND/OR CLAIMS FOR NEGLIGENCE, GROSS NEGLIGENCE,
INTENTIONAL ACTS, WILLFUL DISREGARD, IMPLIED WARRANTY,
PRODUCT LIABILITY, STRICT LIABILITY OR FAILURE TO WARN;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM
COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL STATUTE;
(6) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR
STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR
LOCAL STATUTE OR AGENCY; AND/OR
(7) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED FOR:
(a) LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT, COMPONENT,
EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THIS
AGREEMENT;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER
THIS AGREEMENT;
(c) LOSS OF PROFITS AND/OR REVENUES; AND/OR
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.
THE WARRANTIES AND SERVICE LIFE POLICY PROVIDED BY THIS AGREEMENT
WILL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN
INSTRUMENT SIGNED BY THE SELLER AND THE BUYER. IN THE EVENT THAT
ANY PROVISION OF THIS CLAUSE 12 SHOULD FOR ANY REASON BE HELD
UNLAWFUL, OR OTHERWISE UNENFORCEABLE, THE REMAINDER OF THIS
CLAUSE 12 WILL REMAIN IN FULL FORCE AND EFFECT.
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The remedies provided to the Buyer under this Clause 12 as to any
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 non-performance 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 non-performance covered by
this Clause 12, and the Buyer will not have any right to require
specific performance by the Seller.
12.7 NEGOTIATED AGREEMENT
The Buyer specifically recognizes that:
(i) the Specification has 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; and
(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 Sub-clause 12.5.
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13 [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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14 INTENTIONALLY DELETED
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15 INTENTIONALLY DELETED
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16 TRAINING AND COMPUTER-BASED TRAINING AIDS
16.1. GENERAL
This Clause covers the terms and conditions for the supply of
training and Computer-Based Training ("CBT") aids for the Buyer's
personnel to support the Aircraft operation.
16.2. SCOPE
16.2.1 The range and quantities of training and CBT aids to be provided
free of charge under this Agreement are covered in Appendix A to
this Clause 16. The Seller shall arrange availability of such
training and CBT aids to be delivered in accordance with the plan
developed and agreed to at the initial Training Conference to be
held no later than one hundred twenty (120) days after the
execution of this Agreement.
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 In the event that the Buyer should use none or only part of the
training to be provided pursuant to this Clause, the Seller shall
compensate the Buyer with training credits applicable to catalog
training courses available on other Airbus products for a period
of [ * ] after Delivery of the last Aircraft. In the event that
the Buyer does not take any courses during that period, the
Seller shall have no obligation to provide any additional
compensation.
16.2.4 In the event that the Buyer should use none or only part of the
CBT 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 shall provide training at the Buyer's training
facilities for Flight-Crew Training. In the event that the
Buyer's training facilities are not equipped with devices to
train for the Aircraft, or such devices are not available, the
Seller will provide the training at the Airbus Training Center in
Miami, Florida, and/or at its affiliated training centers in
Blagnac, France, or Beijing, China. For maintenance training, the
Seller shall provide training at the Buyer's hub facilities,
unless otherwise mutually agreed upon. In the event that the
Buyer's hub facilities are not available, training shall be
provided at the Airbus Training Center in Miami, Florida, and/or
at its affiliated training centers in Blagnac, France, or
Beijing, China. Should training at the Seller's facilities be
required, selection of the facility
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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location shall be mutually agreed. All additional charges listed
in Sub-clause 16.6.2 shall be borne by the Buyer.
16.3.2 In the event of the non-availability of facilities or scheduling
imperatives making training by the Seller impractical, the Seller
will make arrangements for the provision to the Buyer of such
training support elsewhere.
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, will be
defined during the training development and will be scheduled as
mutually agreed upon during the final training conference (the
"Training Conference") to be held at least [ * ] prior to
Delivery of the first Aircraft.
16.4.2 The following terms will apply when training is performed by the
Seller:
(i) Training course modules will be the Seller's standard
course modules as described in the Seller's applicable
Training Course Catalog. All training curricula and
course syllabi shall be in accordance with the
agreements made during the Planning Training
Conferences.
(ii) The training curricula and CBT may not be fully
customized. However, academic curricula shall be
modified to include the significant aspects of the
Specification (to the exclusion of Buyer Furnished
Equipment) as known at the latest six (6) months prior
to the date of the first training course planned for
the Buyer. Differences training shall be limited to no
more than eight (8) hours. The Seller shall provide a
differences training curricula and CBT package to the
Buyer, if necessary. [ * ]
(iii) Student training materials and documentation necessary
for training detailed in Appendix A to this Clause 16
will be free of charge and will not be revised once
provided to the student. Student training materials 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, Blagnac, France, or Beijing, China, as
applicable. This training data and documentation will
be delivered Free Carrier (FCA) Miami International
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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Airport. The Buyer will provide the Seller with COMAT
procedures or the Buyer's FEDEX AWB number. It is
understood that title to and risk of loss of the
training data and documentation will pass to the Buyer
upon delivery thereof.
16.4.3 In the event the Buyer decides to cancel or reschedule a training
course, a minimum advance notice of sixty (60) calendar days will
be required. Any later cancellation or change, if courses cannot
be allocated to other customers, will be deducted from the
training allowances defined herein or will be charged to the
Buyer, as applicable, [ * ].
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. Notwithstanding the
foregoing, the training courses shall be approved by the FAA and
shall meet certification requirements as required by the FAA
[ * ].
In the event that 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. Notwithstanding the foregoing, the
training courses shall be approved by the FAA and shall meet
certification requirements as required by the FAA for aircraft
type ratings or maintenance certificates as necessary to allow
the Buyer to meet regulatory obligations to operate and maintain
the Aircraft.
16.5 PREREQUISITES
16.5.1 Training will be conducted in English, and all CBT aids are
written in English using common aeronautical terminology.
Trainees must have the prerequisite experience as defined in
Appendix B to this Clause 16.
It is clearly understood that the Seller's training courses are
"Transition Training Courses" and not "Ab Initio Training
Courses."
Furthermore, 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.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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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 check 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 qualification 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 as
soon as it is apparent that the trainee(s) do not meet minimum
standards. In the event the Seller should determine that a
trainee lacks the required entry level qualification, such
trainee will, following consultation with the Buyer, be withdrawn
from the program and will then be considered to be at the Buyer's
disposal.
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 free-of-charge rental car for
all of the Buyer's trainees at the beginning of the training
course on the basis of one (1) rental car per four (4)
maintenance, operations and other trainees and one (1) rental car
per each flight crew. The Seller will provide rental cars with
unlimited mileage [ * ], and the Buyer will pay for fuel 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 Buyer's trainees occasioned 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, 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
In the event that 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, defined below in Sub-clauses 16.6.2.2, 16.6.2.3,
16.6.2.4 and 16.6.2.5
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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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
The Buyer will reimburse the Seller for the expenses related to
the assignment of the Seller's instructors and their performance
of the duties as aforesaid. Such expenses, covering the entire
period from day of secondment to day of return to the Seller's
base, will be reimbursed by the Buyer to the Seller at the daily
rate of (i) [ * ], not including air travel, in the event the
instruction is conducted in Memphis, Tennessee, in which case the
Buyer will provide reasonable assistance to the Seller in making
accommodation arrangements, or (ii) [ * ], not including air
travel, in the event the instruction is conducted outside of
Memphis, Tennessee. The above amounts are subject to reasonable
yearly escalation.
16.6.2.3 AIR TRAVEL
The Buyer will provide air transportation for the Seller's
instructors. Airline tickets will be confirmed and guaranteed in
business class for international travel and coach class for
domestic travel or, at the Buyer's choice, the Buyer will
reimburse the Seller for airline tickets purchased by the Seller.
16.6.2.4 INSTRUCTOR'S MATERIAL
The Buyer will reimburse the Seller for the cost of shipping the
instructor's 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 associated with the transportation services
described above and will indemnify and hold the Seller harmless
from such delay and any consequences arising therefrom.
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 terms specified
herein and any agreements reached during the Training
Conferences.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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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
(regular transition program or a cross-crew qualification program
as applicable) for the Buyer's flight crews, each of which will
consist of one (1) captain and one (1) first officer, as defined
in Appendix A to this Clause 16. The training manual used will be
the electronic Seller's Flight Crew Operating Manual. No later
than one (1) month before the start of the training course, the
Buyer will provide the Seller with an attendance list of
trainees, indicating the aircraft type last flown by each
trainee.
16.7.1.2 The Buyer will use its delivered Aircraft for any required
aircraft in-flight training. This training will not exceed [ * ]
per pilot. When aircraft in-flight crew training is performed at
a designated site of the Seller, the Seller will provide
free-of-charge line maintenance, including servicing, preflight
checks and changing of minor components, subject to conditions
agreed to in this Agreement.
16.7.1.3 The Buyer will provide mutually agreed spare parts as required to
support said Aircraft in-flight training and will provide
insurance in line with Sub-clause 16.12.
16.7.1.4 In all cases, the Buyer will bear all expenses such as fuel, oil
and landing fees.
16.7.2 The Seller will perform a flight instructor familiarization
course for the Buyer's flight instructors having already
performed a transition course as defined in Appendix A to this
Clause 16.
16.7.3 FLIGHT-CREW LINE INITIAL OPERATING EXPERIENCE
16.7.3.1 In order to assist the Buyer with initial operating experience
after Delivery of the first Aircraft, the Seller will provide to
the Buyer pilot instructor(s) as defined in Appendix A to this
Clause 16. The maximum guaranteed number of pilot instructors
present at one time will be limited to two (2) pilot instructors.
16.7.3.2 The Buyer will reimburse the expenses for each such instructor in
accordance with Sub-clause 16.6.2. Additional pilot instructors
can be provided at the Buyer's expense and upon conditions to be
mutually agreed upon.
16.7.3.3 Prior to any flight training to be performed by the Seller on the
Buyer's Aircraft, the Buyer will provide to the Seller a copy of
the certificate of insurance as requested in Clause 19.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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16.7.4 PERFORMANCE / OPERATIONS COURSE
The Seller will provide performance/operations training for the
Buyer's personnel as defined in Appendix A to this Clause 16.
The available courses are listed in the Seller's applicable
Training Course Catalog.
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. [ * ]
No later than one (1) month before the start of the training
course, the Buyer will provide the Seller with an attendance list
of trainees, indicating the aircraft type(s) on which each
trainee has been qualified.
16.8.2 LINE MAINTENANCE INITIAL OPERATING EXPERIENCE TRAINING
In order to assist the Buyer during the entry into service of the
Aircraft, the Seller will provide to the Buyer maintenance
instructor(s) at the Buyer's base as defined in Appendix A to
this Clause 16.
16.8.2.1 This line maintenance initial operating experience training will
cover training in handling and servicing of Aircraft, flight crew
and maintenance coordination, use of paper and/or electronic
documentation, CAATS, ADRES and/or any other activities which may
be deemed necessary after Delivery of the first Aircraft.
16.8.2.2 The Buyer will reimburse the expenses for said instructor(s) in
accordance with Sub-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 the major Suppliers and the
Propulsion Systems manufacturer will provide maintenance and
overhaul training on their products at appropriate times. [ * ]
16.10 CBT AIDS FOR THE BUYER'S TRAINING ORGANIZATION
16.10.1 The Seller will provide to the Buyer the Airbus Computer Based
Training ("Airbus CBT") and CBT aids, free of charge as defined
in Appendix A to this Clause 16.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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The training courses and CBT aids shall be developed in
accordance with the standards of the AICC and shall meet FAA
regulatory requirements. [ * ]
16.10.2 DELIVERY
16.10.2.1 The Seller will deliver to the Buyer the Airbus CBT and CBT 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 Sub-clause 16.10.1
above will be delivered FCA Toulouse, Blagnac Airport. Title to
and risk of loss of said items will pass to the Buyer upon
delivery.
16.10.2.3 All costs related to transportation and insurance of said items
from the FCA point to the Buyer's facilities will be at the
Buyer's expense.
16.10.3 INSTALLATION
16.10.3.1 Upon the Buyer's request, the Seller shall assist the Buyer with
the initial installation of the agreed upon Airbus CBT courseware
at the Buyer's facility following notification in writing that
the various components, which are in accordance with
specifications defined during the Preliminary Training Conference
or subsequent joint training conferences, are ready for
installation and available at the Buyer's facility.
16.10.3.2 The Buyer will provide any and all the necessary hardware on
which the agreed upon Airbus CBT will be installed, and Seller
will not be responsible for any incompatibility of such hardware
with the agreed upon Airbus CBT, provided that the hardware meets
the requirements agreed to in the Preliminary Training Conference
or subsequent joint training conferences.
16.10.3.3 The agreed upon Airbus CBT courseware will be installed by the
Buyer's personnel, and the Seller will be held harmless from any
damage to person and/or to property caused by or in any way
connected with, the handling and/or installation of the Airbus
CBT by the Buyer's personnel.
16.10.3.4 The Buyer will reimburse the expenses in accordance with
Sub-clause 16.6.2, for the Seller's personnel required at the
Buyer's facility to provide installation assistance.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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16.10.4 LICENSE
16.10.4.1 The Seller will grant the Buyer an Airbus CBT license as defined
in Appendix C to this Clause 16.
16.11 PROPRIETARY RIGHTS
Student training materials and documentation, Airbus CBT and CBT
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. The Seller will
not unreasonably withhold such consent if the Buyer or the
Buyer's subcontractor needs to use the above mentioned data for
development and further improvement of the Buyer's own training
needs.
16.12 INDEMNIFICATION AND INSURANCE
Indemnification provisions additional to those in Sub-clause
16.6.2.5 and insurance requirements are as set forth in Clause
19.
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APPENDIX A TO CLAUSE 16
TRAINING ALLOWANCE
1. FLIGHT-CREW TRANSITION TRAINING
1.1 FLIGHT-CREW TRAINING
The Seller will provide flight-crew transition training, free of
charge, for [ * ] of the Buyer's flight crews (for a total of
[ * ]) to enable the Buyer to dispense flight-crew transition
training up to CAT III.
1.2 FLIGHT INSTRUCTOR FAMILIARIZATION COURSE
The Seller will perform a flight instructor familiarization
course for up to [ * ] of the Buyer's flight instructors who have
already performed the transition course. The flight instructor
familiarization course will include instruction in simulator
operation.
1.3 FLIGHT-CREW LINE INITIAL OPERATING EXPERIENCE
The Seller will provide to the Buyer pilot instructor(s) free of
charge for a period of [ * ] to assist with flight-crew initial
operating experience.
The maximum guaranteed number of pilot instructors present at any
one time will be limited to [ * ] pilot instructors.
1.4 PERFORMANCE/OPERATIONS COURSE(S)
The Seller will provide to the Buyer [ * ] of
performance/operations training free of charge for the Buyer's
personnel.
The above trainee days will be used solely for the
performance/operations training courses as defined in the
Seller's applicable Training Course Catalog.
In addition, the Buyer will be allowed to send an engineer(s) to
any scheduled performance engineer class at the Seller's training
centers free of charge, classroom space permitting. The Buyer's
attendees will be responsible for their own travel expenses.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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APPENDIX A TO CLAUSE 16
2. MAINTENANCE TRAINING
2.1 MAINTENANCE TRAINING COURSES
The Seller will provide to the Buyer [ * ] of maintenance
training free of charge for the Buyer's personnel.
These trainee days will be used solely for the Maintenance
training courses as agreed to in the Preliminary Training
Conference or as defined in the Seller's applicable Training
Course Catalog. The number of Engine Run-up courses will be
limited to [ * ] courses for [ * ] trainees per Firm Aircraft.
The Buyer and the Seller shall agree on the best balance of
formal classroom training and on-the-job training to ensure a
smooth entry into service and continued operation of the
Aircraft.
2.2 LINE MAINTENANCE INITIAL OPERATING EXPERIENCE TRAINING
The Seller will provide to the Buyer maintenance instructor(s) at
any of the Buyer's hubs free of charge for up to a total period
of [ * ] weeks.
2.3 [ * ]
3. TRAINEE DAYS ACCOUNTING
Trainee days are counted as follows:
- For instruction at the Seller's training centers, one (1)
day of instruction for one (1) trainee equals one (1)
trainee day, and the number of trainees at the beginning of
the course will be counted as the number of trainees
considered to have taken the course.
- For instruction outside of the Seller's training centers,
one (1) day of secondment of one (1) Seller instructor
equals the actual number of trainees attending the course or
a minimum of [ * ] trainee days.
4. CBT AIDS AND CBT SYSTEM FOR THE BUYER'S TRAINING ORGANIZATION
4.1 The Seller will provide the Buyer with the following training
aids:
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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APPENDIX A TO CLAUSE 16
- [ * ] sets of cockpit color paper panel drawings (scale 1/1)
and one (1) reproducible CD ROM;
- As available, computer readable copies of all instructor and
student training materials in their existing format. The
Buyer shall have the right to amend/modify any of this
documentation as necessary to support its specific training
requirements; and
- [ * ] sets of cockpit color paper panel drawings (scale 1/2)
and one (1) reproducible CD ROM.
4.2 The Seller will provide to the Buyer one (1) Airbus CBT, defined
in Sub-clause 2.1.3 of Appendix C hereto, for workstations
related to the Aircraft.
The Airbus CBT supplied to the Buyer will consist of
- one (1) Airbus CBT installation/utilization guide
- one (1) set of CD-ROM with run-time software related to the
delivered courseware.
FOR FLIGHT OPERATIONS TRAINING
The A380 Family flight-crew Airbus CBT courseware will be
delivered with one (1) set of Airbus CBT courseware as developed
in accordance with Sub-clause 16.2.1 of this Agreement.
FOR MAINTENANCE TRAINING
The A380 Family maintenance Airbus CBT courseware will be
delivered with
- one (1) set of CD ROM with Airbus CBT courseware files;
- one (1) set of electronic training documentation master,
whenever applicable;
- one (1) set of menu listings; and
- [ * ] sets of DVD-ROM, whenever applicable.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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APPENDIX B TO CLAUSE 16
MINIMUM RECOMMENDED QUALIFICATION
IN RELATION TO TRAINING REQUIREMENTS
(Regular Transition Courses)
The prerequisites listed below are the minimum recommended requirements
specified for Airbus training. If the appropriate regulatory agency, or the
specific airline policy of the trainee, demands greater or additional
requirements, they will apply as prerequisites:
CAPTAIN PREREQUISITES
- Fluency in English,
- 1,500 hours minimum flying experience as pilot,
- 1,000 hours experience on FAR/JAR 25 aircraft,
- 200 hours experience as airline, corporate or military
pilot, and
- Must have flown transport-type aircraft, as flying pilot,
within the last twelve (12) months.
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, corporate or
military pilot, and
- Must have flown transport-type aircraft, as flying pilot,
within the last twelve (12) months.
For both CAPTAIN and FIRST OFFICER, if one (1) or several of the
above criteria are not met, the trainee must follow:
(i) an adapted course (example: if not fluent in English,
an adapted course with a translator), 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
- Fluency in English,
- Experience on first- or second-generation jet
transport-category aircraft,
- Qualification as line or line and base mechanic on one (1)
Airbus aircraft type (for Aircraft Rigging course), and
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- Qualification as line or line and base mechanic on the
relevant Airbus aircraft type (for Maintenance Initial
Operating Experience course).
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APPENDIX C TO CLAUSE 16
LICENSE FOR USE OF AIRBUS A380 AIRCRAFT COMPUTER BASED TRAINING
1. GRANT
Pursuant to the terms and conditions herein, the Seller hereby
grants the Buyer a non-exclusive, non-transferable, fully-paid
and royalty-free license to use the Airbus CBT System for the
duration of the term (defined in Clause 4 below) of this license
(the "License").
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 lessons designed to provide
flight-crew and maintenance training for the Aircraft.
2.1.2 "Airbus CBT Software" means the system software and all related
documentation 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.
2.2 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 is strictly
prohibited.
3.2 The Buyer agrees to 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.
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APPENDIX C TO CLAUSE 16
4. TERM
The rights under this License will be 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. When the Buyer
stops operating the A380F Aircraft model, the Buyer will use its
best reasonable efforts to return the Airbus CBT source code and
any copies thereof to the Seller, accompanied by a note
certifying that the Buyer has used its best reasonable efforts to
return all existing copies.
5. PERSONAL ON-SITE LICENSE
5.1 The above described License is personal to the Buyer for use of
the Airbus CBT System within the Buyer's premises only.
5.2 The Buyer may not (i) distribute or sub-license any portion of
the Airbus CBT System, (ii) modify or prepare derivative works
from the Airbus CBT System, (iii) publicly display visual output
of the Airbus CBT Software, or (iv) transmit the Airbus CBT
Software electronically unless otherwise permitted by the Seller
under conditions to be agreed upon. [ * ]
5.3 [ * ]
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 (1) or several
courses' syllabi in order to follow students'
progression,
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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APPENDIX C TO CLAUSE 16
(ii) rearranging course syllabi or creating new ones 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 performing training instructions for its personnel, or
for 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 or its 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.
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
conception. Should the Airbus CBT System be found to contain any
non-conformity or defect, the Buyer will notify the Seller
promptly thereof and the sole and exclusive liability of the
Seller under this Sub-clause 8.1 of the Airbus CBT License will
be to correct the same at its own expense.
8.2 WAIVER, RELEASE AND RENUNCIATION
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND
REMEDIES OF THE BUYER SET FORTH IN THIS LICENSE ARE EXCLUSIVE AND
IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES
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APPENDIX C TO CLAUSE 16
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 (OTHER THAN
COPYRIGHT OR PATENT INFRINGEMENTS) IN THE AIRBUS CBT SYSTEM
DELIVERED UNDER THIS LICENSE INCLUDING BUT NOT LIMITED TO:
(A) ANY WARRANTY AGAINST HIDDEN DEFECTS;
(B) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE,
COURSE OF DEALING OR USAGE OF TRADE;
(D) 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
(E) 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 OF THE
BUYER'S DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT
TO ANY NON-CONFORMITY OR DEFECT IN THE AIRBUS CBT SYSTEM
DELIVERED UNDER THIS LICENSE.
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17 EQUIPMENT SUPPLIER PRODUCT SUPPORT
17.1 EQUIPMENT SUPPLIER PRODUCT SUPPORT AGREEMENTS
17.1.1 The Seller has obtained Supplier Product Support Agreements
transferable to the Buyer from Suppliers of Seller Furnished
Equipment listed in the Specification.
17.1.2 These agreements are based on, or exceed, the requirements of the
"World Airlines and Suppliers Guide" and include Supplier
commitments contained in the Supplier Product Support Agreements,
which include the following:
(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 Condition 4 of Letter Agreement No. 4
to 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 Suppliers' items for the Buyer's
instructors and shop and line-service personnel.
(iv) Spares data in compliance with ATA Specification 200 or
2000, initial provisioning recommendations and spares
and logistics services, 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 Supplier Product Support Agreements,
and the Seller will take action together with the Buyer, if
necessary.
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17.3 SUPPLIER PART REPAIR STATIONS
17.3.1 The Manufacturer has developed with its Suppliers a comprehensive
network of repair stations in North America for those Supplier
Parts originating from outside this territory.
As a result, most Supplier Parts are repairable in North America,
and corresponding repair stations are listed in the AOG and
Repair Guide, which is issued and regularly updated by the
Manufacturer.
The Seller undertakes that the Supplier Parts that have to be
forwarded for repair outside North America 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 install
the 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 the 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 description 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, sixty (60) days in
advance of supplier lead time, with a schedule of dates and
shipping addresses for delivery of BFE and (when requested by the
Seller) additional spare BFE 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, 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 ("REGIME DE L'ENTREPOT
INDUSTRIEL POUR FABRICATION COORDONNEE" or "ZOLLVERSCHLUSS"),
without application of any French or German tax or customs duty,
and will be Delivered Duty Unpaid (DDU) (as defined in the April
1990 edition of Publication No. 460, published by the
International Chamber of Commerce) according to the Incoterms
definition, to
Airbus France S.A.S.,
316, route de Bayonne
31300 Toulouse
France
or
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Airbus Deutschland GmbH,
Division Hamburger Flugzeugbau
Kreetslag 10
21129 Hamburg
Federal Republic of Germany
as provided in Sub-clause 18.1.1.
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 a 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) meet the requirements of the
applicable Specification, (ii) comply with applicable
requirements incorporated by reference to the Type Certificate
and listed in the Type Certificate Data Sheet, and (iii) be
approved by the Aviation Authorities 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. At the Buyer's request, the Seller
will provide reasonable assistance to determine specific
requirements of the DGAC relating to BFE.
18.3 THE BUYER'S OBLIGATION AND THE SELLER'S 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 warranty in Sub-clause 18.2 or in
providing the descriptive information or service
representatives mentioned in Sub-clause 18.1.1, or
(iii) obtaining any required approval for such equipment
under the above mentioned 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.
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18.3.2 In addition to the consequences outlined in Sub-clause 18.3.1, in
the event of a delay or failure described in Sub-clause 18.3.1,
(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
for handling, 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 thirty (30) days
beyond, or unapproved within thirty (30) days of, the
BFE delivery date pursuant to Sub-clause 18.1.1, then
the Seller may Deliver, or the Buyer may elect to have
the Aircraft delivered, without the installation of
such equipment, notwithstanding the terms of Sub-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.
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19 INDEMNITIES AND INSURANCE
19.1 THE SELLER'S INDEMNITIES
The Seller will be solely liable for, and will indemnify and will
hold the Buyer, its directors, officers, agents or employees,
harmless against, all losses, liabilities, costs, expenses and
damages, including court costs and reasonable attorneys' fees
("Losses"), arising from,
(a) claims for injuries to, or deaths of, the Seller's,
Manufacturer's or any Associated Contractor's respective
directors, officers, agents or employees, or loss or damage
to property of the Seller, Manufacturer or any Associated
Contractor or their respective employees when such losses
occur during or are incidental to, (i) the Buyer's exercise
of its inspection rights under Clause 7, (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, occurring during, or
incidental to, (i) the Buyer's exercise of its inspection
rights pursuant to Clause 7, or (ii) the Technical
Acceptance Process described in Clause 8,
provided that such Losses do not result from the gross negligence
or willful misconduct of the Buyer, its directors, officers,
agents or employees.
19.2 THE BUYER'S INDEMNITIES
The Buyer will be solely liable for, and will indemnify and will
hold the Seller, the Manufacturer, each of the Associated
Contractors and their respective subcontractors, Affiliates of
the Seller, the Seller's representatives and the respective
assignees, directors, officers, agents and employees of each of
the foregoing, 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, when such losses occur during
or are incidental to, (i) the Buyer's exercise of its
inspection rights under Clause 7, (ii) the Technical
Acceptance Process described in Clause 8, (iii) the
provision of Field Assistance pursuant to Clause 15, (iv)
the provision of training pursuant to Clause 16, or (v) the
Buyer's use of the Seller Avionics Data and the Buyer's
development of or installation of the Alternative
Modification pursuant to Letter Agreement No. 9 to this
Agreement; and
(b) claims for injuries to or deaths of third parties, or loss
of property of third parties, where such losses arise out of
or in connection with (i) the
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provision of Field Services under Clause 15 or (ii) the
provision of training pursuant to Clause 16;
provided that such Losses do not result from the gross negligence
or willful misconduct of the Seller (including the Seller's
Representatives, who are referred to in Clause 15).
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. 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.
(b) In the event that 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 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
(a) [ * ] the Buyer will maintain adequate insurance to support
[ * ] undertakings under this Clause 19, and will bear any
deductible amounts set forth in the applicable policies. The
Buyer [ * ] will provide a certificate of insurance, upon
request, prepared by an insurance broker licensed and
skilled in the field of aviation insurance, in English. Such
certificate of insurance will name each party as an
additional insured under the other's applicable liability
policies and will provide that the insurance coverage will
not become ineffective, canceled or materially decreased or
changed except on thirty (30) days' prior notice to the
other.
(b) With respect to the Seller's and the Buyer's undertakings in
Sub-clauses 19.1 and 19.2, respectively, each party will,
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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(i) cause the other parties being indemnified to be named
as additional insureds under the other's liability
policies;
(ii) obtain and cause the insurers of its hull all-risks and
hull war-risk policies to waive all rights of
subrogation against the indemnified parties; and
(iii) not less than seven (7) Working Days before the
commencement of training to be provided under Clause
16, furnish to the Seller certificates of insurance, in
English, from a licensed insurance broker skilled in
the field of aviation insurance, certifying
(1) that the requirements of the foregoing Sub-clauses
19.4 (b)(i) and (ii) have been met;
(2) that the limits and insurance periods of each
applicable policy have been defined;
(3) that the applicable policies are primary and
non-contributory to any other insurance maintained
by the Seller;
(4) that the applicable policies contain a
cross-liability provision; and
(5) the insurance coverage will not become
ineffective, canceled or materially decreased or
changed except upon seven (7) Working Days' notice
to the Seller.
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20 ASSIGNMENTS AND TRANSFERS
20.1 ASSIGNMENTS BY THE BUYER
Except as hereinafter provided, neither the Buyer nor the Seller
may sell, assign or transfer its rights or obligations under this
Agreement to any person without the prior written consent of the
other. [ * ]
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,
reorganization, sale or transfer of all, or substantially all, of
its assets, provided that,
(i) the surviving or acquiring entity is organized and
existing under the laws of the United States;
(ii) the Buyer holds an Operating Certificate issued by the
FAA at the time, and immediately following the
consummation, of such merger, consolidation,
reorganization, sale or transfer; and
(iii) following the merger, consolidation, reorganization,
sale or transfer, the resulting entity is in a
financial condition at least equal to that of the Buyer
immediately before such merger, consolidation,
reorganization, sale or transfer.
20.3 ASSIGNMENTS BY THE SELLER
The Seller may at any time, by written notice to the Buyer,
designate particular facilities or particular personnel of the
Manufacturer, ANACS, any of the Associated Contractors or any
Affiliate of the Manufacturer or any Associated Contractor at
which, or by whom, the services to be performed under this
Agreement will be performed or may designate the Manufacturer,
any Associated Contractor or any Affiliate of the Manufacturer or
any Associated Contractor, which will be responsible on behalf of
the Seller for providing to the Buyer all or any of the services
described in this Agreement, provided that the Buyer's rights and
obligations under this Agreement will not be materially adversely
affected.
20.4 TRANSFER OF RIGHTS AND OBLIGATIONS UPON REORGANIZATION
If at any time until the date upon which all the obligations and
liabilities of the Seller under this Agreement have been
discharged, the legal structure, the
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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membership or the business of the Seller is reorganized or the
legal form of the Seller is changed and, as a consequence
thereof, the Seller wishes the Buyer to accept the substitution
of the Seller by another entity within the restructured Airbus
group (or the Seller in its new legal form) ("Newco"), as
contemplated below, the Seller will promptly notify the Buyer of
its wish.
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 Newco is in a
financial condition at least equal to that of the Seller
immediately before such reorganization and that the Buyer's
rights and obligations under this Agreement are not 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.
20.5 ASSIGNMENTS FOR FINANCING PURPOSES
At or following Delivery, the Buyer will be entitled to assign
its rights and obligations under Clauses 12, 13 and 17 hereof to
any provider of financing with respect to one (1) or more
Aircraft, to the extent that such Clauses apply to the Aircraft
that are being financed, as security for the Buyer's obligations
with respect to such financing, provided that such assignment
does not, in the Seller's reasonable judgment, adversely affect
the Seller's rights hereunder.
20.6 POST-DELIVERY SALE OR LEASE
The Seller agrees that, upon the post-Delivery sale or lease of
an Aircraft (including a sale or lease for financing purposes),
all of the Buyer's rights and obligations remaining at the time
of such sale or lease under Clauses 12, 13, and 17 of this
Agreement and this Sub-clause 20.6, with respect to the affected
Aircraft, will inure to the benefit of the transferee upon
delivery to the Seller of notice of such sale or lease and
written agreement by the transferee, in form and substance
satisfactory to the Seller, to be bound by the terms thereof.
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21 TERMINATION EVENTS
21.1 TERMINATION EVENTS
21.1.1 Each of the following will constitute a "Termination Event" under
this Agreement and immediately upon the occurrence of a
Termination Event, the Buyer will notify the Seller of such
occurrence in writing and by courier or telefax, provided,
however, that any failure by the Buyer to notify the Seller will
not prejudice the Seller's rights hereunder:
(1) The Buyer commences any case, proceeding or other action
relating to bankruptcy, insolvency, reorganization, relief
from debtors, winding-up, liquidation or dissolution, and
such case, proceeding or other action remains unstayed,
undismissed or undischarged for sixty (60) days.
(2) An action is commenced seeking the appointment of a
receiver, trustee, custodian or other similar official for
the Buyer for all, or substantially all, of its assets, and
such action remains unstayed, undismissed or undischarged
for sixty (60) days, or the Buyer makes a general assignment
for the benefit of its creditors.
(3) An action is commenced against the Buyer seeking issuance of
a warrant of attachment, execution, distraint or similar
process against all, or any substantial part of, its assets,
and such action remains unstayed, undismissed or
undischarged for sixty (60) days.
(4) Any event occurs with respect to the Buyer in any
jurisdiction to which it is subject which has an effect
equivalent to any of the events mentioned in Sub-clauses
21.1.1 (1), (2) or (3).
(5) The Buyer fails to make (i) any material payment (i.e., in
excess of [ * ]) required to be made pursuant to this
Agreement or any other agreement between the Buyer, or any
of its Affiliates, and the Seller, or any of its Affiliates,
after giving effect to the appropriate grace period or, in
the event no grace period is specified, after giving effect
to a grace period of five (5) days after receipt of the
Seller's written notice to that effect.
(6) The Buyer fails to make any Predelivery Payment required
under the terms of this Agreement within fifteen (15) days
of receipt of the Seller's written notice to that effect.
(7) The Buyer repudiates this Agreement.
(8) The Buyer [ * ] rejects Delivery of an Aircraft as provided
in Sub-clause 9.2 of this Agreement.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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21.1.2 In the event of any Termination Event, the Seller will, at its
sole option, have the right to resort to any remedy under
applicable law, including, without limitation, the right by
written notice to the Buyer, effective immediately, to
(i) terminate this Agreement or any other agreement between the
Buyer and the Seller with respect to any or all Aircraft,
equipment, services, data and other items undelivered or
unfurnished on the effective date of such termination, insofar as
any other such agreement relates to the Aircraft, provided,
however, that the Buyer's ability to operate delivered Aircraft
is not prevented; and (ii) retain, as part of the liquidated
damages for breach and not as a penalty, an amount equal to all
Predelivery Payments previously received by the Seller from the
Buyer under this Agreement.
The Seller will have the right to elect one (1) or more of the
foregoing remedies, and exercise of any one (1) or more of such
remedies will not be deemed a waiver of any other remedy or
remedies provided herein or under applicable law.
21.2 Notwithstanding the foregoing provisions, the parties agree that
in addition to the rights and remedies herein provided, the
Seller and the Buyer will have those rights and remedies of the
Uniform Commercial Code, including, but not limited to, the right
to suspend performance and/or terminate this Agreement in
circumstances contemplated by Articles 2-609 and 2-610 of the
Uniform Commercial Code.
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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 and availability and reducing the
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
Telefax: 33 05 61 30 40 11
The Buyer will be addressed at:
Federal Express Corporation
3610 Hacks Cross Road
Bldg. A, 2nd Floor
Memphis, TN 38125
USA
Attention: Vice President, Fleet Development and Acquisitions
Telephone: (901) 434-7913
Telefax: (901) 434-7873
With a copy to:
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Federal Express Corporation
Legal Department
3610 Hacks Cross Road
Bldg. B, 3rd Floor
Memphis, TN 38125
USA
Attention: Managing Director, Business Transactions Group
Telephone: (901) 434-8440
Telefax: (901) 434-7831
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, 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 THEREOF 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 non-exclusive jurisdiction of the courts of the
state of New York, New York County, of 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 Sub-clause 22.4 (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
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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.
22.5 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. 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 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 will give the Seller a reasonable period
of time in which to review said document. The Buyer and the
Seller will consult with each other and obtain the other's
written approval (not to be unreasonably withheld) prior to the
making of any public disclosure or filing, permitted hereunder,
of this Agreement or the terms and conditions thereof. The Buyer
will make the final determination of the necessity of compliance
by it with laws regarding public filings. The provisions of this
Sub-clause 22.7 will survive
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any termination of this Agreement. Notwithstanding the foregoing,
in order to support the Buyer's effort to obtain Predelivery
Payment financing, the Seller agrees to allow the Buyer to
disclose to financial institutions information necessary to
obtain such financing. The Buyer and the Seller will agree on the
extent of the information disclosed to such financial
institutions prior to such disclosure. The Buyer will obtain a
confidentiality undertaking from such financial institutions,
such undertaking to be reasonably satisfactory to the Seller.
22.8 SEVERABILITY
In the event that 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, Appendixes and Letter
Agreements, 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 Exhibit A hereto, (ii) any other Exhibit hereto, or
(iii) the Letter Agreements, in each such case the terms of such
Specification, other Exhibit or Letter Agreement will prevail
over the terms of this Agreement. For the purpose of this
Sub-clause 22.10, the term Agreement will not include the
Specification, any other Exhibit hereto or any Letter Agreement
hereto.
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.
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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. THE BUYER'S REPRESENTATIONS
The Buyer represents and warrants to the Seller that:
(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; and
(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 THE SELLER'S REPRESENTATIONS
The Seller represents and warrants to the Buyer that:
(i) the Seller is a SOCIETE A RESPONSABILITE LIMITEE
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 this 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; and
(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/ MARIE-PIERRE MERLE BERAL
----------------------------------------
Marie-Pierre Merle-Beral
Title: Chief Executive Officer
FEDERAL EXPRESS CORPORATION
By: /s/ JAMES R. PARKER
----------------------------------------
James R. Parker
Title: Vice President
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EXHIBITS
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EXHIBIT A
The A380-800F Standard Specification is contained in a separate folder.
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EXHIBIT A - APPENDIX 1
SPECIFICATION CHANGE NOTICES (SCNS)
[161 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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EXHIBIT A - APPENDIX 2
CUSTOMIZATION MILESTONE CHART
[2 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
102
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EXHIBIT B
[3 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
103
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EXHIBIT C
SELLER SERVICE LIFE POLICY
1. The Items of primary and auxiliary structure described hereunder
are covered by the Service Life Policy described in Sub-clause
12.2 of the Agreement.
2. WINGS - CENTER AND OUTER WING BOX
2.1 SPARS
2.2 RIBS INSIDE THE WING BOX
2.3 UPPER AND LOWER PANELS OF THE WING BOX
2.4 FITTINGS
2.4.1 Attachment fittings for the flap structure
2.4.2 Attachment fittings for the engine pylons
2.4.3 Attachment fittings for the main landing gear
2.4.4 Attachment fittings for the center wing box
2.5 AUXILIARY SUPPORT STRUCTURE
2.5.1 FOR THE SLATS:
2.5.1.1 Ribs supporting the track rollers on wing-box structure
2.5.1.2 Ribs supporting the actuators on wing-box structure
2.5.2 FOR THE AILERONS:
2.5.2.1 Hinge brackets and ribs on wing-box rear spar or shroud box
2.5.2.2 Actuator fittings on wing-box rear spar or shroud box
2.5.3 FOR AIRBRAKES, SPOILERS, LIFT DUMPERS:
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EXHIBIT C
2.5.3.1 Hinge brackets and ribs on wing-box rear spar or shroud box
2.5.3.2 Actuator fittings on wing-box rear spar or shroud box
3. FUSELAGE
3.1 FUSELAGE STRUCTURE
3.1.1 Fore and aft bulkheads
3.1.2 Pressurized floors and bulkheads surrounding the main- and
nose-gear wheel well and center wing box
3.1.3 Skins with doublers, stringers and frames from the forward
pressure bulkheads to the frame supporting the rear attachment of
the horizontal tail plane
3.1.4 Window and windscreen attachment structure, but excluding
transparencies
3.1.5 Passenger- and cargo-doors internal structure
3.1.6 Sills, excluding scuff plates and upper beams surrounding
passenger- and cargo-door apertures
3.1.7 Cockpit floor structure and passenger cabin floor beams,
excluding floor panels and seat rails
3.1.8 Keel beam structure
3.2 FITTINGS
3.2.1 Landing-gear attachment fittings
3.2.2 Support structure and attachment fittings for the vertical and
horizontal tail planes
4. TAIL PLANES
4.1 HORIZONTAL TAIL PLANE MAIN STRUCTURAL BOX
4.1.1 Spars
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EXHIBIT C
4.1.2 Ribs
4.1.3 Upper and lower skins and stringers
4.1.4 Attachment fittings to the fuselage and trim-screw actuator
4.1.5 Elevator support structure
4.1.5.1 Hinge bracket
4.1.5.2 Servocontrol attachment brackets
4.2 VERTICAL TAIL PLANE MAIN STRUCTURAL BOX
4.2.1 Spars
4.2.2 Ribs
4.2.3 Skins and stringers
4.2.4 Attachment fittings to the fuselage
4.2.5 Rudder support structure
4.2.5.1 Hinge brackets
4.2.5.2 Servocontrol attachment brackets
5. Bearing and roller assemblies, bearing surfaces, bushings, bolts,
rivets, 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.
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EXHIBIT D (GE-P&W EA)
CERTIFICATE OF ACCEPTANCE
In accordance with the terms of that certain Airbus A380-800F Purchase Agreement
dated as of July 12, 2002, between Federal Express Corporation ("FedEx") and
AVSA, S.A.R.L. ("AVSA") (the "Purchase Agreement"), the acceptance tests
relating to the Airbus A380-800F aircraft, Manufacturer's Serial Number: _____,
U.S. Registration Number: ______ with four (4) GE-P&W Engine Alliance GP 7277
series propulsion systems installed thereon, Serial Numbers ______ (Position
#1), _______ (Position #2), _______ (Position #3) and _______ (Position #4) (the
"A380-800F Aircraft"), have taken place at _______________ on the ____ day of
_____________, ____.
In view of said tests having been carried out with satisfactory results, FedEx
hereby approves the A380-800F Aircraft as being in conformity with the
provisions of the Purchase Agreement.
Said acceptance does not impair the rights of FedEx that may be derived from the
warranties and guarantees relating to the A380-800F Aircraft set forth in the
Purchase Agreement.
FedEx specifically recognizes that it has waived any right it may have, at law
or otherwise, to revoke this acceptance of the A380-800F Aircraft.
RECEIPT AND ACCEPTANCE OF THE ABOVE-DESCRIBED
A380-800F AIRCRAFT ACKNOWLEDGED
FEDERAL EXPRESS CORPORATION
By:
-----------------------------
Its:
----------------------------
Exh. D-107
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EXHIBIT D (GE-P&W EA)
CERTIFICATE OF ACCEPTANCE
In accordance with the terms of that certain Airbus A380-800F Purchase Agreement
dated as of July 12, 2002, between Federal Express Corporation ("FedEx") and
AVSA, S.A.R.L. ("AVSA") (the "Purchase Agreement"), the acceptance tests
relating to the Airbus A380-800F aircraft, Manufacturer's Serial Number: _____,
U.S. Registration Number: ______ with four (4) Rolls-Royce Trent 977 series
propulsion systems installed thereon, Serial Numbers ______ (Position #1),
_______ (Position #2), _______ (Position #3) and _______ (Position #4) (the
"A380-800F Aircraft"), have taken place at _______________ on the ____ day of
_____________, ____.
In view of said tests having been carried out with satisfactory results, FedEx
hereby approves the A380-800F Aircraft as being in conformity with the
provisions of the Purchase Agreement.
Said acceptance does not impair the rights of FedEx that may be derived from the
warranties and guarantees relating to the A380-800F Aircraft set forth in the
Purchase Agreement.
FedEx specifically recognizes that it has waived any right it may have, at law
or otherwise, to revoke this acceptance of the A380-800F Aircraft.
RECEIPT AND ACCEPTANCE OF THE ABOVE-DESCRIBED
A380-800F AIRCRAFT ACKNOWLEDGED
FEDERAL EXPRESS CORPORATION
By:
-----------------------------
Its:
----------------------------
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EXHIBIT E (GE-P&W EA)
BILL OF SALE
Know all persons by these presents that AVSA, S.A.R.L. ("AVSA"), a SOCIETE A
RESPONSABILITE LIMITEE 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") 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 INDUSTRIE G.I.E. GE-P&W ENGINE ALLIANCE
MODEL: A380-800F MODEL: GP 7277
MANUFACTURER'S SERIAL NUMBERS:
SERIAL NUMBER: ______ Position #1: ________
Position #2: ________
REGISTRATION NO: ______ Position #3: ________
Position #4: ________
The Airframe, Engines and Parts are hereafter together referred to as the
aircraft (the "A380-800F AIRCRAFT").
AVSA does this ___ day of ____________, _____ sell, transfer and deliver all of
its above described rights, title and interest to the A380-800F Aircraft to the
following company forever, said A380-800F Aircraft to be the property thereof:
FEDERAL EXPRESS CORPORATION ("FedEx").
AVSA hereby warrants to FedEx that it has on the date hereof good and lawful
right to sell, deliver and transfer title to the A380-800F Aircraft to FedEx and
that there is hereby conveyed to FedEx on the date hereof good, legal and valid
title to the A380-800F Aircraft, free and clear of all liens, claims, charges,
encumbrances and rights of others.
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:
-----------------------
<Page>
EXHIBIT E (R-R)
BILL OF SALE
Know all persons by these presents that AVSA, S.A.R.L. ("AVSA"), a SOCIETE A
RESPONSABILITE LIMITEE 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") 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 INDUSTRIE G.I.E. ROLLS-ROYCE
MODEL: A380-800F MODEL: TRENT 977
MANUFACTURER'S SERIAL NUMBERS:
SERIAL NUMBER: _______ Position #1: ____________
Position #2: ____________
REGISTRATION NO: _______ Position #3: ____________
Position #4: ____________
The Airframe, Engines and Parts are hereafter together referred to as the
aircraft (the "A380-800F AIRCRAFT").
AVSA does this ___ day of ___________, ______ sell, transfer and deliver all of
its above described rights, title and interest to the A380-800F Aircraft to the
following company forever, said A380-800F Aircraft to be the property thereof:
FEDERAL EXPRESS CORPORATION ("FedEx").
AVSA hereby warrants to FedEx that it has on the date hereof good and lawful
right to sell, deliver and transfer title to the A380-800F Aircraft to FedEx and
that there is hereby conveyed to FedEx, on the date hereof, good, legal and
valid title to the A380-800F Aircraft, free and clear of all liens, claims,
charges, encumbrances and rights of others.
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:
----------------------
<Page>
EXHIBIT F
INTENTIONALLY LEFT BLANK
<Page>
EXHIBIT G
AIRFRAME PRICE REVISION FORMULA
l. BASE PRICE
The Base Price of the Airframe is as quoted in Sub-clause 3.1.2
of the Agreement.
2. BASE PERIOD
[ * ]
The Base Price is subject to adjustment for changes in economic
conditions as measured by data obtained from the US Department of
Labor, Bureau of Labor Statistics, and in accordance with the
provisions of Paragraphs 4 and 5 of this Exhibit G.
ECIb and ICb index values indicated in Paragraph 4 of this
Exhibit G will not be subject to any revision of these indexes.
3. REFERENCE INDEXES
[ * ]
MATERIAL INDEX: Published monthly by the US Department of Labor,
Bureau of Labor Statistics, in "PPI Detailed Report" (Table 6:
"Producer prices indexes and percent changes for commodity
groupings and individual items, not seasonally adjusted"), or
such other names that may be, from time to time, used for the
publication title and/or table. The index is found under
industrial commodities (hereinafter referred to as "IC-Index")
(Base year of 1982 = 100).
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
<Page>
EXHIBIT G
4. REVISION FORMULA
[ * ]
In determining the Revised Base Price at Delivery of the
Aircraft, each quotient will be calculated to the nearest
ten-thousandth (4 decimals). If the next succeeding place is five
(5) or more, the preceding decimal place will be raised to the
next higher figure. The final factor will be rounded to the
nearest ten-thousandth (4 decimals). After final computation, Pn
will be rounded to the next whole number (0.5 or more rounded to
l).
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
<Page>
EXHIBIT G
5. GENERAL PROVISIONS
5.1 SUBSTITUTION OF INDEXES
In the event that:
(i) the U.S. Department of Labor substantially revises the
methodology of calculation of any of the indexes
referred to hereabove, or
(ii) the U.S. Department of Labor discontinues, either
temporarily or permanently, any of the indexes referred
to hereabove, or
(iii) the data samples used to calculate any of the indexes
referred to hereabove are substantially changed,
the Seller will select a substitute index.
Such substitute index will reflect as closely as possible the
actual variations of the wages or of the material costs, as the
case may be, used in the calculation of the original index.
As a result of this selection of a substitute index, the Seller
will make an appropriate adjustment to its price revision
formula, allowing to combine the successive utilization of the
original index and of the substitute index.
5.2 FINAL INDEX VALUES
The Revised Base Price at the date of Aircraft Delivery will be
final and will not be subject to further adjustments, of any kind
or for any reason, to the applicable indexes as published at the
date of Aircraft Delivery.
<Page>
EXHIBIT H (GE-P&W EA)
GE-P&W ENGINE ALLIANCE PRICE REVISION FORMULA
l. REFERENCE PRICE
The Reference Price of the four (4) GE-P&W Engine Alliance GP7277
Propulsion Systems is as quoted in Sub-clause 3.1.3.1 of the
Agreement.
This Reference Price is subject to adjustment for changes in
economic conditions as measured by data obtained from the US
Department of Labor, Bureau of Labor Statistics, and in
accordance with the provisions hereof.
2 REFERENCE PERIOD
The above Reference Price has been established in accordance with
the economic conditions prevailing in July 2000 (delivery
conditions January 2001) as defined, according to the ENGINE
ALLIANCE, by the ECIb and ICb index values indicated in Clause 4
of this Exhibit H.
3 INDEXES
[ * ]
The quarterly value released for a certain month (March, June,
September and December) shall be the one deemed to apply for the
two (2) preceding months.
Reference for access to the publications is located on the BLS
Internet site: ECU28102i
Material Index: "Industrial Commodities" (hereinafter referred to
as "IC") as published in "PPI Detailed report" (found in Table 6;
"Producer price indexes and percent changes for commodity
groupings and individual items, not seasonally adjusted," or such
other names that may be, from time to time, used for the
publication title and/or table). (Base Year of 1982 = 100).
Reference for access to the publications is located on the BLS
Internet site: WPU03thru15
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
<Page>
EXHIBIT H (GE-P&W EA)
4 REVISION FORMULA
[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
<Page>
EXHIBIT H (GE-P&W EA)
5. GENERAL PROVISIONS
5.1 ROUNDINGS
Each facto [ * ] shall be calculated to the nearest
ten-thousandth (4 decimals). If the next succeeding place is five
(5) or more, the preceding decimal place shall be raised to the
nearest higher figure.
After final computation Pn shall be rounded to the nearest whole
number (0.5 rounds to 1).
5.2 FINAL INDEX VALUES
The revised Reference Price at the date of Aircraft Delivery
shall be the final price and shall not be subject to any further
adjustments in the indexes.
If no final index values are available for any of the applicable
month, the then published preliminary figures shall be the basis
on which the Revised Reference Price shall be computed.
5.3 INTERRUPTION OF INDEX PUBLICATION
If the US Department of Labor substantially revises the
methodology of calculation or discontinues any of these indexes
referred to hereabove, the Seller shall reflect the substitute
for the revised or discontinued index selected by the Engine
Alliance, such substitute index to lead in application to the
same adjustment result, insofar as possible, as would have been
achieved by continuing the use of the original index as it may
have fluctuated had it not been revised or discontinued.
Appropriate revision of the formula shall be made to accomplish
this result.
5.4 ANNULMENT OF FORMULA
Should the above escalation provisions become null and void by
action of the US Government, the price shall be adjusted due to
increases in the costs of labor and material which have occurred
from the period represented by the applicable Reference Price
Indexes to the sixth (6th) month prior to the scheduled Aircraft
Delivery.
5.5 LIMITATION
Should the revised Reference Price be lower than the Reference
Price, the final price shall be computed with the Reference
Price.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
<Page>
EXHIBIT H (R-R)
PROPULSION SYSTEMS PRICE REVISION FORMULA
l. REFERENCE PRICE
The Reference Price of the Rolls-Royce Trent 977 Propulsion
Systems is as quoted in Sub-clause 3.1.3.2 of the Agreement.
This Reference Price is subject to adjustment for changes in
economic conditions as measured by data obtained from the US
Department of Labor, Bureau of Labor Statistics, and in
accordance with the provisions of Paragraphs 4 and 5 of this
Exhibit H.
2. REFERENCE PERIOD - REFERENCE COMPOSITE PRICE INDEX
The above Reference Price has been established in accordance with
the averaged economic conditions prevailing in December
1998/January 1999/February 1999 and corresponding to theoretical
delivery conditions prevailing in January 2000 as defined by ECIb
and ICb index values indicated in Paragraph 4 of this Exhibit H.
This Reference Price is subject to adjustment for changes in
economic conditions as measured by data obtained from the US
Department of Labor, Bureau of Labor Statistics, and in
accordance with the provisions of Paragraphs 4 and 5 of this
Exhibit H.
ECIb and ICb index values indicated in Paragraph 4 of this
Exhibit H will not be subject to any revision of these indexes.
3. REFERENCE INDEXES
[ * ]
MATERIAL INDEX: Published monthly by the US Department of Labor, Bureau of Labor
Statistics, in "PPI Detailed Report" (Table 6: "Producer prices indexes and
percent changes for commodity groupings and individual items, not seasonally
adjusted"), or such other names that may be, from time to time, used for the
publication title and/or table. The index is found under industrial commodities
(hereinafter referred to as "IC-Index") (Base year of 1982 = 100).
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
<Page>
EXHIBIT H (R-R)
4. REVISION FORMULA
[ * ]
In determining the Revised Base Price at delivery of the
Propulsion Systems, each quotient will be calculated to the
nearest ten-thousandth (4 decimals). If the next succeeding place
is five (5) or more, the preceding decimal place will be raised
to the next higher figure. The final factor will be rounded to
the nearest ten-thousandth (4 decimals). After final computation,
Pn will be rounded to the next whole number (0.5 or more rounded
to l).
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
<Page>
EXHIBIT H (R-R)
5. GENERAL PROVISIONS
5.1 SUBSTITUTION OF INDEXES
In the event that:
(i) the U.S. Department of Labor substantially revises the
methodology of calculation of any of the indexes
referred to hereabove, or
(ii) the U.S. Department of Labor discontinues, either
temporarily or permanently, any of the indexes referred
to hereabove, or
(iii) the data samples used to calculate any of the indexes
referred to hereabove are substantially changed,
the Propulsion Systems manufacturer will select a substitute
index.
Such substitute index will reflect, as closely as possible, the
actual variations of the wages or of the material costs, as the
case may be, used in the calculation of the original index.
As a result of this selection of a substitute index, the
Propulsion Systems manufacturer will make an appropriate
adjustment to its price revision formula, allowing to combine the
successive utilization of the original index and of the
substitute index.
5.2 FINAL INDEX VALUES
The Revised Base Price at the date of Aircraft Delivery will be
final and will not be subject to further adjustments, of any kind
or for any reason, to the applicable indexes as published at the
date of Aircraft Delivery.
<Page>
LETTER AGREEMENT NO. 1
As of July 12, 2002
FEDERAL EXPRESS CORPORATION
3610 Hacks Cross Road
Memphis, TN 38125
Re: [ * ]
Dear Ladies and Gentlemen:
FEDERAL EXPRESS CORPORATION (the "Buyer") and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A380-800F Purchase Agreement, dated as of
even date herewith (the "Agreement"), which covers, among other things, the sale
by the Seller and the purchase by the Buyer of certain Aircraft, under the terms
and conditions set forth in said Agreement. The parties hereto have agreed to
set forth in this Letter Agreement No. 1 (the "Letter Agreement") certain
additional terms and conditions regarding the sale of the Aircraft provided for
in the Agreement. Capitalized terms used herein and not otherwise defined in
this Letter Agreement will have the meanings assigned thereto in the Agreement.
The terms "herein," "hereof" and "hereunder" and words of similar import refer
to this Letter Agreement.
The parties hereto agree that this Letter Agreement will constitute an
integral, non-severable part of said Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference and that this Letter
Agreement will be governed by the provisions of said Agreement, except that if
the Agreement and this Letter Agreement have specific provisions that are
inconsistent, the specific provisions contained in this Letter Agreement will
govern.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA1-1
<Page>
1. [ * ]
1.1 The Seller will provide to the Buyer, upon Delivery of each
Aircraft, [ * ]
2. [ * ]
3. [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA1-2
<Page>
4. PREDELIVERY PAYMENT TERMS AND COMPUTATION
Sub-clause 5.2.2 of the Agreement is hereby superseded and
replaced by the following quoted provisions:
QUOTE
5.2.2 The Buyer will pay Predelivery Payments to the Seller [ * ]
UNQUOTE
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA1-3
<Page>
5. [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA1-4
<Page>
6. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or
of the Agreement, (but subject to the provisions of Sub-clause
20.2 of the Agreement), this Letter Agreement and the rights and
obligations of the Buyer hereunder will not be assigned or
transferred in any manner without the prior written consent of
the Seller, and any attempted assignment or transfer in
contravention of the provisions of this Paragraph 6 will be void
and of no force or effect.
LA1-5
<Page>
If the foregoing correctly sets forth our understanding, please
execute the original and one (1) copy hereof in the space below and return a
copy to the Seller.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ MARIE-PIERRE MERLE BERAL
----------------------------
Marie-Pierre Merle-Beral
Its: Chief Executive Officer
Accepted and Agreed
FEDERAL EXPRESS CORPORATION
By: /s/ JAMES R. PARKER
--------------------------
James R. Parker
Its: Vice President
LA1-6
<Page>
ATTACHMENT ONE TO LETTER AGREEMENT NO. 1
SUMMARY PRICING TABLE (FOR INFO ONLY)
[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA1-7
<Page>
LETTER AGREEMENT NO. 2
As of July 12, 2002
FEDERAL EXPRESS CORPORATION
3610 Hacks Cross Road
Memphis, TN 38125
Re: OPTION AIRCRAFT AND [ * ]
Dear Ladies and Gentlemen:
FEDERAL EXPRESS CORPORATION (the "Buyer") and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A380-800F Purchase Agreement, dated as of
even date herewith (the "Agreement"), which covers, among other things, the sale
by the Seller and the purchase by the Buyer of certain Aircraft, under the terms
and conditions set forth in said Agreement. The parties hereto have agreed to
set forth in this Letter Agreement No. 2 (the "Letter Agreement") certain
additional terms and conditions regarding the sale of the Aircraft provided for
in the Agreement. Capitalized terms used herein and not otherwise defined in
this Letter Agreement will have the meanings assigned thereto in the Agreement.
The terms "herein," "hereof" and "hereunder" and words of similar import refer
to this Letter Agreement.
The parties hereto agree that this Letter Agreement will constitute an integral,
non-severable part of said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference and that this Letter Agreement will be
governed by the provisions of said Agreement, except that if the Agreement and
this Letter Agreement have specific provisions that are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
1. [ * ]
1.1 [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA2-1
<Page>
1.2 [ * ]
1.2.1 [ * ]
1.2.2 [ * ]
1.3 [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA2-2
<Page>
1.4 [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA2-3
<Page>
2. OPTION AIRCRAFT
2.1 DELIVERY
2.1.1 DELIVERY SCHEDULE
The Seller will have the Option Aircraft Ready for Delivery as
set forth in Sub-clause 9.1.1 of the Agreement.
2.1.2 OPTION SCHEDULE [ * ]
[ * ]
2.2 OPTION EXERCISE
2.2.1 The Buyer may exercise its option to purchase Option Aircraft by
giving written notice to the Seller no later than [ * ] before
the scheduled month of Delivery of the applicable Option Aircraft
(the "Option Lead Time"). The Buyer will [ * ] inform the Seller
when it gives such notice whether it will exercise all the Option
Aircraft in a given calendar year. [ * ] The Buyer will also
inform the Seller, when it gives such notice, of its choice of
Propulsion Systems for each Option Aircraft exercised.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA2-4
<Page>
2.2.2 The Buyer and the Seller recognize that it is the Buyer's [ * ],
and the Seller agrees to work diligently with the Manufacturer,
taking into account the Manufacturer's commercial and industrial
constraints, to [ * ]
2.2.3 With respect to Option Aircraft Nos. [ * ] which are scheduled
for Delivery in [ * ] respectively, the Buyer may, at its sole
discretion, give written notice to the Seller, prior to the
Option Lead Time, of its intention [ * ] will have the same terms
and conditions as the Option Aircraft.
2.2.4 On the Buyer's written request, the Seller will, subject to
availability, offer the Buyer a Delivery position within the
timeframe requested by the Buyer for a [ * ] (an "Available
Delivery Position"). The Buyer will accept the Available Delivery
Position by [ * ] Working Days of the Seller's advice regarding
the Available Delivery Position and [ * ]
2.2.5 In respect of each [ * ] for which the Seller has offered the
Buyer an Available Delivery Position and for which the Buyer
[ * ], the Buyer and the Seller will have no more rights or
obligations with respect to the offer of such Available Delivery
Position in response to the Buyer's current request.
3. [ * ]
4. [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA2-5
<Page>
5. OPTION AIRCRAFT [ * ]
5.1 [ * ]
5.2 Subject to Sub-paragraph 5.1 above, [ * ]
5.3 [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA2-6
<Page>
5.4 [ * ]
5.5 [ * ]
6. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or
of the Agreement, (but subject to the provisions of Sub-clause
20.2 of the Agreement), this Letter Agreement and the rights and
obligations of the Buyer hereunder will not be assigned or
transferred in any manner without the prior written consent of
the Seller, and any attempted assignment or transfer in
contravention of the provisions of this Paragraph 6 will be void
and of no force or effect.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA2-7
<Page>
If the foregoing correctly sets forth our understanding, please
execute the original and one (1) copy hereof in the space below and return a
copy to the Seller.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ MARIE-PIERRE MERLE BERAL
----------------------------
Marie-Pierre Merle-Beral
Its: Chief Executive Officer
Accepted and Agreed
FEDERAL EXPRESS CORPORATION
By: /s/ JAMES R. PARKER
-------------------
James R. Parker
Its: Vice President
LA2-8
<Page>
ATTACHMENT ONE TO LETTER AGREEMENT NO. 2
SUMMARY PRICING TABLE (FOR INFORMATION ONLY)
[2 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA2-9
<Page>
LETTER AGREEMENT NO. 3
As of July 12, 2002
FEDERAL EXPRESS CORPORATION
3610 Hacks Cross Road
Memphis, TN 38125
Re: SPECIFICATION
Dear Ladies and Gentlemen:
FEDERAL EXPRESS CORPORATION (the "Buyer") and AVSA, S.A.R.L. (the "Seller"),
have entered into an Airbus A380-800F Purchase Agreement, dated as of even date
herewith (the "Agreement"), which covers, among other things, the sale by the
Seller and the purchase by the Buyer of certain Aircraft, under the terms and
conditions set forth in said Agreement. The parties hereto have agreed to set
forth in this Letter Agreement No. 3 (the "Letter Agreement") certain additional
terms and conditions regarding the sale of the Aircraft provided for in the
Agreement. Capitalized terms used herein and not otherwise defined in this
Letter Agreement will have the meanings assigned thereto in the Agreement. The
terms "herein," "hereof" and "hereunder" and words of similar import refer to
this Letter Agreement.
The parties hereto agree that this Letter Agreement will constitute an integral,
non-severable part of said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference and that this Letter Agreement will be
governed by the provisions of said Agreement, except that if the Agreement and
this Letter Agreement have specific provisions that are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
1. [ * ]
1.1. [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA3-1
<Page>
1.2 SCN DEVELOPMENT
During the development of the technical solutions for the SCNs,
the Seller will organize regular bi-lateral specialist meetings
with the Buyer's Engineering department to make sure that the
technical solutions meet the Buyer's technical and operational
requirements.
1.3 SCN WEIGHTS
The Seller has provided [ * ] The Seller and the Buyer will
jointly explore any weight-saving alternatives to reduce the
total of the Allowable Payload Changes without adversely
affecting the performance or durability of the technical
solutions.
2. [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA3-2
<Page>
3. [ * ]
4. [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA3-3
<Page>
5. [ * ]
6. [ * ]
7. [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA3-4
<Page>
8. [ * ]
9. [ * ]
10. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or
of the Agreement (but subject to the provisions of Sub-clause
20.2 of the Agreement), this Letter Agreement
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA3-5
<Page>
and the rights and obligations of the Buyer hereunder will not be
assigned or transferred in any manner without the prior written
consent of the Seller, and any attempted assignment or transfer
in contravention of the provisions of this Paragraph 10 will be
void and of no force or effect.
LA3-6
<Page>
If the foregoing correctly sets forth our understanding, please
execute the original and one (1) copy hereof in the space below and return a
copy to the Seller.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ MARIE-PIERRE MERLE BERAL
----------------------------
Marie-Pierre Merle-Beral
Its: Chief Executive Officer
Accepted and Agreed
FEDERAL EXPRESS CORPORATION
By: /s/ JAMES R. PARKER
------------------------
James R. Parker
Its: Vice President
LA3-7
<Page>
Appendix 1 to Letter Agreement No. 3
[239 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA3-8
<Page>
Appendix 2-1 to Letter Agreement No. 3
[3 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA3-9
<Page>
Appendix 2-2 to Letter Agreement No. 3
[3 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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LETTER AGREEMENT NO. 4
As of July 12, 2002
FEDERAL EXPRESS CORPORATION
3610 Hacks Cross Road
Memphis, TN 38125
RE: GENERAL [ * ] PRODUCT SUPPORT AGREEMENT
Dear Ladies and Gentlemen:
FEDERAL EXPRESS CORPORATION (the "Buyer") and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A380-800F Purchase Agreement, dated as of
even date herewith (the "Agreement"), which covers, among other things, the sale
by the Seller and the purchase by the Buyer of certain Aircraft, under the terms
and conditions set forth in said Agreement. The parties hereto have agreed to
set forth in this Letter Agreement No. 4 (the "Letter Agreement" or the
"Conditions") certain additional terms and conditions regarding the sale of the
Aircraft provided for in the Agreement. Capitalized terms used herein and not
otherwise defined in this Letter Agreement will have the meanings assigned
thereto in the Agreement. The terms "herein," "hereof" and "hereunder" and words
of similar import refer to this Letter Agreement.
The parties hereto agree that this Letter Agreement will constitute an integral,
non-severable part of said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference and that this Letter Agreement will be
governed by the provisions of said Agreement, except that if the Agreement and
this Letter Agreement have specific provisions that are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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TABLE OF CONTENTS
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1. DEFINITIONS...............................................................................................6
2. GENERAL...................................................................................................8
2.1 SCOPE.....................................................................................................8
2.2 SCOPE OF MATERIEL SUPPORT.................................................................................9
2.3 STORES...................................................................................................10
2.4 AGREEMENTS OF THE BUYER..................................................................................11
2.5 EQUIPMENT SUPPLIER PRODUCT SUPPORT.......................................................................11
3. SPARES SUPPORT...........................................................................................16
3.1 INITIAL PROVISIONING.....................................................................................16
3.2 REPLENISHMENT AND DELIVERY...............................................................................20
3.3 REPAIRS..................................................................................................24
3.4. PRICE....................................................................................................26
3.5 PAYMENT PROCEDURES AND CONDITIONS........................................................................27
3.7 TITLE....................................................................................................28
3.8 BUY-BACK.................................................................................................28
3.9 INVENTORY USAGE DATA.....................................................................................30
3.10 RE-ORDER FOR UNMODIFIED ITEMS............................................................................30
3.11 OBSOLESCENCE.............................................................................................30
3.12 BAR-CODING...............................................................................................30
4. TECHNICAL DATA AND DOCUMENTATION.........................................................................31
4.1 GENERAL..................................................................................................31
4.2 SCOPE....................................................................................................31
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4.3 AIRCRAFT IDENTIFICATION FOR TECHNICAL DATA...............................................................32
4.4 SUPPLIER EQUIPMENT.......................................................................................32
4.5 DELIVERY.................................................................................................33
4.6 REVISION SERVICE.........................................................................................34
4.7 SERVICE BULLETINS (SB) INCORPORATION.....................................................................34
4.8 PERFORMANCE ENGINEER'S PROGRAMS..........................................................................34
4.9 AIRBUS ON-LINE SERVICES (AOLS)...........................................................................34
4.10 FUTURE DEVELOPMENTS......................................................................................34
4.11 TECHNICAL DATA FAMILIARIZATION...........................................................................35
4.12 CUSTOMER ORIGINATED CHANGES..............................................................................35
4.13 WARRANTIES...............................................................................................36
4.14 PROPRIETARY RIGHTS.......................................................................................36
4.15 CONFIDENTIALITY..........................................................................................37
5. TECHNICAL SERVICES.......................................................................................38
5.1. TECHNICAL ASSISTANCE, LIAISON AND REPORTING..............................................................38
5.2. CORRECTION OF IN-SERVICE PROBLEMS/[ * ]..................................................................39
5.3 SELLER REPRESENTATIVES AND DUTIES........................................................................39
5.4 TRAINING AND CBT AIDS....................................................................................42
5.5. [ * ]....................................................................................................42
5.6. [ * ]....................................................................................................43
5.7. [ * ]....................................................................................................43
6 WARRANTIES AND GUARANTEES................................................................................44
6.1 SELLER WARRANTY AT AIRCRAFT DELIVERY.....................................................................44
6.2 SELLER WARRANTY FOR SELLER PARTS.........................................................................55
6.3 SUPPLIER WARRANTIES......................................................................................55
6.4 SELLER SERVICE LIFE POLICY...............................................................................56
6.5 [INTENTIONALLY DELETED]..................................................................................59
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6.6 [ * ]....................................................................................................59
6.7. [ * ]....................................................................................................65
6.8. [ * ]....................................................................................................68
6.9 LIMITATIONS..............................................................................................68
6.10 EXCLUSIVITY OF WARRANTIES................................................................................68
6.11 DUPLICATE REMEDIES.......................................................................................70
6.12 NEGOTIATED AGREEMENT.....................................................................................72
7 INTERFACE COMMITMENT.....................................................................................73
7.1 INTERFACE PROBLEM........................................................................................73
7.2 SELLER'S RESPONSIBILITY..................................................................................73
7.3 SUPPLIER'S RESPONSIBILITY................................................................................73
7.4 JOINT RESPONSIBILITY.....................................................................................73
7.5 GENERAL..................................................................................................74
8 [ * ]....................................................................................................75
8.1 [ * ]....................................................................................................75
8.2 [ * ]....................................................................................................76
9. [ * ]....................................................................................................79
9.1. [ * ]....................................................................................................79
9.2. [ * ]....................................................................................................79
9.3. [ * ]....................................................................................................79
10. SUBCONTRACTING...........................................................................................80
11. EXCUSABLE DELAYS.........................................................................................81
12. SELLER PARTS LEASING.....................................................................................82
12.1 GENERAL..................................................................................................82
12.2 LEASING PROCEDURE........................................................................................82
12.3 LEASE PERIOD.............................................................................................82
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12.4 LEASE CHARGES AND TAXES..................................................................................83
12.5 RISK OF LOSS, MAINTENANCE, STORING AND REPAIR OF THE LEASED PART.........................................83
12.6 TITLE....................................................................................................84
12.7 RETURN OF LEASED PART....................................................................................84
12.8 OPTION TO PURCHASE.......................................................................................85
12.9 WARRANTIES...............................................................................................85
13. TERMINATION..............................................................................................90
14. ASSIGNMENT...............................................................................................91
EXHIBIT A - [ * ]...............................................................................................93
EXHIBIT B - [ * ]................................................................................................95
EXHIBIT C - REPORTING TABLES.....................................................................................96
EXHIBIT D - SELLER SERVICE LIFE POLICY...........................................................................96
EXHIBIT E - SELLER PARTS LEASING LIST...........................................................................101
EXHIBIT F - TECHNICAL DATA FOR THE AIRCRAFT.....................................................................102
EXHIBIT F - APPENDIX 1 - LICENSE FOR USE OF THE PERFORMANCE ENGINEER'S PROGRAMS (PEP)...........................105
EXHIBIT F - APPENDIX 2 - AOLS LICENSE...........................................................................108
EXHIBIT F - APPENDIX 3 - DATA RELEASE AGREEMENT (DRA)..............................................................
EXHIBIT G - GCP2000 - ISSUE 5......................................................................................
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* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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1. DEFINITIONS
In these Conditions:
The "Aircraft" As defined in Clause 0 of the Purchase
Agreement.
The "Aviation means all official Authorities having the
Authority" ability to approve the design, the manufacture,
the sale and the support, the individual
airworthiness and the continuous airworthiness
of the Aircraft and/or the Item, including but
not limited to:
(1) in FRANCE:
La Direction Generale de l'Aviation Civile
(DGAC)
(2) in the UNITED KINGDOM:
The Civil Aviation Authority (CAA)
(3) in the FEDERAL REPUBLIC OF GERMANY: The
Luftfahrtbundesamt (LBA)
(4) in SPAIN:
The Direccion de Aviacion Civil (DAC)
(5) in the UNITED STATES OF AMERICA: The
Federal Aviation Administration (FAA)
The "Certificate of means the Certificate of Airworthiness issued
Airworthiness" in respect of the Aircraft by the Aviation
Authority.
The "Component" means [ * ]
The "Item" means, whatever the quantity and variety [ * ]
The "Manufacturer" means
AIRBUS G.I.E.
1 rond point Maurice Bellonte
31700 BLAGNAC - FRANCE
A Groupement d'Interet Economique
established in accordance with the Ordonnance
N DEG. 67-821 of September 23, 1967 and with
the Decret, dated February 2, 1968, of the
French Republic.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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The "Order" means the purchase order placed by the Buyer
subject to these Conditions, with the Seller
and amendments thereto.
The "Program" means the Aircraft program.
The "Shipset" means [ * ]
The "Spare Parts" means the parts required for maintenance,
repair, modification or overhaul [ * ]
The "Supplier" As defined in Clause 0 of Purchase Agreement.
The "Support" means the after-sales product support services
provided by the Seller to the Buyer, as
described in these Conditions.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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2. GENERAL
2.1 SCOPE
These Conditions describe the essential Customer Support Services
provided by the Seller to the Buyer for Aircraft and defines the
relationship between the Seller and the Buyer at the occasion of
said services.
2.1.1 World Airline and Suppliers Guide (WASG)
The Seller agrees to adhere to the terms and conditions of the
WASG issued and updated by Air Transport Association of America
(ATA) inasmuch as the terms and conditions contained therein do
not differ from those contained in these Conditions. These
Conditions will govern in case of any conflict or discrepancy
with the WASG.
2.1.2 Organization
The Seller shall maintain a fully operational customer support
organization with an adequate number of suitably qualified
personnel to provide prompt fulfillment of these Conditions
throughout the entire contractual Support period.
Within thirty (30) days after the execution of the Agreement, the
Seller shall provide to the Buyer an organization chart of its
Customer Support Department so that correspondence can be
correctly addressed. The names of individuals and dedicated
contacts responsible for particular functions of Customer Support
shall also be given. The Seller shall advise the Buyer whom to
contact for emergency calls (AOG services) after normal working
hours. Updates shall be provided as changes occur.
2.1.3. FACILITIES
Within ninety (90) days after execution of the Agreement, the
Seller shall provide to the Buyer details of all facilities,
whether existing or planned, in all countries, including the
country of the Seller, and whether integrated in the Seller's
organization or subcontracted as per Condition 10, and shall
state whether these facilities will cover:
a. technical representation
b. stock and supply of Items (Components and Spare Parts),
and
c. repair and overhaul facilities or stations.
All such facilities shall be identified by an FSCM or CAGE code.
Updates shall be provided as changes occur.
2.1.4. Support Period
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As long as a minimum of one (1) Aircraft is in regular operation
in the Buyer's fleet of aircraft, the Seller will maintain the
facilities and organization as detailed above to provide to the
Buyer the Support.
2.1.5. Language
Unless otherwise agreed upon between the Seller and the Buyer,
all correspondence shall be written in the English language.
2.2 Scope of Materiel Support
2.2.l. Materiel is classified into the following categories (hereinafter
referred to as "Materiel"):
(i) Seller Parts (industrial proprietary components,
equipment, accessories or parts of the Manufacturer
manufactured to the detailed design of the
Manufacturer, or a subcontractor of it, and bearing
official part numbers of the Manufacturer or material
for which the Seller has exclusive sales rights in the
United States);
(ii) Supplier Parts classified as Repairable Line
Maintenance Parts in accordance with SPEC 2000;
(iii) Supplier Parts classified as Expendable Line
Maintenance Parts in accordance with SPEC 2000; and
(iv) Ground Support Equipment and Specific (To-Type) Tools.
2.2.2 The Seller Parts listed in Exhibit E are available for lease by
the Seller to the Buyer.
2.2.3 The Support to be provided hereunder by the Seller covers the
Materiel both for initial provisioning as described in
Sub-condition 3.1 and for replenishment as described in
Sub-condition 3.2.
Repairable Line Maintenance Parts specified in Sub-condition
2.2.1 (ii) having fewer than [ * ] are considered as new for
invoicing purposes.
2.2.4 Propulsion Systems are not covered under this Letter Agreement
and will be subject to direct agreements between the Buyer and
the relevant Propulsion System Manufacturer. The Seller will use
its reasonable efforts to assist the Buyer in case of any
difficulties with the availability of Propulsion Systems and
associated spare parts.
2.2.5 During a period commencing prior to entry into service of the
Aircraft and continuing for as long as at least one (1) Aircraft
is operated in commercial air transport service ("Term"), the
Seller shall maintain, or have maintained, such stock of Seller
Parts as defined in Sub-condition 2.3.4 below and will furnish
interchangeable and/or
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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replaceable Seller Parts with the appropriate documentation and
data adequate to meet the Buyer's needs for repairs,
replacements, retrofits or maintenance of the Aircraft.
The Seller will use its reasonable efforts to obtain a similar
service from all Suppliers of parts, which are originally
installed on the Aircraft and not manufactured by the Seller.
2.3 Stores
2.3.1 Airbus North America Customer Services Spares Center
The Seller has established and will maintain, or cause to be
maintained, as long as at least one (1) aircraft of the type of
the Aircraft are operated by US airlines in commercial air
transport service (the "US Term"), a US store adjacent to Dulles
International Airport, Washington, DC, known as the Airbus North
America Customer Services Spares Center - Washington ("Airbus
North America Customer Services Spares Center"). The Airbus North
America Customer Services Spares Center will be operated
twenty-four (24) hours/day, seven (7) days/week, all year for the
handling of AOG and critical orders for Seller Parts.
2.3.2. Material Support Center, Germany
The Manufacturer has set up and will maintain, or cause to be
maintained, during the Term, a store of Seller Parts at its
Materiel Support Center ("MSC") in Hamburg, Germany. MSC will be
operated twenty-four (24) hours/day, seven (7) days/week, all
year.
2.3.3 Other Points of Shipment
The Seller reserves the right to effect deliveries from
distribution centers other than the Airbus North America Customer
Services Spares Center or MSC and from any of the production
facilities of the Associated Contractors.
2.3.4 Stocks and repair stations
The Seller undertakes to maintain in Europe, in the Far-East and
in the United States of America, and other locations as a
function of market needs, repair stations and adequate stocks of
Items. The repair stations shall be approved by the FAA/JAA or
other Aviation Authority as necessary.
This stock of Items shall be established taking into account at
least the following parameters:
a) actual Item reliability,
b) outstanding IP deliveries,
c) number of Aircraft in the region served by the concerned
repair station and/or stockist,
d) Components classified as NO GO Items,
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e) industrial lead-times,
f) interchangeability and configuration of the delivered Items;
and the following circumstances:
a) outstanding Service Bulletins (SB) and modification /
retrofit campaigns,
b) major checks/overhauls, and
c) in-service problems.
2.4 Agreements of the Buyer
2.4.1 The Buyer agrees to purchase from the Seller the required Seller
Parts, as determined by the Buyer, for the Buyer's own needs
during the Term, provided that the provisions of this
Sub-condition 2.4 will not in any way prevent the Buyer from
resorting to the Seller Parts stocks of other operators operating
the same aircraft type as the Aircraft or from purchasing Seller
Parts from said operators or from distributors, provided said
Seller Parts have been designed and manufactured as specified in
Sub-condition 2.2.1(i).
2.4.2 The Buyer may manufacture, or have manufactured, for its own use,
without paying any license fee to the Seller, or may purchase
from other sources, parts equivalent to Seller Parts:
2.4.2.1 after expiration of the Term, if at such time the Seller Parts
are out of stock,
2.4.2.2 at any time, to the extent Seller Parts are needed to effect
aircraft on ground ("AOG") repairs on any Aircraft delivered
under the Agreement and are not available from the Seller within
a lead time shorter than, or equal to, the time in which the
Buyer can procure such Seller Parts, and provided the Buyer will
not sell such Seller Parts,
2.4.2.3 if the Seller fails to fulfill its obligations with respect to
any Seller Parts pursuant to Sub-condition 2.2 within a
reasonable time after written notice thereof from the Buyer,
2.4.2.4 in those instances where a Seller Part is identified as "Local
Manufacture" in the Illustrated Parts Catalog (IPC),
2.4.2.5 it is demonstrated by the Buyer that the Seller Part price is
excessive and the Seller refuses to reduce such price to a
reasonable level.
2.4.3 The rights granted to the Buyer in Sub-condition 2.4.2 will not
in any way be construed as a license, nor will they in any way
obligate the Buyer to the payment of any license fee or royalty,
nor will they in any way be construed to affect the rights of
third parties.
2.5 Equipment Supplier Product Support
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2.5.1 Equipment Supplier Product Support Agreements
2.5.1.1 The Seller has obtained Supplier Product Support Agreements
transferable to the Buyer from Suppliers of Seller Furnished
Equipment listed in the Specification and as applicable in the
IPC.
2.5.l.2 These agreements are based on, or exceed, the requirements of the
"World Airlines and Suppliers Guide" and include Supplier
commitments contained in the Supplier Product Support Agreements,
which include the following:
(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 and in
accordance with Condition 4 of this Letter 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 Exhibit to
the Component Maintenance Manual, be provided in
compliance with ATA Specification 102 up to Level 3 to
protect the Suppliers' 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.
2.5.2 [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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2.5.3 Supplier Part Repair Stations
The Manufacturer has developed with the Suppliers a comprehensive
network of repair stations in North America for those Supplier
Parts originating from outside North America.
As a result, most Supplier Parts are repairable in North America,
and corresponding repair stations are listed in the AOG and
Repair Guide, which is issued and regularly updated by the
Seller.
The Seller undertakes that the Supplier Parts that have to be
forwarded for repair outside North America will be sent back to
the Buyer with proper tagging as required by the FAA.
The Seller will support the Buyer in cases where the agreed-to
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.
2.5.4 [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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3. SPARES SUPPORT
3.1 INITIAL PROVISIONING (IP)
3.1.1 INITIAL PROVISIONING PERIOD
The Initial Provisioning Period is defined as the period up to
and expiring on the ninetieth (90th) day after Delivery of the
last Firm Aircraft.
3.1.2 PREPROVISIONING MEETING
3.1.2.1 The Seller will organize a meeting (i) at MSC, (ii) at Airbus
North America Customer Services or (iii) at a place to be
mutually agreed upon, to formulate an acceptable schedule and
working procedure to accomplish the Initial Provisioning of
Materiel (the "Pre-provisioning Meeting").
3.1.2.2 The date of the meeting will be mutually agreed to allowing a
minimum preparation time of eight (8) weeks for the Initial
Provisioning Conference referred to in Sub-condition 3.1.4 below.
3.l.3 Initial Provisioning Training
Upon the request of the Buyer, the Seller can provide Initial
Provisioning training for the Buyer's provisioning and purchasing
personnel. The following areas will be covered:
(i) Familiarization of the Buyer with the provisioning
documents,
(ii) Explanation of the technical function, as well as the
necessary technical and commercial Initial Provisioning
Data, and
(iii) Familiarization with the Seller's purchase order
administration system.
3.1.4 Initial Provisioning Conference
The Seller will organize an Initial Provisioning Conference at
MSC or Airbus North America Customer Services that will include
the participation of major Suppliers, as agreed on during the
Pre-provisioning Meeting (the "Initial Provisioning Conference").
Such conference will not take place earlier than eight (8) weeks
after Buyer Definition Freeze.
3.l.5 Seller-Supplied Data
The Seller will prepare and supply to the Buyer the following
data:
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3.1.5.l Initial Provisioning Data
Initial Provisioning data elements, generally in accordance with
SPEC 2000, Chapter 1, ("Initial Provisioning Data") will be
supplied by the Seller to the Buyer in a form, format and within
a time period to be mutually agreed on during the
Pre-provisioning Meeting.
For Seller Parts identified as IP recommended parts, the Seller
will, at no cost to the Buyer, ensure that delivery of such parts
is made directly from the Seller's stock to the Buyer on request
by the Buyer.
Revision service will be provided every ninety (90) days, up to
the end of the Initial Provisioning Period.
In any event, the Seller will ensure that Initial Provisioning
Data is released to the Buyer in time to give the Buyer
sufficient time, but in no event less than one (l) year, to
perform any necessary evaluation and allow the on-time delivery
of any ordered Materiel.
[ * ]
3.l.5.2 Supplementary Data
The Seller will provide the Buyer with supplementary data to the
Initial Provisioning Data, including Local Manufacture Tables
(X-File) and Ground Support Equipment and Specific (To-Type)
Tools (W-File), in accordance with SPEC 2000, Chapter 1.
3.l.5.3 Data for Standard Hardware
The Initial Provisioning Data provided to the Buyer will include
data for hardware and standard materiel.
3.l.6 Supplier-Supplied Data
3.l.6.1 General
The Seller will obtain from Suppliers agreements to prepare and
issue Initial Provisioning Data for the Materiel described in
Sub-condition 2.2.1 (ii) in English, for components for which the
Buyer has elected to receive data.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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Said data (initial issue and revisions) will be transmitted to
the Buyer through the Suppliers and/or the Seller. The Seller
will not be responsible for the substance of such data.
In any event, the Seller will exert its reasonable efforts to
supply such Data to the Buyer in due time to give the Buyer
sufficient time to perform any necessary evaluation and allow
on-time deliveries.
3.1.6.2 Initial Provisioning Data
Initial Provisioning Data elements for Supplier Parts pursuant to
Sub-condition 2.2.l(ii), generally in accordance with SPEC 2000,
Chapter l, will be furnished as mutually agreed to during a
Pre-provisioning Meeting with revision service assured up to the
end of the Initial Provisioning Period.
3.l.7 Initial Provisioning Data Compliance
Initial Provisioning Data generated by the Seller and supplied to
the Buyer will comply with the latest configuration of the
Aircraft to which such data relate as known three (3) months
before the date of issue. Said data will enable the Buyer to
order Materiel conforming to its Aircraft as required for
maintenance and overhaul.
This provision will not cover:
- Buyer modifications not known to the Seller,
- modifications not agreed to by the Seller.
3.1.8 Commercial Offer
3.1.8.1 At the end of the Initial Provisioning Conference, the Seller
will, at the Buyer's request, submit a commercial offer for all
Materiel mutually agreed as being Initial Provisioning, based on
the Seller's and Suppliers' sales prices valid at the time of
finalization of the Initial Provisioning Conference. This
commercial offer will be valid for a period to be mutually agreed
upon, irrespective of any price changes for Seller Parts during
this period, except for significant errors and/or price
alterations due to part number changes and/or Supplier price
changes.
3.1.8.2 During the Initial Provisioning Period, the Seller will supply
Materiel, as defined in Sub-condition 2.2.l and ordered from the
Seller, which will be in conformity with the configuration
standard of the applicable Aircraft and with the Initial
Provisioning Data transmitted by the Seller. Otherwise, the
Seller shall immediately replace such Materiel at no cost to the
Buyer.
3.1.8.3 The Seller will require Suppliers to provide a similar service
for their items.
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3.1.9 Delivery of Initial Provisioning Materiel
3.1.9.1 To support the operation of the Aircraft, the Seller will be
required to deliver Materiel ordered during the Initial
Provisioning Period against the Buyer's orders and according to a
mutually agreed upon schedule. Provided the Buyer's orders have
been placed within seven (7) months after receipt of the Initial
Provisioning Data, but within the lead times for Materiel as
defined in Sub-conditions 2.2.1(i) to (iv) before Delivery of the
corresponding Aircraft, one hundred percent (100%) of the ordered
quantity of each item, including line station items, will be
delivered [ * ], at the Buyer's discretion, before Delivery of
the first Aircraft. If said one hundred percent (100%) cannot be
accomplished, in respect of Materiel described in Sub-condition
2.2.1(i), the Seller will be required to have such items
available at its facilities, and, in respect of Materiel
described in Sub-conditions 2.2.1(ii) through (iv), the Seller
will endeavor to have such items available at the applicable
Suppliers' facilities for immediate supply in case of an AOG.
3.l.9.2 Unless otherwise agreed to, the Seller shall not quote leadtimes
longer than [ * ].
3.1.9.3 The Buyer may cancel or modify Initial Provisioning orders placed
with the Seller, with no cancellation charge, not later than the
quoted lead time before scheduled delivery of said Materiel.
3.1.9.4 If the Buyer cancels or modifies any orders for Materiel outside
the time limits defined in Sub-condition 3.1.9.3, the Buyer will
reimburse the Seller for any direct costs incurred in connection
therewith and the Seller will have no liability for such
cancellation or modification.
3.l.9.5 All transportation costs for the return of Materiel under this
Sub-condition 3.1, including any insurance, customs and duties
applicable or other related expenditures, will be borne by the
Seller.
3.l.10 Initial Provisioning Data for Exercised Options
3.1.10.1 All Aircraft for which the Buyer exercises its option will be
included into the revision of the provisioning data that is
issued after option exercise if such revision is not scheduled to
be issued within four (4) weeks from the date of option exercise.
If the option exercise date does not allow four (4) weeks
preparation time for the Seller, the concerned Aircraft will be
included in the subsequent revision as may be mutually agreed.
3.1.10.2 The Seller will, from the date of option exercise until three (3)
months after Delivery of each Aircraft, submit to the Buyer
details of particular Seller components being installed on each
Aircraft, with recommendations regarding order quantity. A list
of
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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such components will be supplied at the time of the provisioning
data revision, as specified above.
3.1.10.3 The data concerning Materiel will, at the time of each Aircraft
Delivery, at least cover such Aircraft's technical configuration
as it existed six (6) months prior to Delivery and will be
updated to reflect the final status of the concerned Aircraft
once manufactured. Such update will be included in the data
revisions issued three (3) months after Delivery of such
Aircraft. The Seller will reduce this revision cycle if shorter
cycles become available.
3.2 Replenishment and Delivery
3.2.l General
Buyer's purchase orders are administered in accordance with SPEC
2000, Chapter 3. However, Sub-condition 3.2.2 below does not
apply to Initial Provisioning Data and Materiel as described in
Sub-condition 3.1.
3.2.2 Lead times
In general, lead times are in accordance with the provisions of
the "World Airlines and Suppliers' Guide" (latest edition).
Unless otherwise agreed to with the Buyer, the lead times quoted
in the Seller's price list for delivery to the Buyer (the
"Guaranteed Lead Times") shall not be more than :
a) seven (7) calendar days for shelf stock Items and for Items
classified as NO GO, GO IF and components with an MTBUR
achieved or guaranteed lower than five thousand (5,000)
flight hours and
b) forty-five (45) calendar days for standard tooling and
rotables/repairable and not qualifying as shelf stock Items,
as determined in the WASG.
3.2.2.1 Seller Parts (described in Sub-condition 2.2.1 (i)) listed in the
Seller's Spare Parts Price List can be dispatched within the lead
times defined in the Seller's Spare Parts Price List.
Lead times for Seller Parts, which are not published in the
Seller's Spare Parts Price List, are quoted on request. In any
event, the Seller shall comply with the latest industry standards
to quote non-shelf stock Item lead times. In no event shall the
time to quote be greater than ten (10) days.
3.2.2.2 Materiel of Sub-conditions 2.2.1 (ii) through 2.2.1 (iv) can be
dispatched within the Supplier's lead time augmented by the
Seller's own order and delivery processing time.
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3.2.2.3 Expedite Service
3.2.2.3.1 The Seller operates a twenty-four (24)-hour-a-day, seven
(7)-day-a-week expedite service to supply relevant Seller Parts
available in the Seller's stock, workshops and assembly line,
including long-lead-time Spare Parts, to the international
airport nearest to the location of such part (the "Expedite
Service").
3.2.2.3.2 The Expedite Service is operated in accordance with the "World
Airline and Suppliers Guide." Accordingly, the Seller will notify
the Buyer of the action taken to effect the Expedite Service as
follows:
(i) four (4) hours after receipt of an AOG order,
(ii) twenty-four (24) hours after receipt of a critical
order (imminent AOG or work stoppage),
(iii) [ * ] Working Days after receipt of an expedite order
from the Buyer.
3.2.2.3.3 The Seller will deliver Seller Parts requested on an expedite
basis against normal orders placed by the Buyer, or on telephone
or telex requests by the Buyer's representatives. Such telephone
or telex requests will be confirmed by subsequent Buyer's orders
for such Seller Parts within a reasonable time.
3.2.3 Delivery Status
The Seller will report to the Buyer the status of supplies
against orders on a monthly basis.
3.2.4 Excusable Delay
Condition 11 of these Conditions applies to the Materiel support.
3.2.5 Shortages, Over-shipments, Non-Conformity in Orders
3.2.5.1 Not later than thirty (30) days after receipt of Materiel
delivered pursuant to a purchase order, the Buyer will advise the
Seller:
(i) of any alleged shortages or over-shipments with respect
to such order, and
(ii) of all nonconformities in part number in such order
subjected to inspections by the Buyer visibly
noticeable at the time of delivery.
If the Buyer has not advised the Seller of any such alleged
shortages, over-shipments or non-conformities within the
above-defined period, the Buyer will be deemed to have accepted
the deliveries.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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3.2.5.2 If the Buyer reports over-shipments or non-conformities within
the period defined in ondition 3.2.5.l, then the Seller will, if
the Buyer accepts such over-shipment or non-conformities, either
replace the applicable Materiel or credit the Buyer for the
returned Materiel. [ * ]
3.2.6 Packaging
All Materiel will be packaged in accordance with ATA 300
Specification, Category III for consumable/expendable materiel
and Category II for rotables. Category I containers will be used
if requested by the Buyer, and the difference between Category I
and Category II packaging costs will be paid by the Buyer
together with payment for the respective Materiel. The original
packing list is required to have the FSC codes of OEM suppliers
for each MPN to be delivered in electronic format compatible with
SPEC 2000.
3.2.7. Delivery instructions
With each shipment, the Seller is expected to enclose evidence of
airworthiness conformity and proof of work as required by
legislation and by the Order.
3.2.7.l. Airworthiness Documentation
All shipments of Items must be accompanied by current
Airworthiness Export Documentation, such as FAA Form 8130-3 or
equivalent form such as JAA Form One or Form AAC038, plus
relevant work and test reports. The Seller shall ensure that all
such documents are available and updated as needed.
The documentation to be supplied together with the Items shall
comprise the following:
a) For new Items
- Export Airworthiness Approval Tag (Form 8130-3 or
equivalent) for Class II and III parts,
- Certificate of Conformity for standard hardware parts,
- Test report where required by the specification, and
- Release certificate.
b) For used Items
- Release certificate (maintenance done under FAR/JAR
8130-3/JAA Form One/AAC-038),
- Work report,
- Test report, and
- Sufficient maintenance history data.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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3.2.7.2. FAR/TSO or PMA requirements
- Items covered by a Technical Standard Order (TSO) must be
identified in accordance with FAR 21.607 or equivalent JTSO
or other equivalent documents.
- Items covered by a Parts Manufacturer Approval (PMA) must be
identified in accordance with FAR 45.15.
3.2.7.3. Export License
Where an Item is subject to export licensing procedures in the
country of the Seller, the Seller shall ensure that an export
license or similar documentation is obtained from its official
authorities in time to allow delivery of the Item in accordance
with the Buyer's Order delivery date.
When such date cannot be met due to lack of export license, the
Buyer shall have the right to cancel the Order at no liability to
the Buyer.
Delivery notes must detail the country of origin.
3.2.7.4 Life- or shelf-life-limited parts
When the Seller delivers life-limited or shelf-life-limited or
periodic-check-limited parts, the life limit or the shelf life or
the periodic check, as well as the manufacture date, shall be
specified on the release certificate and on the part packaging,
and such part shall have at least eighty-five percent (85%) shelf
life left at the time of delivery.
3.2.8. Return to the Seller
Should the Buyer find non-visual damage or functional faults
affecting the delivered Item, or deviations from the Order
specifications, the Buyer shall be entitled to return the Item to
the Seller, within thirty (30) calendar days after discovery, at
the Seller's expense.
3.2.9. Delay in delivery
The Seller shall immediately inform the Buyer of any known or
anticipated delay and shall indicate a new delivery date.
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3.2.10 [ * ]
3.2.11. Delivery monitoring and reporting
The Buyer and the Seller will agree on the monitoring of the
Seller's Items delivery time, in the form of a Buyer Order status
report.
3.3 Repairs
3.3.1 [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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3.3.2. Computation
The SPT shall be computed between physical receipt of the Item at
the Seller's repair facilities and Airway Bill (AWB) issuance for
shipment of the repaired Item from the Seller's facilities. This
computation shall exclude delays not attributable to the Seller
such as, but not limited to, the Buyer's time to answer the
repair quotations from the Seller.
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3.3.3. [ * ]
3.3.4. [ * ]
3.3.5 SPT Monitoring and Reporting
The Buyer and the Seller will agree on the monitoring of the
Seller's SPT in the form of a customer repair order status
report.
3.4. PRICE
3.4.1 The Materiel prices will be:
(i) [ * ] the Airbus North America Customer Services Spares
Center, for deliveries from Airbus North America
Customer Services.
(ii) [ * ] place specified by the Seller, for deliveries
from other Seller or Supplier facilities.
3.4.2 Prices will be the Seller's sales prices in effect on the date of
receipt of the order (subject to reasonable quantities and
delivery time) and will be expressed in US dollars.
3.4.3 Prices of Seller Parts will be in accordance with the current
Seller's Spare Parts Price List. Prices will be firm for each
calendar year. The Seller will notify the Buyer of the next
calendar year's pricing three (3) months prior to the next
calendar
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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year, if available. [ * ]
3.4.4 Prices of Materiel as defined in Sub-conditions 2.2.1 (ii)
through 2.2.1 (iv) will be the valid list prices of the Supplier
augmented by the Seller's handling charge. The percentage of the
handling charge will vary with the Materiel's value and will be
determined item by item.
3.4.5 The Seller warrants that, should the Buyer purchase one hundred
percent (100 %) of the recommended Initial Provisioning package
of the Materiel as defined in Sub-conditions 2.2.1 (ii) through
2.2.l (iv) through the Seller, the average handling charge on the
total package will not exceed [ * ]
This average handling charge will apply when all orders are
received by the Seller no later than nine (9) months before first
Aircraft delivery.
3.5 PAYMENT PROCEDURES AND CONDITIONS
3.5.l Payment will be made in immediately available funds in US
dollars. In case of payment in any other free convertible
currency, the exchange rate valid on the day of actual money
transfer will be applied for conversion.
3.5.2 Payment will be made by the Buyer to the Seller within thirty
(30) days from the date of receipt of invoice, such that the
value date of the credit to the accounts listed below falls
within this thirty (30)-day period:
(i) For wire transfer, in favor of Airbus North America
Customer Services:
[ * ]
(ii) For direct deposit (lockbox), in favor of Airbus North
America Customer Services:
(iii) Airbus North America Customer Services
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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PO Box 8500
Lock Box No. 4555
Philadelphia, PA 19178-4555
[ * ]
3.5.3 All payments due the Seller hereunder will be made in full
without set-off, counterclaim, deduction or withholding of any
kind. Consequently, the Buyer will ensure that the sums received
by the Seller under this Letter Agreement will be equal to the
full amounts expressed to be due to the Seller hereunder, without
deduction or withholding on account of and free from any and all
taxes, levies, imposts, dues or charges of whatever nature except
that if the Buyer is compelled by law to make any such deduction
or withholding the Buyer will pay such additional amounts as may
be necessary in order that the net amount received by the Seller
after such deduction or withholding will equal the amounts which
would have been received in the absence of such deduction or
withholding.
3.5.4 If any payment due the Seller for which the invoice has been
received by the Buyer in a timely manner, and is not the subject
of a good-faith dispute between the parties, is not received by
the Seller on the date or dates agreed on between the Buyer and
the Seller, without prejudice to the Seller's other rights under
this Letter Agreement or at law, the Seller will be entitled to
interest for late payment calculated on the amount due from and
including the due date of payment up to and including the date
when the payment is received by the Seller at a rate equal to the
London Interbank Offered Rate (LIBOR) for twelve (12) months
deposits in US dollars (as published in the Financial Times on
the due date) [ * ] (part year to be pro-rated).
3.6 Left intentionally blank.
3.7 Title
Title to any Materiel purchased under this Letter Agreement
remains with the Seller until full payment of the invoices and
any interest thereon has been received by the Seller.
The Buyer will undertake that Materiel, title to which has not
passed to the Buyer, will be kept free from any debenture or
mortgage or any similar charge or claim in favor of any third
party.
3.8 Buy-back
3.8.1 Buy-Back of Obsolete Materiel
The Seller agrees to buy back unused Seller Parts or Components
which may become obsolete up to [ * ] years after Delivery of the
first Aircraft to the Buyer as a result of
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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mandatory modifications required by the Buyer's or the Seller's
Aviation Authorities, subject to the following:
(i) The Seller Parts involved will be those that the Buyer
is directed by the Seller to scrap or dispose of and
which cannot be reworked or repaired to satisfy the
revised standard.
(ii) The Seller will credit to the Buyer an amount equal to
the purchase price paid by the Buyer for any such
obsolete parts, provided that the Seller's liability in
this respect does not extend to quantities in excess of
the Initial Provisioning recommendation.
(iii) The Seller will use its reasonable efforts to obtain
for the Buyer the same protection from Suppliers.
3.8.2 Buy-Back of Surplus Materiel
3.8.2.1 The Seller agrees that at any time up to [ * ] years after
Delivery of the first Aircraft to the Buyer, the Buyer will have
the right to return to the Seller, at a credit of one hundred
percent (100 %) of the original purchase price paid by the Buyer,
unused and undamaged Materiel (unless the damage was not visually
noticeable at the time of delivery to the Buyer) described in
Sub-condition 2.2.l (i) and at a credit of one hundred percent
(100 %) of the original Seller list price, unused and undamaged
Materiel described in Sub-condition 2.2.1 (ii) originally
purchased from the Seller under the terms hereof, provided that
(i) the selected protection level does not exceed ninety-six
percent (96 %) with a transit time of twenty (20) days, (ii) said
Materiel was recommended for the Buyer's purchase in the Seller's
Initial Provisioning recommendations to the Buyer and does not
exceed the provisioning quantities recommended by the Seller, and
is not shelf-life-limited, or does not contain any
shelf-life-limited components with less than [ * ] shelf life
remaining when returned to the Seller, and (iii) the Materiel is
returned with the Seller's original documentation (tag,
certificates).
3.8.2.2 If the Buyer elects to procure Materiel in excess of the Seller's
recommendation, the Buyer will notify the Seller thereof in
writing, with due reference to the present Condition. The
Seller's agreement in writing is necessary before any Materiel in
excess of the Seller's recommendation will be considered for
buy-back.
3.8.2.3 It is expressly understood and agreed that the rights granted to
the Buyer under this Sub-condition 3.8.2 will not apply to
Materiel which may become surplus to requirements due to
obsolescence at any time or for any reason other than those set
forth in Sub-condition 3.8.l above. Further, it is expressly
understood and agreed that all credits described in this
Sub-condition 3.8.2 will be provided by the Seller to the Buyer
exclusively by means of credit notes to be entered into the
Buyer's spares account with the Seller.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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3.8.3 All transportation costs for the return of obsolete Materiel
under this Sub-condition 3.8, including any insurance and customs
duties applicable or other related expenditures, will be borne by
the Buyer. [ * ]
3.8.4 The Seller's obligation to buy back surplus Materiel is
conditioned on the Buyer reasonably demonstrating that items
proposed for buy-back were in excess of the Buyer's requirements
after the initial purchase of such items.
3.8.5 The Seller will accept, as a reasonable demonstration of such
excess initial purchase by the Buyer, if the data submitted to
the Seller in compliance with the provisions of Sub-condition 3.9
indicate that the items proposed for buy-back are surplus to the
Buyer's requirements.
3.9 Inventory Usage Data
The Buyer undertakes to provide periodically to the Seller a
quantitative list of the parts used for maintenance and overhaul
of the Aircraft. The range and contents of this list will be
established according to SPEC 2000, Chapter 5, or as mutually
agreed between the Seller and the Buyer.
3.10 Re-Order for Unmodified Items
Notwithstanding that the Item may have been redesigned or
modified, for as long as the Aircraft is either in manufacture or
in operation, the Seller undertakes to accept Orders for, and to
supply to the Buyer, such unmodified or fully interchangeable
Seller Parts under conditions and at prices which shall not
exceed those which would have applied should the unmodified Item
have been in Seller's current supply at the time of the Buyer's
re-Order.
3.11 [ * ]
3.12 Bar-coding
The Seller shall comply with Spec2000, Chapter 9 for shipping
labels, Parts tags and Item permanent identification.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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4. TECHNICAL DATA AND DOCUMENTATION
4.1 General
This Condition covers the terms and conditions for the supply of
technical data and documents (hereinafter "Technical Data") to
support the Aircraft operation.
The Technical Data as outlined in this Agreement will be supplied
at no charge to the Buyer and will be in English, using the
aeronautical terminology in common use.
All Technical Data will be provided in digital format using
industry standards and as developed within the framework of the
"Customer Focus Groups". The retained standards will be
communicated to the Buyer no later than three (3) years before
entry into service of the Aircraft.
The following data will be available in ATA Spec 2200-compliant
SGML format, including graphics belonging to SGML documents in
ATA-compliant CGM format:
- Aircraft Maintenance Data,
- Illustrated Parts Data,
- Trouble-Shooting Data,
- Aircraft Wiring Data,
- Aircraft Wiring List Data,
- Aircraft Schematics Data,
- Electrical Standard Practices Data,
- Structural Repair Data,
- Service Bulletin Data,
- Flight Crew Operating Data,
- Master Minimum Equipment List Data
- Component Maintenance Data (in the form of CMMM and
CMMV in accordance with GCP2000).
- Abnormal and Emergency Checklist Data,
- Component Reliability Data.
[ * ]
4.2 Scope
Range, form, type, format, quantity and delivery schedule of Air
Transport Association (ATA) and non-ATA Technical Data to be
provided under this Agreement will be pursuant to Exhibit F.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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The Buyer will not be otherwise compensated for any Technical
Data that is not used or is only used in part.
4.3 Aircraft Identification for Technical Data
4.3.1 For the customized Technical Data, the Buyer agrees to the
allocation of fleet serial numbers ("Fleet Serial Numbers") in
the form of a block of numbers selected in the range from 001 to
999.
4.3.2 The sequence will not be interrupted unless two (2) different
Propulsion Systems or two (2) different aircraft models are
selected.
4.3.3 The Buyer will indicate to the Seller the Fleet Serial Number
allocated to the Aircraft Manufacturer's Serial Number two (2)
years before the first Aircraft Delivery. The allocation of Fleet
Serial Numbers to Manufacturer's Serial Numbers will not
constitute any proprietary, insurable or other interest of the
Buyer whatsoever in any Aircraft prior to its Delivery.
The following customized Technical Data will be provided to the
Buyer:
- Aircraft Maintenance Data,
- Illustrated Parts Data,
- Trouble-Shooting Data,
- Aircraft Wiring Data,
- Aircraft Schematics Data,
- Structural Repair Data,
- Weight and Balance Data,
- [ * ]
A Freighter version of the Structural Repair Data will be
provided.
Component Maintenance Data, applicable to the Buyer's fleet, will
be provided in the form of CMMM and CMMV in accordance with
GCP2000. For component maintenance, Propulsion Systems data will
be provided by the Propulsion Systems manufacturer, and BFE data
will be supplied by the Buyer in accordance with Sub-condition
4.4.2 below.
[ * ]
4.4 Supplier Equipment
4.4.1 Information relating to Supplier equipment that is installed on
the Aircraft by the Seller will be introduced into the customized
Technical Data to the extent necessary
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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for the explanation of the systems concerned [ * ] to the Buyer
for the Technical Data initial issue.
4.4.2 The Buyer will supply the data related to Buyer Furnished
Equipment to the Seller at least six (6) months before the
scheduled delivery of the customized Technical Data. The Buyer
Furnished Equipment data supplied by the Buyer to the Seller will
be in English.
4.4.3 The Seller will introduce Buyer Furnished Equipment data, for
equipment that is installed on the Aircraft by the Seller, into
the customized Technical Data [ * ] to the Buyer for the
Technical Data basic issue. The transportation costs related to
Buyer Furnished Equipment data shipment will be the Buyer's
responsibility.
4.5 Delivery
4.5.1 Technical Data are generally delivered on-line.
4.5.2.1 If Technical Data are delivered in another format, the Technical
Data and corresponding revisions to be supplied by the Seller
will be sent to one address for engineering and one address for
flight operations, and the Buyer will notify the Seller of such
addresses.
4.5.2.2 In such case, the shipment will be Free Carrier (FCA) Toulouse,
France and/or Free Carrier (FCA) Hamburg, Federal Republic of
Germany
4.5.3 The Seller and the Buyer will agree on a delivery schedule for
the Technical Data, such schedule being designed to ensure a
smooth entry into service of the Aircraft. The Buyer agrees to
provide forty (40) days' notice when requesting a change to the
delivery schedule.
[ * ]
4.5.4 It will be the responsibility of the Buyer to coordinate and
satisfy local Aviation Authorities' needs for Technical Data. The
Seller will, however, provide, on the Buyer's request, on-line
access and, [ * ] such Technical Data as may be required from
time to time, by the FAA or any other Airworthiness Authority, to
support the operation of the Buyer's Aircraft.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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4.6 Revision Service
Unless otherwise specifically stated, revision service will be
provided [ * ] based upon a mutually agreed upon revision cycle,
but which, in any case, [ * ]
4.7 Service Bulletin (SB) Incorporation
During the period of revision service, upon the Buyer's request
for incorporation, Service Bulletin information will be
incorporated, within the next scheduled revision, provided that
the intention to incorporate a Service Bulletin is notified by
the Buyer ninety (90) days prior to this revision. The Seller
will use best reasonable efforts to achieve a thirty (30)-day
notification period. The split effectivity for the corresponding
Service Bulletin will remain in the Technical Data until
notification from the Buyer that incorporation has been completed
on all the Aircraft. The above provision is applicable for
Technical Data relating to maintenance. For operational Technical
Data, only the pre- or post-Service Bulletin status will be
shown.
4.8 Performance Engineer's Programs
The Seller will provide to the Buyer a full Performance
Engineer's Programs (PEP) package, including Noise Level
Calculation Program (NLCP), under license conditions defined in
Appendix 1 to Exhibit F hereto. Revision Service will be provided
[ * ]
4.9 Airbus On-Line Services (AOLS)
4.9.1 Technical Data are provided on-line under license conditions
defined in Appendix 2 to Exhibit F hereto.
4.9.2 Access to the Airbus On-Line Services will be granted [ * ] to
the Buyer allowing the Buyer access to the Basic and all Optional
services for the Aircraft as soon as such services become
available.
4.10 Future Developments
The Seller will continuously monitor technological developments
and apply them to data production and methods of transmission
where beneficial and economical. The Buyer and the Seller will
mutually agree to implement any new development proposed by the
Seller.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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4.11 Technical Data Familiarization
Technical Data familiarization training will be provided in
accordance with Clause 16 of the Agreement.
4.12 Customer Originated Changes
4.12.1 Buyer-originated data documented in the Buyer's own airline
engineering bulletin may be introduced as Customer-Originated
Changes (COC) into the following Seller-customized Technical
Data:
- Aircraft Maintenance Data,
- Illustrated Parts Data,
- Trouble-Shooting Data,
- Aircraft Wiring Data,
- Aircraft Schematics Data,
- Flight Crew Operation Data
- Quick-Reference "Handbook" Data.
4.12.2 COC data will be established by the Buyer according to the
Customer Guide for Customer Originated Changes, as issued by the
Seller. The Buyer will ensure that any such data is in compliance
with its local Aviation Authorities' requirements.
COC data will generally be delivered on-line by the Buyer. It
will be incorporated by the Seller into all affected customized
Technical Data unless the Buyer specifies in writing the
Technical Data of its choice into which the COC data will be
incorporated.
COC data will be incorporated into the Technical Data at the next
revision following receipt of the COC data, when the Seller
receives the applicable COC data at least [ * ] before the next
revision [ * ]
4.12.3 The Buyer hereby acknowledges and accepts that the incorporation
of any COC into the Technical Data issued by the Seller will be
entirely at the Buyer's risk. Further, the Buyer acknowledges
full liability for the effects, including all related costs, that
any COC may have on any subsequent Service Bulletins and/or
modifications.
4.12.3.1 The Seller will not be required to check any COC data submitted
for incorporation. Accordingly, the Seller will be under no
liability whatsoever in respect of either the contents of any
COC, including any omissions or inaccuracies therein, or the
effect that the incorporation of such COC may have on the
Technical Data issued by the Seller.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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4.12.3.2 In the event of the Seller being required under any court order
or settlement to indemnify 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, the Buyer agrees to reimburse the Seller for all payments
or settlements made in respect of such injury, loss or damage
including any expenses incurred by the Seller in defending such
claims.
4.12.4 The incorporation of any COC as aforesaid will be performed under
the conditions specified in the Seller's then current Customer
Services Catalog.
4.13 Warranties
4.13.1 The Seller warrants that the Technical Data are prepared in
accordance with the state of art at the date of their conception.
Should any Technical Data prepared by the Seller contain any
non-conformity or defect, [ * ] at its option, correct or replace
such Technical Data. Notwithstanding the above, no warranties of
any kind are given for the COCs.
Notwithstanding the provisions of this Sub-condition 4.13.1,
[ * ]
4.13.2 [ * ]
4.14 Proprietary Rights
4.14.1 All proprietary rights, including, but not limited to, patent,
design and copyrights, relating to Technical Data, will remain
with the Seller.
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.
4.14.2 Whenever this Letter Agreement or the Agreement provides for
manufacturing by the Buyer, the consent given by the Seller will
not be construed as express or implicit approval, whatsoever,
either of the Buyer or of the manufactured products. The supply
of the Technical Data will not be construed as any right other
than those provided herein for the Buyer to design or manufacture
any Aircraft or part thereof or spare part.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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4.15 Confidentiality
4.15.1 The Technical Data and their contents 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, save as permitted therein or otherwise
pursuant to any government or legal requirement imposed upon the
Buyer.
4.15.2 [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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5. TECHNICAL SERVICES
5.1. Technical Assistance, Liaison and Reporting
5.1.1. [ * ]
5.1.2. Technical Advisory Assistance
The Seller shall maintain a service organization capable of
responding promptly to requests from the Buyer for technical
advisory assistance on the operation, maintenance, service,
repair and overhaul of an Item whether under warranty or not.
Such organization shall include suitably qualified, responsive
personnel capable of answering immediately a technical query and
performing on-site assistance as necessary. In particular, this
organization will include a technical AOG service.
Shop findings reports shall be dispatched with the returned
Items.
The Seller shall also provide to the Buyer a copy of the shop
findings reports and applicable field service reports, for all
Items returned to the Seller for repair, replacement or
correction clearly indicating if the removal was confirmed, not
confirmed or NFF.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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5.1.3. Technical Performance Reporting
If so requested by the Buyer, the Seller shall arrange data
retrieval on the technical performance/reliability of an Item and
provide technical statistics on a periodic basis.
5.2. Correction of In-Service Problems[ * ]
5.2.1. Corrective Actions
Should an Item for any reason develop an in-service problem, the
Seller, in co-operation with the Buyer, shall take fast and
efficient action to correct the problem, employing necessary
resources to provide the Buyer with a timely and acceptable
solution. The Seller shall endeavor to complete corrective
actions notwithstanding any pending commercial settlement. [ * ]
5.2.2. [ * ] Programs
[ * ]
In the event that an Item modified by the Seller as part of a
[ * ]
5.3 Seller Representatives and Duties
The Seller will provide, or cause to be provided [ * ] the
services described in this Sub-condition 5.3, at the Buyer's main
base and at other locations to be mutually agreed upon.
5.3.1 Customer Support Director
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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The Seller will assign the services of [ * ]
The Customer Support Director will act as the focal point within
the Seller's Customer Support for the Buyer with regard to all
support issues, including training and technical and materiel
support. The Customer Support Director will ensure that the
services provided to the Buyer are developed with the Buyer and
are adapted to the Buyer's needs. The Buyer and the Seller
recognize that the Customer Support Director will not be
dedicated exclusively to the Buyer, but the Seller will ensure
that the Customer Support Director's other responsibilities are
such as to allow good and proper and timely support to the Buyer.
The Customer Support Director will maintain a status report on
all support issues related to the Aircraft and post it on a web
page on the Buyer's intranet on a regular basis. The Buyer agrees
to provide the necessary space, access and instruction to the
Resident Customer Support Manager to allow this.
5.3.2 Customer Service Representatives
5.3.2.1 The Seller will also provide the services of a team of Seller
customer service representatives ("Seller Representatives")
acting in an advisory capacity. [ * ] This team will comprise the
following persons:
(i) A Resident Customer Support Representative at the
Buyer's main base starting prior to entry into service
of the Aircraft and continuing [ * ]
(ii) A mutually agreed-upon number of Seller's
Representatives at the Buyer's main base (or at
mutually agreed-to outstation locations of the Buyer)
[ * ]
(iii) Seller Representatives providing on-site technical
assistance (available to all aircraft), on a
non-exclusive basis, at selected A380 aircraft
destinations [ * ]
The Seller Representatives will provide advice on
trouble-shooting and will provide general technical support as
well as support at turn-around to minimize technically induced
delays. The Seller Representatives will have a prime duty to
support the Buyer, but on an occasional basis may help other
operators of Airbus aircraft on the Buyer's bases just as the
Buyer may obtain assistance from Seller service representatives
allocated to other operators of Airbus aircraft.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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For up to the [ * ] The Seller Representatives will assist the
Buyer's maintenance staff in the use and application of the
Aircraft's On-board Maintenance System (OMS).
[ * ]
5.3.2.2 The Seller will cause similar services to be provided by the
representatives of the Propulsion Systems manufacturer and by
representatives of the Suppliers when necessary and applicable.
5.3.2.3 The Seller will provide to the Buyer an annual written account of
the consumed months and any remaining balance of months. Such
account will be deemed approved by the Buyer unless the Seller
receives written objection from the Buyer within thirty (30) days
of receipt of such account.
5.3.2.4 Should the Buyer request additional services that exceed the
amounts set forth in this Sub-condition 5.3.2, the Seller may
provide additional services subject to the terms and conditions
agreed to by the Buyer and the Seller at the time of such
request.
5.3.3 The Buyer's Service
5.3.3.1 From the date of arrival of the first Seller Representative and
for the duration of the assignment, the Buyer [ * ] suitable
office space and facilities, including telephone, facsimile and
computer network connections for the sole use of the Seller
Representatives in, or conveniently near, the Buyer's maintenance
facilities. The Buyer will provide, or cause to be provided,
telecommunications facilities [ * ] to be invoiced on a monthly
basis.
5.3.3.2 In accordance with the Buyer's internal regulations, the Buyer
will provide, or cause to be provided [ * ] when said Seller's
Representatives are assigned away from the locations mentioned
above in Sub-condition 5.3.2.1 at the Buyer's request, commercial
transportation between the said locations and the place of
assignment.
5.3.3.3 The parties will give each other all necessary reasonable
assistance with general administrative functions specific to
their respective countries and procurement of the documents
necessary to live and work there.
5.3.4 Temporary Assignment and Withdrawal of Seller Representatives
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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The Buyer agrees that the Seller will have the right to transfer
or recall any Seller Representative(s), on a temporary or
permanent basis, as it sees fit, particularly if, in the Seller's
opinion, the conditions are dangerous to the Seller
Representatives' safety or health or prevent the fulfillment of
any contractual tasks. The Buyer will receive credit for the days
during which any Seller Representative is absent from the Buyer's
facility pursuant to this Sub-condition 5.3.
[ * ]
5.3.5 Representatives' Status
In providing the above technical service, the Seller's employees,
including the Seller Representative(s) 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.
5.4 Training and CBT Aids
In accordance with Clause 16 of the Purchase Agreement.
5.5. [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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5.6. [ * ]
5.7. [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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6 WARRANTIES AND GUARANTEES
The Seller represents and warrants that the Manufacturer has
provided to the Seller the following Seller Warranty at Aircraft
Delivery, Seller Warranty for Seller Parts, Supplier Warranties,
Service Life Policy, Maintenance Cost Protection Guarantee,
Component Reliability Guarantee and Direct Maintenance Cost
Guarantee, 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 Seller Warranty at Aircraft Delivery, Seller Warranty
for Seller Parts, Supplier Warranties, Service Life Policy,
Component Reliability Guarantee and Direct Maintenance Cost
Guarantee, 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 Letter 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
Letter Agreement.
QUOTE
6.1 SELLER WARRANTY AT AIRCRAFT DELIVERY
6.1.1 Nature of Warranty
Subject to the limitations and conditions as hereinafter
provided, and except as provided in Sub-condition 6.1.2, the
Seller warrants to the Buyer that each Aircraft and each
Warranted Part will be, at the time of Aircraft Delivery, 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 Letter Agreement, the term "Warranted
Part" will mean any Seller proprietary component, accessory or
part, which is installed on an Aircraft at Delivery and (a) which
is manufactured to the detail design specification of the Seller
or a subcontractor of the Seller (b) which bears a part number of
the Seller at the time of Delivery, and (c) which is not covered
by GCP 2000.
The Seller warrants that, at the time of Delivery of an Aircraft,
all Warranted Parts will have less than fifty (50) flight hours
and will never have been rejected by another aircraft operator,
manufacturer, distributor or maintenance or repair center.
6.1.2 Exceptions
The warranties set forth in Sub-condition 6.1.1 will not apply to
Buyer Furnished Equipment, nor to the Propulsion Systems, nor 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 Sub-condition 6.1
and be covered by the warranty set forth in
Sub-condition 6.1.1(ii), and
(ii) any defect inherent in the Seller's design of the
installation, in view of 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 Sub-condition 6.1 and be covered by the warranty
set forth in Sub-condition 6.1.1 (iii).
6.1.3 Warranty Periods
6.1.3.1 The warranties described in Conditions 6.1.1 and 6.1.2
hereinabove will be limited to those defects that become apparent
within [ * ] Delivery of the affected Aircraft (the "Warranty
Period").
6.1.3.2 [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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6.1.3.3 [ * ]
6.1.3.4 [ * ]
6.1.4 Limitations of Warranty
6.1.4.1 THE BUYER'S REMEDY AND THE SELLER'S OBLIGATION AND LIABILITY
UNDER SUB-CONDITIONS 6.1.1 AND 6.1.2 HEREINABOVE ARE LIMITED TO,
AT THE SELLER'S EXPENSE AND OPTION, THE REPAIR, REPLACEMENT OR
CORRECTION OF ANY DEFECTIVE WARRANTED PART. ALTERNATIVELY, THE
SELLER MAY, WITH THE BUYER'S APPROVAL, 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.
6.1.4.2 In the event that the Seller corrects a defect covered by
Sub-condition 6.1.1 (iii) that becomes apparent within the
applicable period set forth in Sub-condition 6.1.3 and the Seller
is obligated to correct such defect, the Seller will also, if so
requested by the Buyer in writing, [ * ] However, the Seller will
not be responsible, nor deemed to be in default, on account of
any delay in Delivery of any Aircraft under the Agreement or
otherwise, in respect of performance of this Letter 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 [ * ] or the
Buyer may elect to accept Delivery and the Seller will offer a
pre-approved warranty remedy at Delivery.
6.1.4.3 [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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6.l.5 Warranty Claim Requirements
The Buyer's remedy and the Seller's obligation and liability
under this Sub-condition 6.l, 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 proof, reasonably
satisfactory to the Seller, that the claimed defect is
due to a matter covered under the provisions of this
Sub-condition 6.1, and that such defect has not
resulted from any act or omission of the Buyer,
including but not limited to, any failure to operate
and maintain the affected Aircraft or part thereof in
accordance with the standards set forth in
Sub-condition 6.8 or from any act or omission of any
third party maintaining or operating the Aircraft,
(iii) the Buyer returns, as soon as practicable, the
Warranted Part claimed to be defective to the repair
facilities designated by the Seller, unless the Buyer
elects to repair a defective Warranted Part in
accordance with the provisions of Sub-condition 6.1.7,
(iv) the Seller receives a "Warranty Claim" complying with
the provisions of Sub-condition 6.1.6 below.
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6.1.6 Warranty Administration
The warranties set forth in Sub-condition 6.1 will be
administered as hereinafter provided:
(i) Claim Determination
Warranty Claim determination by the Seller will be
reasonably based on the claim details, reports from the
Seller's regional representative, historical data logs,
inspections, tests, findings during repair, defect
analysis and other suitable documents and information
as appropriate. The Seller will adjudicate each
Warranty Claim within thirty (30) days of receipt.
(ii) Removal and Transportation Costs
[ * ]
(iii) Return of an Aircraft
In the event that the Buyer desires to return an
Aircraft to the Seller for consideration of a Warranty
Claim, the Buyer will notify the Seller of its
intention 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 acceptable to the Seller. If the
Seller elects to inspect, such inspection team will be
dispatched as soon as practically possible, but
generally within twenty-four (24) hours after notice
from the Buyer. 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, unless such
return was at the direction, or for the convenience,
[ * ]
(iv) On-Aircraft Work by the Seller
[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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The Seller and the Buyer will agree on a schedule and
place for the work to be performed.
(v) Warranty Claim Substantiation
For each claim under this Sub-condition 6.1, the Buyer
will give notice (the "Warranty Notification") to the
Seller at the earliest practicable time, but in no
event later than ninety (90) days after discovering the
defect, that contains, as applicable, the data listed
below with respect to a part or Aircraft. The Buyer
will provide a Warranty Claim within one hundred eighty
(180) days after the completion of the required repair
or correction of the defect giving rise to such
Warranty Claim. The Seller will establish an internet
portal to allow electronic filing and tracking of the
Buyer's Warranty Notifications and Claims, which shall
contain the following:
(a) Description of defect and action taken, if any,
(b) Date of incident and/or of removal,
(c) Description of the defective part,
(d) Part number,
(e) Serial number (if applicable),
(f) Position on Aircraft, according to Catalog
Sequence Number (CSN) of the Illustrated Parts
Catalog, Component Maintenance Manual or
Structural Repair Manual (as such documents are to
be defined pursuant to Condition 4 and Exhibit F
hereto), if applicable,
(g) Time since last shop visit at the date of defect
appearance, if applicable,
(h) Manufacturer's serial number (MSN) of the Aircraft
and/or its registration number,
(i) Aircraft total flying hours or calendar times
and/or number of landings, as applicable, at the
date of defect appearance,
(j) Claim number,
(k) Date of claim, and
(l) Date of Delivery of an Aircraft or delivery of a
part to the Buyer.
Warranty Claims are to be filed electronically.
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(vi) Replacements
Replacements made pursuant to this Sub-condition 6.l
will be made within the lead time defined in the
Seller's 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 possession 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 Sub-condition 6.1, title to, and risk
of loss of, such component, accessory, equipment or
part will pass to the Buyer.
Notwithstanding the foregoing, the Seller agrees to
indemnify the Buyer for loss for any Aircraft,
component, accessory, equipment or part in the Seller's
possession under provisions of this Sub-condition
6.l.6. This indemnification will extend only to the
period from time of tender of possession to the Seller
until return of possession to the Buyer.
(vii) Rejection
The Seller will provide reasonable written
substantiation in case of rejection of a 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 a rejected
claim and (b) pay the costs of transportation to the
Airbus North America Customer Services Spares Center in
Ashburn, VA, insurance and any other costs associated
with the sending or return of any Warranted Part or any
other item, equipment, component or part for which the
Seller rejects the Buyer's Warranty Claim. The Seller
will contact the Buyer prior to the shipment or return
of such parts and will await and comply with the
Buyer's instructions as to choice of transportation
carrier before taking any further transportation
actions whatsoever. Such Buyer's instructions will be
communicated within thirty (30) days. The Seller will
reimburse the Buyer for any inspection charges and
transportation costs paid by the Buyer, under this
Sub-condition 6.1.6(vii) for a rejected part, should
such rejected part fail upon its return to service and
be subsequently accepted as a valid Warranty Claim.
(viii) Inspection
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The Seller will have the right to inspect the affected
Aircraft, and the Buyer will provide the necessary
records relating to a Warranty Claim thereto in the
event of any Warranty Claim under this Sub-condition
6.1.
6.1.7 In-house Warranty
(i) Authorization
The Buyer is hereby authorized to perform the repair of
Warranted Parts, subject to the terms of this
Sub-condition 6.1.7 ("In-house Warranty").
(ii) Conditions of Authorization
The Buyer will be entitled to the benefits under this
Sub-condition 6.1.7 for repair of Warranted Parts:
(a) only if adequate facilities and qualified
personnel are available to the Buyer,
(b) provided that repairs are to be performed in
accordance with the Seller's written instructions
as 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
as defined by the Buyer's engineering
specifications, Engineering Order or Engineering
Authorization, in accordance with the standards
set forth in Sub-condition 6.8.
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(iii) The Seller's Rights
The Seller will have the right to have any Warranted
Part, or any part removed therefrom, which is claimed
to be defective, returned to the Seller, as set forth
in Sub-condition 6.1.6(ii), if, in the judgment of the
Seller, the nature of the defect requires technical
investigation. [ * ]
The Seller will further have the right to have a
representative present during the disassembly,
inspection and testing of any Warranted Part claimed to
be defective, subject to its presence being practical
and not unduly delaying the repair.
(iv) In-house Warranty Claim Substantiation
Claims for In-house Warranty credit will be filed
within the time period set forth in, and will contain
the same information required in, Warranty Claims under
Sub-condition 6.1.6(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 applicable),
- total price of parts,
(c) detailed number of labor hours,
(d) In-house Warranty Labor Rate (defined below in
Sub-condition 6.1.7(v)(b)), and 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 in US dollars. [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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(vi) Limitation on Credit
The Buyer will in no event be credited for repair costs
(labor and material) for any Warranted Part to the
extent that such costs [ * ] (b) repair costs (labor
and material) that would have resulted if repairs had
been carried out at the Seller's facilities.
[ * ]
(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.
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 at least the duration of the Warranty
Period set forth in this Sub-condition 6.l.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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(viii) DISCLAIMER OF SELLER LIABILITY FOR THE BUYER'S REPAIR
THE SELLER WILL NOT BE LIABLE FOR ANY RIGHT, CLAIM OR
REMEDY, AND THE BUYER WILL INDEMNIFY THE SELLER AGAINST
THE CLAIMS OF ANY THIRD PARTIES FOR LOSSES DUE TO ANY
DEFECT, NON-CONFORMANCE OR PROBLEM OF ANY KIND ARISING
OUT OF, OR IN CONNECTION WITH, ANY IN-HOUSE REPAIR OF
WARRANTED PARTS OR ANY OTHER ACTIONS UNDERTAKEN BY THE
BUYER UNDER THIS SUB-CONDITION 6.l.7, INCLUDING, BUT
NOT LIMITED TO : LIABILITY IN CONTRACT OR IN TORT;
LIABILITY ARISING FROM THE BUYER'S ACTUAL OR IMPUTED
NEGLIGENCE, INTENTIONAL TORTS AND/OR STRICT LIABILITY;
AND/OR LIABILITY TO ANY THIRD PARTIES. NOTWITHSTANDING
THE FOREGOING, THIS INDEMNIFICATION WILL NOT EXTEND TO
THOSE REPAIRS THAT ARE PERFORMED IN ACCORDANCE WITH THE
MANUFACTURER'S REPAIR INSTRUCTIONS.
6.1.8 Warranty Transferability
The warranties provided for in this Sub-condition 6.l for any
Warranted Part will continue to accrue if the Warranted Part
enters into the possession of another airline as a result of a
pooling or leasing 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.
6.l.9 Warranty for Corrected, Replacement or Repaired Warranted Parts
Whenever any Warranted Part that contains a defect for which the
Seller is liable under Sub-condition 6.l has been corrected,
repaired or replaced pursuant to the terms of this Condition 6,
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 replaced
Warranted Part [ * ]. Furthermore, the repair of a Warranted Part
will be warranted for [ * ] from delivery to the Buyer of the
applicable repaired Warranted Part. In the event that a defect is
attributable to a negligent act or omission by the Buyer, a
Warranty Claim with respect to such defect will not be allowable,
notwithstanding any subsequent correction or repair, and will
immediately terminate the remaining warranties under this
Sub-condition 6.l in respect of the affected Warranted Part.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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6.2 Seller Warranty for Seller Parts
Subject to the limitations and conditions as hereinafter
provided, the Seller warrants to the Buyer that each Seller Part
as defined above in Condition 2.2.1(i) will, at the time of
delivery to the Buyer, be suitable for its intended use and be
free from defects:
(i) in material,
(ii) in workmanship, including, without limitation,
processes of manufacture,
(iii) arising from failure to conform to the applicable
specification for such part,
(iv) such as to hinder, restrict or annul the validity of
the Certificate of Airworthiness of the Aircraft on
which the Seller Part is fitted.
6.2.2 Warranty Period
6.2.2.1 The warranty period for defects in new Seller Parts is [ * ] to
the Buyer (the "Seller Parts Warranty Period").
6.2.2.2 The warranty period for used Seller Parts delivered by and/or
repaired, modified, overhauled or exchanged by the Seller is
[ * ] of such parts to the Buyer.
6.2.3 The Buyer's Remedy and The Seller's Obligation
The Buyer's remedy and Seller's obligation and liability under
this Sub-condition 6.2 are limited to the repair, replacement or
correction, at the Seller's expense and option, of any defective
Seller Part.
The Seller, at its option, may furnish a credit to the Buyer for
the future purchase of Seller Parts equal to the price at which
the Buyer is then entitled to acquire a replacement for the
defective Seller Part.
The provisions of Sub-conditions 6.1.5, 6.1.6 and 6.1.7 of the
Agreement will, as applicable, also apply to this Sub-condition
6.2.
6.3 Supplier Warranties
6.3.1 The Seller's Support
[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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6.3.2 The Supplier's Default
6.3.2.l In the event that any Supplier under any standard warranty or
indemnity against patent infringement obtained by the Seller
pursuant to Sub-condition 6.3.1 hereof defaults in the
performance of any material obligation under such warranty or
indemnity against patent infringement with respect to a Supplier
part, and the Buyer submits within a reasonable time to the
Seller reasonable proof that such default has occurred, then
Sub-condition 6.1 of this Agreement will apply to the extent it
would have applied had such Supplier Part been a Warranted Part
except that the shorter of (i) the Supplier's warranty period
indicated in the Supplier Product Support Agreements manual, and
(ii) the Warranty Period indicated in Sub-condition 6.l.3 of this
Agreement will apply.
6.3.2.2 In the event that any Supplier under any Supplier service life
policy obtained by the Seller pursuant to Sub-condition 6.3.1
hereof defaults in the performance of any material obligation
with respect thereto, and the Buyer submits within reasonable
time to the Seller reasonable proof that such default has
occurred, then Sub-condition 6.4 of this Agreement will apply to
the extent the same would have applied had such component,
equipment, accessory or part been listed in Exhibit D hereto.
6.3.2.3 At the Seller's request, the Buyer will assign to the Seller, and
the Seller will be subrogated to, all of the Buyer's rights
against the relevant Supplier, with respect to and arising by
reason of such default, and the Buyer will provide reasonable
assistance to enable the Seller to enforce the rights so
assigned.
6.4 Seller Service Life Policy
6.4.1 Scope and Definitions
In addition to the warranties set forth in Sub-condition 6.1
above, the Seller further agrees that should a Failure occur in
any SLP Item (as these terms are defined below), then, subject to
the general conditions and limitations set forth in this
Sub-condition 6.4.4, the provisions of this Sub-condition 6.4
will apply.
For the purposes of this Sub-condition 6.4, the following
definitions will apply:
(i) "SLP Item" means any of the Seller components,
equipment, accessories or parts listed in Exhibit D
hereto which are installed on an Aircraft at any time
during the period of effectiveness of the Service Life
Policy as defined below in Sub-condition 6.4.2. During
the development period of the Aircraft, the Buyer and
Seller will further review and complete this list of
SLP Items, as applicable, to address the Aircraft's
unique design.
(ii) "Failure" means any breakage of, or defect in, an Item
that materially impairs the utility or safety of the
Item that has occurred, or can reasonably be expected
to occur, on a repetitive or fleetwide basis.
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6.4.2 Periods and the Seller's Undertaking
Subject to the general conditions and limitations set forth in
Sub-condition 6.4.4 below, the Seller agrees that if a Failure
occurs in an SLP Item before the Aircraft in which such SLP Item
is installed has completed [ * ] after the Delivery of the
applicable Aircraft to the Buyer, whichever occurs first, the
Seller will, at its own discretion, as promptly as practicable
and for a price that reflects the Seller's financial
participation as hereinafter provided, either:
6.4.2.1 [ * ]
6.4.2.2 [ * ]
6.4.2.3 [ * ] to incorporate SLP-related modifications in production
Aircraft [ * ]
6.4.3 The Seller's Participation in the Cost
Any part or SLP Item that the Seller is required to furnish to
the Buyer under this Service Life Policy in connection with the
correction or replacement of an SLP Item will be furnished to the
Buyer [ * ]
6.4.4 General Conditions and Limitations
6.4.4.l Notwithstanding the Seller's cost participation mentioned in
Sub-condition 6.4.3, during the Warranty Period applicable to an
SLP Item under Sub-condition 6.1.3 the level of Seller's cost
participation will be [ * ]
The Buyer's remedy and the Seller's obligation and liability
under this Service Life Policy are subject to compliance by the
Buyer with the following conditions precedent:
(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
covered by this Service Life Policy and, if so, to
define the portion of the cost to be borne by the
Seller in accordance with Sub-condition 6.4.3 above.
(ii) The Buyer will keep the Seller informed of any
significant incidents relating to an Aircraft,
howsoever occurring or recorded.
(iii) The provisions of Sub-condition 6.8 will have been
complied with.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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(iv) In the case of any breakage or defect, the Buyer will
report the same in writing to the Seller within one
hundred twenty (120) days after any breakage or defect
in an Item becomes apparent, whether or not said
breakage or defect can reasonably be expected to occur
in any other Aircraft, and the Buyer will inform the
Seller in sufficient detail about the breakage or
defect to enable the Seller to determine whether said
breakage or defect is subject to this Service Life
Policy.
6.4.4.3 Except as otherwise provided in this Sub-condition 6.4, any claim
under this Service Life Policy will be administered as provided
in, and will be subject to the terms and conditions of,
Sub-condition 6.l.6.
6.4.4.4 In the event that the Seller has issued a modification applicable
to an Aircraft, the purpose of which is to avoid a Failure, the
Seller may elect to supply the necessary modification kit [ * ]
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 Sub-condition 6.4
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.
6.4.4.5 THIS SERVICE LIFE POLICY IS NEITHER A WARRANTY, PERFORMANCE
GUARANTEE NOR AN AGREEMENT TO MODIFY ANY AIRCRAFT OR AIRFRAME
COMPONENTS TO CONFORM TO NEW DEVELOPMENTS OCCURRING IN THE STATE
OF AIRFRAME DESIGN AND MANUFACTURING ART. THE SELLER'S OBLIGATION
UNDER THIS SUB-CONDITION 6.4 IS TO MAKE ONLY THOSE CORRECTIONS TO
THE ITEMS OR FURNISH REPLACEMENTS THEREFOR AS PROVIDED IN THIS
SUB-CONDITION 6.4. THE BUYER'S SOLE REMEDY AND RELIEF FOR THE
NON-PERFORMANCE 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 NON-PERFORMANCE IS RELATED, LESS THE
AMOUNT THAT THE BUYER OTHERWISE WOULD HAVE BEEN REQUIRED TO PAY
UNDER THIS SUB-CONDITION 6.4 IN RESPECT OF SUCH CORRECTED OR
REPLACEMENT ITEM. WITHOUT LIMITING THE EXCLUSIVITY OF WARRANTIES
AND GENERAL LIMITATIONS OF LIABILITY PROVISIONS SET FORTH IN
SUB-CONDITIONS 6.10 AND 6.11, 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 WITH RESPECT TO SUCH NON-PERFORMANCE.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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6.4.5 Transferability
The Buyer's rights under this Sub-condition 6.4 will not be
assigned, sold, leased, transferred or otherwise alienated by
operation of law or otherwise, without the Seller's prior written
consent.
Any unauthorized assignment, sale, lease, 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.
6.5 [Intentionally Deleted]
6.6 [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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6.7. [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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6.8. Good Airline Operation - Normal Wear and Tear
6.8.1 Good Airline Operation
The Buyer's rights under this Condition 6 are subject to the
Aircraft and each Item being stored, maintained, overhauled,
repaired and operated in accordance with good commercial airline
practice, all technical documentation and any other instructions
issued by the Seller and all applicable rules, regulations and
directives of the relevant Aviation Authorities. The Seller's
liability under this Condition 6 shall not extend to:
(i) any Item which has been repaired, altered or modified
after delivery except by the Seller or in a manner
approved by the Supplier;
(ii) any Item which has been operated in a damaged state;
(iii) any Item from which the trade mark, name, part or
serial number or any other identification marks have
been removed;
unless, in any such case (except in the case of (iii) above), the
Buyer submits reasonable evidence to the Seller that the fault
did not arise from, or was not contributed to, by any one (1) or
more of the said causes.
6.8.2 Normal Wear and Tear
The Seller's liability under this Condition 6 shall not extend to
normal Wear and Tear as defined by the Component Specification.
6.9 Limitations
All durations quoted in this Condition 6 are subject to the
limitation of Sub-conditions 2.1 and 14.
6.10 EXCLUSIVITY OF WARRANTIES
THIS CONDITION 6 (INCLUDING ITS SUB-PROVISIONS) SETS FORTH THE
EXCLUSIVE WARRANTIES, EXCLUSIVE LIABILITIES AND EXCLUSIVE
OBLIGATIONS OF THE SELLER, AND THE EXCLUSIVE REMEDIES AVAILABLE
TO THE BUYER, WHETHER UNDER THIS LETTER AGREEMENT OR OTHERWISE,
ARISING FROM ANY DEFECT OR NON-CONFORMITY OR PROBLEM OF ANY KIND
IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART OR SERVICE
DELIVERED UNDER THIS AGREEMENT.
THE BUYER RECOGNIZES THAT THE RIGHTS, WARRANTIES AND REMEDIES IN
THIS CONDITION 6 ARE ADEQUATE AND SUFFICIENT TO
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PROTECT THE BUYER FROM ANY DEFECT OR NON,CONFORMITY OR PROBLEM OF
ANY KIND IN THE GOODS AND SERVICES SUPPLIED UNDER THE AGREEMENT
OR THIS LETTER AGREEMENT. THE BUYER HEREBY WAIVES, RELEASES AND
RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS, GUARANTEES AND
LIABILITIES OF THE SELLER AND ALL OTHER RIGHTS, CLAIMS AND
REMEDIES OF THE BUYER AGAINST THE SELLER, WHETHER EXPRESS OR
IMPLIED BY CONTRACT, TORT OR STATUTORY LAW OR OTHERWISE, WITH
RESPECT TO ANY NON,CONFORMITY OR DEFECT OR PROBLEM OF ANY KIND IN
ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART OR SERVICE
DELIVERED UNDER THE AGREEMENT OR THIS LETTER AGREEMENT,
INCLUDING, BUT NOT LIMITED TO:
(1) ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR
ANY GENERAL OR PARTICULAR PURPOSE;
(2) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM THE COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(3) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(4) ANY RIGHT, CLAIM OR REMEDY FOR TORT, INCLUDING ACTIONS FOR
NEGLIGENCE, RECKLESSNESS, INTENTIONAL TORTS, IMPLIED WARRANTY IN
TORT AND/OR STRICT LIABILITY;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM
COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL STATUTE;
(6) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR
STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR LOCAL
STATUTE OR AGENCY;
(7) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED FOR:
(a) LOSS OF USE, OR REPLACEMENT, OF ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THIS
AGREEMENT;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THIS
AGREEMENT;
(c) LOSS OF PROFITS AND/OR REVENUES;
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.
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THE WARRANTIES AND SERVICE LIFE POLICY PROVIDED BY THIS LETTER
AGREEMENT WILL NOT BE EXTENDED, ALTERED OR VARIED, EXCEPT BY A
WRITTEN INSTRUMENT SIGNED BY THE SELLER AND THE BUYER. IN THE
EVENT THAT ANY PROVISION OF THIS CONDITION 6 SHOULD FOR ANY
REASON BE HELD UNLAWFUL, OR OTHERWISE UNENFORCEABLE, THE
REMAINDER OF THIS CONDITION 6 WILL REMAIN IN FULL FORCE AND
EFFECT.
6.11 Duplicate Remedies
The remedies provided to the Buyer under this Condition 6 as to
any 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
Condition 6 for any such particular defect for which remedies are
provided under this Condition 6; provided, however, that the
Buyer will not be entitled to elect a remedy under one part of
this Condition 6 that constitutes a duplication of any remedy
elected by it under any other part hereof or of the Agreement for
the same defect. The Buyer's rights and remedies herein for the
non-performance 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
non-performance covered by this Condition 6, and the Buyer will
not have any right to require specific performance by the Seller.
UNQUOTE
In consideration of the assignment and subrogation by the Seller
under this Condition 6 in favor of the Buyer in respect of the
Seller's rights against and obligations to the Manufacturer under
the provisions quoted above, the Buyer hereby accepts such
assignment and subrogation and agrees to be bound by all of the
terms, conditions and limitations therein contained, specifically
including, without limitation, the Exclusivity of Warranties and
General Limitations of Liability provisions and Duplicate
Remedies provisions.
THIS CONDITION 6 (INCLUDING ITS SUB-PROVISIONS) SETS FORTH THE
EXCLUSIVE WARRANTIES, EXCLUSIVE LIABILITIES AND EXCLUSIVE
OBLIGATIONS OF THE SELLER AND THE EXCLUSIVE REMEDIES AVAILABLE TO
THE BUYER, WHETHER UNDER THIS LETTER AGREEMENT OR THE AGREEMENT
OR OTHERWISE, ARISING FROM ANY DEFECT OR NON-CONFORMITY OR
PROBLEM OF ANY KIND IN ANY AIRCRAFT, COMPONENT, EQUIPMENT,
ACCESSORY, PART OR SERVICE DELIVERED UNDER THIS LETTER AGREEMENT
OR THE AGREEMENT.
THE BUYER RECOGNIZES THAT THE RIGHTS, WARRANTIES AND REMEDIES IN
THIS CONDITION 6 ARE ADEQUATE AND SUFFICIENT TO
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PROTECT THE BUYER FROM ANY DEFECT OR NON-CONFORMITY OR PROBLEM OF
ANY KIND IN THE GOODS AND SERVICES SUPPLIED UNDER THIS LETTER
AGREEMENT OR THE AGREEMENT. THE BUYER HEREBY WAIVES, RELEASES AND
RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS, GUARANTEES AND
LIABILITIES OF THE SELLER AND ALL OTHER RIGHTS, CLAIMS AND
REMEDIES OF THE BUYER AGAINST THE SELLER, WHETHER EXPRESS OR
IMPLIED BY CONTRACT, TORT OR STATUTORY LAW OR OTHERWISE, WITH
RESPECT TO ANY NON-CONFORMITY OR DEFECT OR PROBLEM OF ANY KIND IN
ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART OR SERVICE
DELIVERED UNDER THE AGREEMENT OR THIS LETTER AGREEMENT,
INCLUDING, BUT NOT LIMITED TO:
(1) ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR
ANY GENERAL OR PARTICULAR PURPOSE;
(2) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM THE COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(3) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(4) ANY RIGHT, CLAIM OR REMEDY FOR TORT, INCLUDING ACTIONS FOR
NEGLIGENCE, RECKLESSNESS, INTENTIONAL TORTS, IMPLIED WARRANTY IN
TORT AND/OR STRICT LIABILITY;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM
COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL STATUTE;
(6) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR
STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR LOCAL
STATUTE OR AGENCY;
(7) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED FOR:
(a) LOSS OF USE, OR REPLACEMENT, OF ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THIS
AGREEMENT;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THIS
AGREEMENT;
(c) LOSS OF PROFITS AND/OR REVENUES;
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.
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THE WARRANTIES AND SERVICE LIFE POLICY PROVIDED BY THIS LETTER
AGREEMENT WILL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A
WRITTEN INSTRUMENT SIGNED BY THE SELLER AND THE BUYER IN THE
EVENT THAT ANY PROVISION OF THIS CONDITION 6 SHOULD FOR ANY
REASON BE HELD UNLAWFUL, OR OTHERWISE UNENFORCEABLE, THE
REMAINDER OF THIS CONDITION 6 WILL REMAIN IN FULL FORCE AND
EFFECT.
The remedies provided to the Buyer under this Condition 6 as to
any 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
Condition 6 for any such particular defect for which remedies are
provided under this Condition 6; provided, however, that the
Buyer will not be entitled to elect a remedy under one part of
this Condition 6 that constitutes a duplication of any remedy
elected by it under any other part hereof or of the Agreement for
the same defect. The Buyer's rights and remedies herein for the
non-performance 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
non-performance covered by this Condition 6, and the Buyer will
not have any right to require specific performance by the Seller.
6.12 NEGOTIATED AGREEMENT
The Buyer and the Seller specifically recognizes that:
(i) the Agreement, and in particular this Condition 6 of
this Letter Agreement, has been the subject of
discussion and negotiation and is fully understood by
the Buyer;
(ii) the price of the Aircraft, and the other mutual
agreements of the Buyer set forth in the Agreement,
were arrived at in consideration of, inter alia, the
provisions of this Condition 6, specifically including
the Exclusivity of Warranties set forth in
Sub-condition 6.10
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7 INTERFACE COMMITMENT
7.1 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
(1) or more components of the Aircraft (an "Interface Problem"),
the Seller will, if requested by the Buyer, and without
additional charge to the Buyer, 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. 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. The Seller will use reasonable efforts
to complete such investigation within ninety (90) days and, in
any event, will provide an interim status report.
7.2 The Seller's Responsibility
If the Seller determines that the Interface Problem is primarily
attributable to the design of a Warranted Part, the Seller will,
if requested by the Buyer, replace, repair or correct the design
of such Warranted Part, pursuant to the terms and conditions of
Sub-condition 6.l.
7.3 The Supplier's Responsibility
If the Seller determines that the Interface Problem is primarily
attributable to the design of any Supplier Part, the Seller will,
if requested by the Buyer, reasonably assist the Buyer in
processing any warranty claim the Buyer may have against the
manufacturer of such Supplier Part. In the event that the
Supplier fails to take action pursuant to the Seller's
recommendation as to the necessary corrective action within a
reasonable time, the Seller agrees to correct, repair or replace
such Supplier component in accordance with and subject to the
terms and conditions of Sub-condition 6.3.2.1 of this Letter
Agreement.
7.4 Joint Responsibility
If the Seller determines 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
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advise the Buyer of any corrective action proposed by the Seller
and any such Supplier and provide information on any impact this
action has on the Aircraft such as weight, loadability and
performance. Such proposal will be consistent with any
then-existing obligations of the Seller hereunder and of any such
Supplier to the Buyer in accordance with GCP 2000. 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. The Seller will, in this case, and at the
request of the Buyer, coordinate and process the Buyer's warranty
claim(s) for the Warranted Parts and Supplier Parts.
7.5 General
7.5.l All requests under this Condition 7 will be directed both to the
Seller and the affected Suppliers. The Seller will, at the
request of the Buyer, coordinate and manage the corrective
action(s) with the Suppliers and will act as the focal point for
the Buyer.
7.5.2 Except as specifically set forth in this Condition 7, this
Condition 7 will not be deemed to impose on the Seller any
obligations not expressly set forth elsewhere in this Agreement.
All reports, recommendations, data and other documents furnished
by the Seller to the Buyer pursuant to this Condition 7 will be
deemed to be delivered under this Letter Agreement and will be
subject to the terms, covenants and conditions set forth in these
Conditions.
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8 [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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9. [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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10. SUBCONTRACTING
The Seller may subcontract all or part of its obligations under
these Conditions to the Seller's designated and authorized third
parties (Affiliate, agency, repair station, stockist,
subcontractor, Supplier and co-operative partner); the latter
shall be deemed to act on behalf of the Seller, and the Seller
shall ensure that they are aware of, and comply wit,h these
Conditions. The Seller shall not be relieved from its obligations
and liabilities and shall substitute for such third parties in
the event they fail to perform in accordance with these
Conditions within the scope of their responsibility. In the
latter circumstances, the Seller shall bear any damages and/or
additional costs incurred by the Buyer.
Such subcontract shall be undertaken only when the Seller can
ensure that all legal requirements which may be imposed by the
Aviation Authority are complied with.
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11. EXCUSABLE DELAYS
Neither party shall be responsible, or be deemed to be in
default, on account of an Excusable Delay (as defined in Clause
10 of the Agreement).
Either party shall as soon as practicable after becoming aware of
any such excusable delay, notify the other party of such delay
and of the probable duration and shall, as soon as practicable
after the removal of the cause of such delay, resume its
performance under these Conditions, unless otherwise agreed upon
between both parties. The Buyer shall have the right to cancel an
Order if the Excusable Delay exceeds an operationally and/or
economically acceptable period of time.
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12. SELLER PARTS LEASING
12.1 General
The terms and conditions of this Condition 12 will apply for the
leasing of Seller Parts listed in Exhibit E hereto, hereinafter
"Leased Parts" or a "Leased Part," and will form a part of each
lease of Seller Parts by the Buyer from the Seller.
12.l.1 The terms and conditions of this Condition 12 will prevail over
all other terms and conditions appearing on any order form or
other document pertaining to Leased Parts. The Seller's current
proprietary parts Repair Guide will be provided to the Buyer and
will be used, along with this Letter Agreement, as the basis for
Seller Parts lease transactions between the Buyer and the Seller.
However, in case of discrepancy, this Letter Agreement will
prevail.
12.1.2 For the purposes of this Condition 12, the term "Lessor" refers
to the Seller and the term "Lessee" refers to the Buyer.
12.l.3 [INTENTIONALLY LEFT BLANK]
12.2 Leasing Procedure
On the Lessee's request by telephone (to be confirmed promptly in
writing), telefax, cable, SITA, letter or other written
instrument, the Lessor will lease such Leased Parts, which will
be made available in accordance with Sub-condition 3.2.2.3 for
the purpose of being substituted for a part removed from an
Aircraft for repair or overhaul. Each lease of Leased Parts will
be evidenced by a lease document (hereinafter "Lease") issued by
the Lessor to the Lessee not later than seven (7) days after
delivery of the Leased Part.
12.3 Lease Period
12.3.l The period of the Lease (the "Lease Period") will begin on the
day the Leased Part is delivered [ * ] and end on either the day
the Leased Part is returned (POD) at the Lessor or at any address
indicated by the Lessor or the day when title to the Leased Part
passes to the Lessee.
12.3.2 If the Lessee does not return the Leased Part to the Lessor
within [ * ], then the Lessor, by giving prompt written notice to
the Lessee, may deem such non-return an election by the Lessee to
purchase the Leased Part unless the reason for the long lease is
due to the Seller's failure to repair the removed unit. On
receipt of such notice, the Lessee will pay the Lessor all
amounts due under Sub-conditions 12.4 and 12.8 for the Leased
Part for the Lease Period of [ * ] plus the current sales price
of the Leased Part
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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in effect when Lease is converted to a document of sale. Title to
such Leased Part will pass to the Lessee in accordance with
sub-condition 12.6.
12.3.3 The minimum Lease Period is seven (7) days. If the shipment of a
Leased Part has been arranged and the Lessee cancels the order
for such Leased Part, the minimum chargeable period of seven (7)
days will apply.
12.4 LEASE CHARGES AND TAXES
During the Lease Period, the Lessee will pay the Lessor the
following amounts:
(i) a daily rental charge for the Lease Term in respect of
each Leased Part equal to one-three-hundred-sixty-fifth
(l/365) of the Catalog Price of such Leased Part, as
set forth in the Seller's Spare Parts Price List in
effect on the date of commencement of the Lease Term,
(ii) any reasonable additional costs, which may be incurred
by the Lessor as a direct result of such Lease, such as
inspection, test, repair, overhaul and repackaging
costs as required, to place the Leased Part in
satisfactory condition for lease to a subsequent Buyer,
(iii) all transportation and insurance charges, and
(iv) any taxes, charges or customs duties imposed upon the
Lessor or its property as a result of the lease, sale,
delivery, storage or transfer of any Leased Part
(excluding the net gross income of the Lessor) (the
"Lease Charges").
All payments due hereunder will be made in accordance with
Sub-condition 3.5.
12.5 Risk of Loss, Maintenance, Storing and Repair of the Leased Part
(i) The Lessee will be liable for maintaining and storing
the Leased Part in accordance with all applicable rules
of the relevant Aviation Authorities and the Lessee's
maintenance and storage program.
(ii) Except for normal wear and tear, each Leased Part will
be returned to the Lessor in the same condition as when
delivered to the Lessee.
(iii) The Leased Part will be repaired solely at repair
stations approved by the Lessor. If during the Lease
Period any inspection, maintenance, rework and/or
repair is carried out to maintain the Leased Part
serviceable, in accordance with the standards of the
Lessor, the Lessee will provide details and
documentation about the scope of the work performed,
including respective inspection, work and test reports.
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(iv) All documentation will include, but not be limited to,
evidence of incidents, such as hard landings,
abnormalities of operation and corrective action taken
by the Lessee as a result of such incidents.
(v) The Leased Part must not be loaned or sub-leased to a
third party.
(vi) Risk of loss of, or damage to, each Leased Part will
remain with the Lessee until such Leased Part is
redelivered to the Lessor at the return location
specified in the applicable Lease. If a Leased Part is
lost, damaged beyond economical repair or damaged and
unrepairable, the Lessee will be deemed to have
exercised its option to purchase said Leased Part in
accordance with Sub-condition 12.8 as of the date of
such loss or damage.
12.6 Title
Title to each Leased Part will remain with the Lessor at all
times unless the Lessee exercises its option to purchase in
accordance with Sub-condition 12.3.2 or 12.8, in which case title
will pass to the Lessee on receipt by the Lessor of the payment
for the purchased Leased Part.
12.7 Return of Leased Part
12.7.l The Lessee will return the Leased Part at the end of the Lease
Period to the address indicated herebelow:
Airbus North America Customer Services Spares Center
21780 Filigree Court
Ashburn, VA 20147-6205
or any other address indicated by the Lessor.
12.7.2 The return shipping document will indicate the reference of the
Lease and the removal data, such as the following:
(i) Aircraft manufacturer serial number,
(ii) removal date,
(iii) total flight hours and flight cycles for the period the
Leased Part was installed on the Aircraft, and
(iv) documentation in accordance with Sub-condition 12.5
If the Lessee cannot provide the above mentioned data and
documentation for the Leased Part to be returned from Lease,
lease charges of seventy-five percent (75%) of the Lessor's
current sales price for a new part plus fifty percent (50%) of
the accumulated Lease fees will be invoiced. According to the
Lessor's quality standards,
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parts are not serviceable without the maintenance history data
outlined above and must be scrapped on site.
12.7.3 The unserviceable or serviceable tag issued by the Lessee and the
original Lessor certification documents must be attached to the
Leased Part.
12.7.4 The Leased Part will be returned with the same painting as when
delivered (Airbus gray or primary paint). If the Lessee is not in
a position to return the Leased Part in the same serviceable
condition, the Lessee will contact the Lessor for instructions.
12.7.5 The Leased Part is to be returned in the same shipping container
as that delivered by the Lessor. The container must be in a
serviceable condition, normal wear and tear excepted.
12.7.6 The Lessee will not return an equivalent part different from the
Leased Part delivered by the Lessor without the Lessor's prior
written agreement.
12.8 OPTION TO PURCHASE
12.8.1 The Lessee may, at its option, exercisable by written notice
given to the Lessor during the Lease Period, elect to purchase
the Leased Part, in which case the then-current sales price for
such Leased Part, as set forth in the Seller's Spare Parts Price
List, will be paid by the Lessee to the Lessor. Should the Lessee
exercise such option, [ * ] of the Lease Charges due pursuant to
Sub-condition 12.4(i) will be credited to the Lessee against said
purchase price of the Leased Part.
12.8.2 If purchased, the Leased Part will be warranted in accordance
with Sub-condition 6.2 as though such Leased Part were a Seller
Part, but the warranty period will be deemed to have commenced on
the date such part was first installed on any Aircraft. However,
in no event will such warranty period be less than six (6) months
from the date of purchase of such Leased Part. A warranty granted
under this Sub-condition 12.8.2 will be in substitution for the
warranty granted under Sub-condition 12.9 at the beginning of the
Lease Period.
12.9 WARRANTIES
The Lessor, in its capacity as "Lessee," under its arrangements
with the Manufacturer, in its capacity as "Lessor," has
negotiated and obtained the following warranties from the
Manufacturer with respect to the Leased Parts, subject to the
terms, conditions, limitations and restrictions all as
hereinafter set out. The Lessor hereby assigns to the Lessee, and
the Lessee hereby accepts, all of the rights and
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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obligations of the Lessor in its capacity as "Lessee" as
aforesaid under the said warranties and the Lessor subrogates the
Lessee as to all such rights and obligations in respect of Leased
Parts during the Lease Term with respect thereto. The Lessor
hereby warrants to the Lessee that it has all requisite authority
to make the foregoing assignment and effect the foregoing
subrogation t,o and in favor of, the Lessee and that it will not
enter into any amendment of the provisions so assigned or
subrogated without the prior written consent of the Lessee.
Capitalized terms utilized in the following provisions have the
meanings assigned thereto in this Letter Agreement, except that
the term "Lessor" refers to the Manufacturer and the term
"Lessee" refers to the Lessor.
QUOTE
12.9.1 The Lessor warrants that each Leased Part will at the time of
delivery be free from defects in material and workmanship that
could materially impair the utility of the Leased Part.
12.9.2 Warranty and Notice Periods
The Lessee's remedy and the Lessor's obligation and liability
under this Sub-condition 12.9, with respect to each defect, are
conditioned on:
(i) the defect having become apparent to the Lessee within
the Lease Period, and
(ii) the return by the Lessee as soon as practicable to the
return location specified in the applicable Lease, or
such other place as may be mutually agreed, of the
Leased Part claimed to be defective, and
(iii) the Lessor's warranty administrator having received
written notice of the defect from the Lessee within
forty-five (45) days after the defect becomes apparent
to the Lessee, with reasonable proof that the claimed
defect is due to a matter embraced within the Lessor's
warranty under this Sub-condition 12.9 and that such
defect did not result from any act or omission of the
Lessee, including, but not limited to, any failure to
operate or maintain the Leased Part claimed to be
defective or the Aircraft in which it was installed in
accordance with applicable governmental regulations and
the Lessor's applicable written instructions.
12.9.3 Remedies
The Lessee's remedy and the Lessor's obligation and liability
under this Sub-condition 12.9 with respect to each defect are
limited to the repair of such defect in the Leased Part in which
the defect appears, or, as mutually agreed, to the replacement of
such Leased Part with a similar part free from defect.
Any replacement part furnished under this Sub-condition 12.9.3
will be deemed to be the Leased Part so replaced.
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12.9.4 Suspension and Transportation Costs
12.9.4.l If a Leased Part is found to be defective and covered by this
warranty, the Lease Period, and the Lessee's obligation to pay
Lease Charges as provided for in Sub-condition 12.4(i), will be
suspended from the date on which the Lessee notifies the Lessor
of such defect until the date on which the Lessor has repaired,
corrected or replaced the defective Leased Part, provided,
however, that the Lessee has, promptly after giving such notice
to the Lessor, withdrawn such defective Leased Part from use. If
the defective Leased Part is replaced, such replaced part will be
deemed to no longer be a Leased Part under the Lease as of the
date on which such part was received by the Lessor at the return
location specified in the applicable Lease.
If a Leased Part is found to be defective on first use by the
Lessee and is covered by this warranty, no Lease Charges, as
provided in Sub-condition 12.4(i), will accrue and be payable by
the Lessee until the date on which the Lessor has repaired,
corrected or replaced the defective Leased Part.
12.9.4.2 All transportation and insurance costs of returning the defective
Leased Part and returning the repaired, corrected or replacement
part to the Lessee will be borne by the Lessor.
12.9.5 Wear and Tear
Normal wear and tear and the need for regular maintenance and
overhaul will not constitute a defect or non-conformance under
this Sub-condition 12.9.
12.9.6 Exclusivity of Warranties and General Limitations of Liability
and Duplicate Remedies
THE LESSEE AND THE LESSOR RECOGNIZE AND AGREE THAT THE
EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS OF LIABILITY
PROVISIONS AND THE DUPLICATE REMEDIES PROVISIONS CONTAINED IN
SUB-CONDITIONS 6.10 AND 6.11 OF THE THIS LETTER AGREEMENT WILL
ALSO APPLY TO THE FOREGOING WARRANTIES PROVIDED FOR IN THIS
SUB-CONDITION 12.9.
UNQUOTE
In consideration of the assignment and subrogation by the Seller
under this Subcondition 12.9 in favor of the Buyer in respect of
the Seller's rights against, and obligations t, the Manufacturer
under the provisions quoted above, the Buyer hereby accepts such
assignment and subrogation and agrees to be bound by all of the
terms, conditions and limitations therein contained.
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12.10 EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS OF LIABILITY
AND DUPLICATE REMEDIES
SUB-CONDITION 12.9 (INCLUDING ITS SUB-PROVISIONS) SETS FORTH THE
EXCLUSIVE WARRANTIES, EXCLUSIVE LIABILITIES AND EXCLUSIVE
OBLIGATIONS OF THE SELLER, AND THE EXCLUSIVE REMEDIES AVAILABLE
TO THE BUYER, WHETHER UNDER THIS LETTER AGREEMENT OR OTHERWISE,
ARISING FROM ANY DEFECT OR NON-CONFORMITY OR PROBLEM OF ANY KIND
IN ANY LEASED PART DELIVERED UNDER THIS LETTER AGREEMENT.
THE BUYER RECOGNIZES THAT THE RIGHTS, WARRANTIES AND REMEDIES IN
SUBCONDITION 12.9 ARE ADEQUATE AND SUFFICIENT TO PROTECT THE
BUYER FROM ANY DEFECT OR NON-CONFORMITY OR PROBLEM OF ANY KIND IN
THE GOODS AND SERVICES SUPPLIED UNDER THIS LETTER AGREEMENT. THE
BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES,
OBLIGATIONS, GUARANTEES AND LIABILITIES OF THE SELLER AND ALL
OTHER RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE
SELLER, WHETHER EXPRESS OR IMPLIED BY CONTRACT, TORT OR STATUTORY
LAW OR OTHERWISE, WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT OR
PROBLEM OF ANY KIND IN ANY LEASED PART DELIVERED UNDER THIS
LETTER AGREEMENT, INCLUDING BUT NOT LIMITED TO:
(1) ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR
ANY GENERAL OR PARTICULAR PURPOSE;
(2) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM THE COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(3) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(4) ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY THEORY OF
LIABILITY, HOWEVER ALLEGED, INCLUDING, BUT NOT LIMITED TO,
ACTIONS AND/OR CLAIMS FOR NEGLIGENCE, GROSS NEGLIGENCE,
INTENTIONAL ACTS, WILLFUL DISREGARD, PRODUCT LIABILITY,
STRICT LIABILITY OR FAILURE TO WARN;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM
COMMERCIAL CODE, OR ANY OTHER STATE OR FEDERAL STATUTE;
(6) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR
STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR
LOCAL STATUTE OR AGENCY;
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(7) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED FOR:
(a) LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT, COMPONENT,
EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THE AGREEMENT;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT, COMPONENT,
EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THE AGREEMENT;
(c) LOSS OF PROFITS AND/OR REVENUES;
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.
THE WARRANTIES PROVIDED BY THIS LETTER AGREEMENT WILL NOT BE
EXTENDED, ALTERED OR VARIED, EXCEPT BY A WRITTEN INSTRUMENT
SIGNED BY THE SELLER AND THE BUYER. IN THE EVENT THAT ANY
PROVISION OF SUB-CONDITION 12.10 SHOULD FOR ANY REASON BE HELD
UNLAWFUL, OR OTHERWISE UNENFORCEABLE, THE REMAINDER OF THIS
SUB-CONDITION 12.10 WILL REMAIN IN FULL FORCE AND EFFECT.
The remedies provided to the Buyer under Sub-condition 12.9, as
to any defect in respect of the Aircraft or any part thereof, are
mutually exclusive and not cumulative. The Buyer will be entitled
to the remedy which provides the maximum benefit to it, as the
Buyer may elect, pursuant to the terms and conditions of
Sub-condition 12.9 for any such particular defect for which
remedies are provided under Sub-condition 12.9; provided,
however, that the Buyer will not be entitled to elect a remedy
under one part of Sub-condition 12.9 which constitutes a
duplication of any remedy elected by it under any other part
thereof for the same defect. The Buyer's rights and remedies for
nonperformance of any obligation or liability 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
non-performance covered by Sub-condition 12.9, and the Buyer will
not have any right to require specific performance by the Seller.
NEGOTIATED AGREEMENT
The Buyer and the Seller agree that Sub-condition 12.9 and this
Sub-condition 12.10 have been the subject of discussion and
negotiation and are fully understood by the parties, and that the
price of the Aircraft and the other mutual agreements of the
parties set forth in this Letter Agreement and the Agreement were
arrived at in consideration of, INTER ALIA, the Exclusivity of
Warranties provisions and General Limitations of Liability
provisions set forth above.
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13. TERMINATION
Any termination under Clause 10, 11 or 21 of the Purchase
Agreement or any Letter Agreements thereto will discharge all
obligations and liabilities of the parties under the Conditions
with respect to such undelivered Materiel, services, data or
other items to be purchased hereunder that are applicable to
those Aircraft as to which the Purchase Agreement has been
terminated. Termination under this Condition 13 notwithstanding,
new and unused Materiel in excess of the Buyer's requirements due
to such Aircraft cancellation will be repurchased by the Seller
as provided in Sub-condition 3.8 of these Conditions.
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14. ASSIGNMENT
Notwithstanding any other provision of these Conditions or of the
Purchase Agreement, or any Letter Agreement thereto, these
Conditions and the rights and obligations of the Buyer hereunder
will not be assigned or transferred in any manner without the
prior written consent of the Seller, and any attempted assignment
or transfer in contravention of the provisions of this Condition
14 will be void and of no force or effect.
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If the foregoing correctly sets forth our understanding, please
execute the original and one (1) copy hereof in the space below
and return a copy to the Seller.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ MARIE-PIERRE MERLE BERAL
----------------------------
Marie-Pierre Merle-Beral
Its: Chief Executive Officer
Accepted and Agreed,
FEDERAL EXPRESS CORPORATION
By: /s/ JAMES R. PARKER
----------------------
James R. Parker
Its: Vice President
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EXHIBIT A - [ * ]
[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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EXHIBIT B - [ * ]
[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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EXHIBIT C - REPORTING TABLES
[ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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EXHIBIT D - SELLER SERVICE LIFE POLICY
1. The SLP Items of primary and auxiliary structure described
hereunder are covered by the Service Life Policy described in
Sub-condition 6.4.
2. WINGS - (CENTER, LEFT AND RIGHT OUTER)
2.1 WING STRUCTURE
2.1.1 Spars
2.l.2 Ribs, [ * ] inside the wing box (center and outer)
2.1.3 Upper and lower panels of the wing box
2.1.4 [ * ]
2.1.5 [ * ]
2.1.6 [ * ]
2.1.7 Wing Tip
2.2 FITTINGS
2.2.1 [ * ] attachment fittings for the flap structure
2.2.2 [ * ] attachment fittings for the engine pylons
2.2.3 [ * ] attachment fittings for the main landing gear
2.2.4 [ * ] attachment fittings for the center wing box
2.3 AUXILIARY SUPPORT STRUCTURE
2.3.1 FOR THE SLATS [ * ]
2.3.1.1 Ribs supporting the track rollers on wing box structure
2.3.1.2 Ribs supporting the actuators on wing box structure
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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2.3.2 FOR THE AILERONS
2.3.2.1 Hinge brackets and ribs on wing box rear spar or shroud box
2.3.2.2 Actuator fittings on wing box rear spar or shroud box
2.3.3 FOR AIRBRAKES, SPOILERS, LIFT DUMPERS
2.3.3.l Hinge brackets and ribs on wing box rear spar or shroud box
2.3.3.2 Actuator fittings on wing box rear spar or shroud box
2.3.4 FOR THE FLAPS
2.3.4.1 [ * ]
2.4 PYLON
2.4.l [ * ]
2.4.1.l [ * ]
2.4.l.2 [ * ]
2.4.l.3 [ * ]
2.4.l.4 [ * ]
3. FUSELAGE
3.1 FUSELAGE STRUCTURE
3.1.1 Fore, [ * ] and Aft pressure bulkheads, [ * ]
3.1.2 Pressurized floors and bulkheads surrounding the main- and
nose-gear wheel well and center wing box
3.1.3 Skins (including skin joints) with doublers, stringers and frames
from the forward pressure bulkheads [ * ] supporting the rear
attachment of horizontal tail plane (or also referred to as the
horizontal stabilizer)
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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3.1.4 Window and windshield attachment structure, but excluding
transparencies
3.1.5 Sills (excluding scuff plates) and upper beams surrounding
passenger and cargo door apertures
3.1.6 Cockpit, Courier and Service Area floor structure and Cargo
Compartment floor beams, excluding floor panels and seat rails
3.1.7 [ * ]
3.1.8 [ * ]
3.1.9 [ * ]
3.2 FITTINGS
3.2.1 [ * ]
3.2.2 Support structure and attachment fittings for the vertical and
horizontal tail plane (or also referred to as vertical and
horizontal stabilizers)
3.2.3 [ * ]
3.2.4 [ * ]
3.3 [ * ]
3.3.1 [ * ]
3.3.2 [ * ]
3.3.3 [ * ]
3.3.4 [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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4 Horizontal Tail Planes (STABILIZERS)
4.1 HORIZONTAL TAIL PLANE (HTP)
4.1.1 HORIZONTAL TAIL TORQUE BOX
4.1.1.1 Spars
4.1.1.2 Ribs
4.1.1.3 Skins and stringers
4.1.1.4 Support structure and attachment fitting to fuselage and trim
screw actuator
4.1.2 [ * ]
4.1.3 [ * ]
4.1.4 ELEVATOR SUPPORT STRUCTURE
4.1.4.1 Hinge bracket
4.1.4.2 Servocontrol attachment brackets
4.1.5 HTP CONTROL SURFACES SUPPORT STRUCTURE
4.1.5.1 Hinge bracket
4.1.5.2 Servocontrol attachment brackets
4.2 VERTICAL TAIL PLANE (VTP)
4.2.1 VERTICAL TAIL CENTER BOX
4.2.1.1 Spars
4.2.1.2 Ribs
4.2.1.3 Skins and stringers
4.2.1.4 Support structure and attachment fitting to fuselage
4.2.2 [ * ]
4.2.3 [ * ]
4.2.4 VTP CONTROL SURFACES SUPPORT STRUCTURE
4.2.4.1 Hinge brackets
4.2.4.2 Servocontrol attachment brackets
5 EXCLUSIONS
Bearing and roller assemblies, bearing surfaces, bushings, bolts,
rivets, latching mechanisms, servicing panels, all system
components, commercial interior parts, insulation and related
installation and connecting devices are excluded from this Seller
Service Life Policy.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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EXHIBIT E - SELLER PARTS LEASING LIST
(Leased Parts)
AILERONS
AUXILIARY POWER UNIT (APU) DOORS
CARGO DOORS
PASSENGER DOORS
ELEVATORS
FLAPS
LANDING GEAR DOORS
RUDDER
TAIL CONE
WING SLATS
SPOILERS
AIRBRAKES
WING TIPS
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EXHIBIT F - TECHNICAL DATA FOR THE AIRCRAFT
In continuation of progressive policies applied in previous Airbus aircraft
programs, Technical Data, whether in accordance with or supplementary to ATA
2200 specification, will be made available electronically through the Airbus
On-Line Services (AOLS) in accordance with Sub-condition 4.9 of this Letter
Agreement when Technical Data production means allow it, [ * ]
Aircraft systems (e.g. Onboard Maintenance System (OMS)/Onboard Information
System (OIS)) will be designed for maximum integration of, and access to,
maintenance and operational data in support of the paperless cockpit concept,
efficient trouble-shooting and short turn-around times.
If for certain data that are available on-line, the Buyer, the Aviation
Authorities or data processing should require digital media, such as CD, then
such media will be made available for the purpose of the initial Technical Data
supply, in quantities and formats as defined or based on ATA standards, subject
to licensing conditions to be mutually agreed upon, [ * ]
The format and definition of Technical Data for the A380 aircraft is under
development. To allow the Buyer to benefit from these developments, it is hereby
agreed that the Seller and the Buyer will, within two (2) years prior to
Delivery of the first Aircraft, mutually agree upon a suite of Technical Data to
be delivered to the Buyer to support the Buyer's operation. Such suite of
Technical Data will be based upon the following list:
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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<Table>
<Caption>
NOMENCLATURE Abbr
- ------------ ----
OPERATIONAL MANUALS AND DATA
Flight Crew Operating Manual FCOM
Flight Manual FM
Master Minimum Equipment List MMEL
Quick Reference Handbook QRH
Trim Sheet TS
Weight and Balance Manual WBM
Performance Engineer's Programs PEP
Performance Programs Manual PPM
MAINTENANCE AND ASSOCIATED MANUALS
Aircraft Maintenance Manual AMM
Aircraft Schematics Manual ASM
Aircraft Wiring Lists AWL
Aircraft Wiring Manual AWM
Component Location Manual CLM
Consumable Material List CML
Duct Repair Manual DRM
Electrical Standard Practices Manual ESPM
Fuel Pipe Repair Manual FPRM
Illustrated Parts Catalog (Airframe) IPC
Illustrated Parts Catalog (Power Plant) PIPC
MAINTENANCE AND ASSOCIATED MANUALS
Maintenance Facility Planning MFP
Maintenance Planning Document MPD
Maintenance Review Board MRB
Support Equipment Summary SES
Tool and Equipment Bulletins TEB
Tool and Equipment Drawings TED
Tool and Equipment Index TEI
Illustrated Tool and Equipment Manual TEM
Technical Publications Combined Index TPCI
Trouble Shooting Manual TSM
</Table>
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<Page>
<Table>
<Caption>
NOMENCLATURE Abbr
- ------------ ----
STRUCTURAL MANUALS
Nondestructive Testing Manual NTM
Nacelle Structural Repair Manual NSRM
Structural Repair Manual SRM
OVERHAUL DATA
Component Documentation Status CDS
Component Evolution List CEL
Component Maintenance Manual - Manufacturer CMMM
Component Maintenance Manual - Vendor CMMV
Cable Fabrication Manual CFM
ENGINEERING DOCUMENTS
Drawing Numerical Index DNI
Installation and Assembly Drawings IAD
Process and Material Specification PMS
Parts Usage (Effectivity) PU
Schedule (Drawing Nomenclature) S
Standards Manual SM
MISCELLANEOUS PUBLICATIONS
Airplane Characteristics for Airport Planning AC
ATA Index ATAI
CADETS (Technical Publications Training) CADE
Aircraft Recovery Manual ARM
Crash Crew Chart CCC
Cargo Loading System Manual CLS
List of Applicable Publications LAP
List of Radioactive and Hazardous Elements LRE
Livestock Transportation Manual LTM
Service Bulletins SB
Service Information Letters SIL
Supplier Product Support Agreements SPSA
Transportability Manual TM
Vendor Information Manual VIM
Vendor Information Manual GSE VIM/
Vendor Product Support Agreements VPSA
Supplier Product Support Agreements SPSA
</Table>
LA4-104
<Page>
APPENDIX 1 TO EXHIBIT F - LICENSE FOR USE OF THE PERFORMANCE
ENGINEER'S PROGRAMS (PEP)
1 Grant
1.1 The Seller hereby grants the Buyer a [ * ] license to use the PEP
during the term of this license ("PEP License") on up to [ * ]
1.2 The above grant shall [ * ]
2 Copies
2.1 Use of the PEP shall be limited to [ * ] copies.
2.2 The Buyer agrees to reproduce the copyright and other notices as
they appear on or within the original media on any copies that
the Buyer makes of the PEP.
3 Term
The rights under the PEP License shall be granted to the Buyer
for as long as the Buyer operates a Seller's Aircraft model to
which the PEP is applicable. When the Buyer stops operating said
Aircraft model, the Buyer shall use its best reasonable efforts
to return the PEP, and any copies thereof, to the Seller,
accompanied by a notice certifying that the Buyer has used its
best reasonable efforts to return all such existing copies.
4 MERGING
The PEP may be used and adapted in machine-readable form for the
purpose of merging it into other program material of the Buyer,
but on termination of this PEP License, the PEP shall be removed
from the other program material with which it has been merged.
The Buyer agrees to reproduce the copyright and other notices as
they appear on or within, the original media in any program into
which the PEP is merged.
5 Personal License
The above-described PEP License is personal to the Buyer,
nontransferable and nonexclusive.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
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6 Installation
It is the Buyer's responsibility to install the PEP and to
perform any merging and checks.
7 Training
7.1 In addition to the performance programs user guide supplied with
the PEP, training and other assistance will be provided in
accordance with Sub-clause 1.4 of Appendix A to Clause 16 of the
Purchase Agreement.
7.2 In addition, the Buyer will be allowed to [ * ] to any scheduled
performance engineer class at the Seller's training centers,
[ * ] classroom space permitting. The Buyer's attendees will be
responsible for their own travel expenses.
8 Proprietary Rights
The PEP and the copyright and other proprietary rights of
whatever nature in the PEP are, and shall remain, with the
Seller. The PEP and its contents are designated as confidential.
9 Copyright Indemnity
The Seller shall defend and indemnify the Buyer against any claim
that the normal use of PEP infringes on the intellectual property
rights of any third party in accordance with terms and conditions
of Condition 8 of this Letter Agreement, except that the words
"best efforts", contained in Sub-condition 8.1.3, will be
replaced, when Condition 8 is applied with respect to the PEP, by
the words "best reasonable efforts", but so as not to materially
impair the Buyer's ability to operate the Aircraft.
10 Confidentiality
The Buyer undertakes not to disclose the PEP or parts thereof and
its contents to any third party without the prior written consent
of the Seller. In so far as it is necessary to disclose aspects
of the PEP to employees, such disclosure is permitted only for
the purpose for which the PEP is supplied and only to the
employee who needs to know the same.
11 Conditions of Use
The Buyer shall ensure that the PEP is correctly used in
appropriate machines as described in the PEP delivery
documentation and that staff are properly trained to use the same
in accordance with the user guide.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA4-106
<Page>
12 Warranty
12.1 The Seller warrants that the PEP is prepared in accordance with
the state of art at the date of conception. Should the PEP be
found to contain any non,conformity or defect, the Buyer shall
notify the Seller promptly thereof and the sole and exclusive
liability of the Seller under this PEP License shall be to
correct the same at its own expense.
Notwithstanding the provisions of this Sub-condition 12.1, the
Seller indemnity described in Condition 8 of this Letter
Agreement No. 4 will apply to copyright and patent infringement
relating to the PEP, except that the words "best efforts"
contained in Sub-condition 8.1.3 will be replaced, when Condition
8 is applied with respect to the PEP, by the words "best
reasonable efforts", but so as not to materially impair the
Buyer's ability to operate the Aircraft.
12.2 SUBJECT TO THE PROVISIONS OF SUB-CONDITION 12.l OF THIS APPENDIX
1 OF THIS EXHIBIT F AND CONDITION 8 OF THIS LETTER AGREEMENT, THE
WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND
REMEDIES OF THE BUYER SET FORTH IN THIS PEP LICENCE 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 NON-CONFORMITY OR DEFECT IN THE
PEP DELIVERED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED
TO:
(A) ANY EXPRESS WARRANTY;
(B) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(C) ANY IMPLIED WARRANTY ARISING FROM THE COURSE OF PERFORMANCE,
COURSE OF DEALING OR USAGE OF TRADE;
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER
IN CONTRACT OR IN TORT AND WHETHER OR NOT ARISING FROM THE
SELLER'S ACTUAL OR IMPUTED NEGLIGENCE; AND
(E) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS
OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY
OR PART THEREOF.
THE SELLER SHALL HAVE NO OBLIGATION OR LIABILITY, HOWSOEVER
ARISING, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER OF
THE BUYER'S DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH
RESPECT TO ANY NON-CONFORMITY OR DEFECT IN THE PEP DELIVERED
UNDER THIS AGREEMENT.
LA4-107
<Page>
APPENDIX 2 TO EXHIBIT F - AOLS LICENSE
LICENSE AGREEMENT
BETWEEN
AIRBUS NORTH AMERICA CUSTOMER SERVICES, INC.
AND
FEDERAL EXPRESS CORPORATION
FOR AIRBUS ON-LINE SERVICES
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<Page>
LICENSE AGREEMENT
This License Agreement (the "Agreement") is made this 12th day of July, 2002 by
and between Airbus North America Customer Services, Inc., having its principal
corporate office located at 198 Van Buren Street, Suite 300, Herndon, Virginia
("AIRBUS NA CUSTOMER SERVICES") and Federal Express Corporation, having its
principal corporate office located at FEDERAL EXPRESS CORPORATION, 3610 Hacks
Cross Road Memphis, TN 38125 (the "User").
WHEREAS Airbus, G.I.E., ("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"), which is
available via a set of services known as "Airbus On-Line Services" ("AOLS");
WHEREAS Airbus has granted a license for use of AOLS to access the Database to
its affiliate AVSA, S.A.R.L. ("AVSA") and AIRBUS NA CUSTOMER SERVICES has
obtained a license thereof from AVSA; and
WHEREAS AIRBUS NA CUSTOMER SERVICES's license entitles AIRBUS NA CUSTOMER
SERVICES to further sub-license the use of AOLS to the User under the terms and
conditions set forth herein (the "License"), and the User wishes to obtain such
License 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
The following capitalized terms will have the meanings set forth
below:
"Access Procedure Kit" the information necessary for
accessing the Database and
made available to the User
either online or on a CD-ROM.
"Administrator" the person appointed by the
User to be responsible for
qualifying, suspending or
canceling the qualification of
an Authorized User, gathering
identification information
relative to such Authorized
User, applying to the
Certification Service-Provider
for the appropriate
Certificate, providing the
necessary access equipment,
registering the Authorized
User and the Authorized
User-related Certificate with
LA4-109
<Page>
AIRBUS NA CUSTOMER SERVICES
and managing the Authorized
Users.
"Authorized User" a natural person who has been
authorized by the
Administrator to access the
Database pursuant to this
Agreement.
"Certificate" an electronic record (file)
that binds a Public Key to the
identity of the owner of a
Public - Private Key pair and
is signed by the Certificate
Service Provider.
"Certificate Service Provider" an entity or a legal or
natural person retained by
AIRBUS NA CUSTOMER SERVICES or
Airbus who issues Certificates
and/or provides other services
related to Electronic
Signatures
"Data" the usual representation of a
piece of information collected
or produced on any medium so
as to facilitate its
processing on the Database.
"Database" the Data of Airbus and AIRBUS
NA CUSTOMER SERVICES organized
in AOLS in such a manner as to
be used by (a) computer
programs forming distinct
applications to facilitate
electronic or
telecommunication data
exchange, and (b) computer
programs comprising the
necessary electronic elements
for the operation of such
Database, including a
thesaurus, a Database index,
viewing systems and Database
services, such as AOLS.
"Electronic Signature" data in electronic form which
are attached to, or logically
associated with, other
electronic data and which
serve as a method of
authentication.
"Extracting" the temporary or permanent
transfer of Data from a
Database by any means or
media.
"Multibase" a set of databases, which
compose the Database.
"On-Line Help" on-line orientation and
assistance.
LA4-110
<Page>
"Public key" the public cryptographic key
used for the purpose of
verifying an Electronic
Signature.
"Public Key Infrastructure" the system organizing the
generation and distribution of
keys and Certificates.
"Private Key" the private cryptographic key
used for the purpose of
creating an Electronic
Signature.
"Smartcard" a card supplied by AIRBUS NA
CUSTOMER SERVICES, memorizing
the Administrator's identity,
personal password and Private
Key for use with the Reader
for authentication and
security purposes.
"Smartcard Reader" an electronic device supplied
by AIRBUS NA CUSTOMER SERVICES
to be used with the Smartcard
for authentication of the
Administrator
"Use" means viewing, Extracting,
reviewing, printing and
reproducing, on any media, of
Data from the Database
"User Guide" means documentation, which may
be in electronic format,
designed to assist the
Authorized User to use the
Database.
2 GRANT OF LICENSE
AIRBUS NA CUSTOMER SERVICES hereby grants, and User hereby
accepts, a worldwide, fully-paid, royalty-free, non-exclusive,
non-assignable and non-transferable License to the User for the
Use of AOLS to access the Database under the terms and conditions
set forth herein. Such License will be irrevocable, subject to
the provisions of Condition 16 of this Exhibit F, Appendix 2.
3 LIMITATION OF RIGHTS
The User shall be entitled to exercise its rights under this
License through Authorized Users only and only for the purpose of
maintaining and operating Airbus aircraft. Notwithstanding any
provision that may be contained under this License, provided that
the User and its maintenance provider enter into a Data License
Agreement (DRA) with AIRBUS NA CUSTOMER SERVICES the User shall
have the right to
LA4-111
<Page>
transfer any necessary Data and documentation to any of the
User's maintenance providers as may be required for the
maintenance and operation of Airbus aircraft.
4 TECHNICAL CHARACTERISTICS/ CONFIGURATION CHANGES
AOLS Database technical characteristics are defined in
Appendix l.
The configuration of the Database, of the operating systems
involved and of the relevant information systems are subject to
adjustment, modification and improvement by Airbus or AIRBUS NA
CUSTOMER SERVICES from time to time; neither AIRBUS NA CUSTOMER
SERVICES nor Airbus shall be held liable for any consequences to
User of such adjustments, modifications or improvements.
Implementation of AOLS will not impede the User's access to
technical documents to which it has access prior to such
implementation.
5 ADMINISTRATOR AND AUTHORIZED USERS
5.l The User shall appoint one (1) or more Administrators who shall
be responsible for:
(i) gathering and screening identification information on
potential Authorized Users;
(ii) qualifying and managing Authorized Users and, where
appropriate, suspending or canceling the qualifications
thereof;
(iii) making application to the Certification Service
Provider for the appropriate Certificates;
(iv) registering the Authorized Users and the related
Certificates with AIRBUS NA CUSTOMER SERVICES
(iv) providing the network connections and equipment
(excluding the Smartcard and Smartcard Reader, which
are supplied by AIRBUS NA CUSTOMER SERVICES) necessary
to access AOLS.
5.2 Once an Authorized User obtains a Smartcard and a Certificate is
properly issued for such Authorized User, the Authorized User
shall access AOLS by logging onto the Airbus On-Line Services
website in accordance with procedures set forth in the Access
Procedure Kit made available to the User.
The User is solely responsible for the choice of services
accessed for defining its research strategy and for evaluating
and defining the use of, the search results.
5.3 The User shall take every reasonable measure necessary to prevent
unauthorized access to the Database, to the Data and to the
documentation, including the User
LA4-112
<Page>
Guide, in accordance with the terms of this License. Positive
authentication of an Authorized User shall render the User
responsible in all respects for each and every transaction
performed by such Authorized User and the User expressly waives
any right to repudiate any transaction resulting from such Use.
5.4 The User Entity shall comply with the AOLS security procedures
defined by Airbus and/or AIRBUS NA CUSTOMER SERVICES.
5.5 AIRBUS NA CUSTOMER SERVICES shall provide for initial training of
up to three (3) Administrators at AIRBUS NA CUSTOMER SERVICES's
designated site, at no cost to the User. The User shall be
responsible for all costs associated with the transportation of
the Administrators to AIRBUS NA CUSTOMER SERVICES site and shall
bear all costs associated with hotel and personal allowances.
6. DATABASE AVAILABILITY
The Database shall be generally available to the User via the
Airbus On-Line Services website on a 24 hours a day / 7 days a
week basis. Notwithstanding the above, Airbus has reserved the
right to suspend temporarily the access to AOLS where such
suspension is necessary to address security problems, perform
maintenance services, correct errors and bugs, update and/or
upgrade the Database. AIRBUS NA CUSTOMER SERVICES will inform the
User before any scheduled suspension, unless security concerns
prevent such notification.
7. ELECTRONIC LOGS
The electronic logs produced by the information system supporting
AOLS shall be evidence of the communications, transactions and
payments made between AIRBUS NA CUSTOMER SERVICES and the User.
AIRBUS NA CUSTOMER SERVICES will assure that such logs are stored
in a reasonably secure manner and that the data contained in such
logs are not modified following initial recording.
8. ELECTRONIC SIGNATURE
The use of digital Certificates together with the Smartcard
Readers shall constitute the Electronic Signature of the User and
the Authorized Users, authenticating the identities of both and
of the Data communicated by and/or to each of them.
LA4-113
<Page>
9 CERTIFICATES
AIRBUS NA CUSTOMER SERVICES or Airbus will appoint a
Certification Service Provider, who will provide for the issuance
of certificates for three (3) Administrators and up to two
hundred (200) Authorized Users.
Such Certification Service Provider shall, upon the User's
application, issue one (1) or more Certificates containing:
(i) the identification of the Certification Service
Provider;
(ii) the country in which such Certificate was issued:
(iii) the identification of the User and the Authorized User;
(iv) the User's and the Authorized User's Public Key
corresponding to the User's and the Authorized User's
Private Key(s);
(v) the identity code of the Certificate;
(vi) the Electronic Signature of the Certification Service
Provider issuing the Certificate, and
(vii) limitations, if any, on the scope of the Certificate
All dues or fees charged by the Certification Service Provider
shall be the responsibility of the User. Should AIRBUS NA
CUSTOMER SERVICES become aware of the possibility or actuality of
any such fees, it will inform the User as soon as practicable.
10. PROTECTION OF INTELLECTUAL PROPERTY RIGHTS
10.1 The User acknowledges that AOLS, the Database and all
documentation supplied in connection therewith, including the
Airbus On-Line Services Catalog, the User Guide and all On-Line
Help, are, and shall remain, the property of Airbus, and the User
agrees to take no action inconsistent with Airbus' ownership
rights in same. The User shall not deactivate the
Database-integrated security system.
10.2 The User shall not make representations regarding, or market or
promote, the Database or any Data from the Database, whether
gratuitously or for consideration. The User shall not adapt,
modify, alter, arrange or translate the Database for any reason,
or alter the Database's architecture in any manner.
Notwithstanding the foregoing, the User shall have the right to
extract Data or any other information from the Database for its
use as set forth under this License.
LA4-114
<Page>
10.3 The User shall not use any information regarding the structure,
content or operation of AOLS to create a database designed to
compete with AOLS.
10.4 The User shall inform its Authorized Users of the terms of this
Agreement and in particular of this Section 10, and shall take
all other reasonable measures to prevent unauthorized access to
the Database. The User shall preserve all copyright notations
appearing on the Database, Data and documentation (including the
User Guide and the Airbus On-Line Services Catalog), and on any
media.
11. INTELLECTUAL PROPERTY RIGHTS INDEMNITY
AIRBUS NA CUSTOMER SERVICES shall indemnify the User against any
claims that the normal Use of the Database infringes on the
intellectual property rights of any third party, provided that
the User (a) forthwith notifies AIRBUS NA CUSTOMER SERVICES of
any such claim, (b) makes no admission or settlement of any
claim, (c) allows AIRBUS NA CUSTOMER SERVICES to conduct the
defense or settlement of such claim, and (d) provides AIRBUS NA
CUSTOMER SERVICES with all reasonable assistance as may be
requested in writing by AIRBUS NA CUSTOMER SERVICES in connection
therewith and at AIRBUS NA CUSTOMER SERVICES's expense.
12. WARRANTY
AIRBUS NA CUSTOMER SERVICES, in its capacity as the "User," has
obtained from Airbus, through its license with AVSA, the
following warranty. AIRBUS NA CUSTOMER SERVICES hereby assigns to
the User and the User hereby accepts, all of the rights and
obligations of AIRBUS NA CUSTOMER SERVICES in its capacity as a
"User" under the aforementioned license, and AIRBUS NA CUSTOMER
SERVICES subrogates the User into all such rights and obligations
in respect of the License. AIRBUS NA CUSTOMER SERVICES hereby
warrants that it has the requisite authority to make the
foregoing assignment and effect the foregoing subrogation to, and
in favor of, the User and that it will not enter into any
amendment of the provisions so assigned without the prior written
consent of the User. Capitalized terms used in the following
provisions have the meanings assigned thereto in this License,
except that "User " refers to AIRBUS NA CUSTOMER SERVICES.
QUOTE
12.l Airbus warrants that the Database has been developed in
accordance with the state of art current as of the date of such
development, taking into account the diversity of the information
sources presented and the complexity of the information
processing involved.
LA4-115
<Page>
12.2 IN THE EVENT THAT THE DATABASE IS FOUND TO CONTAIN A DEFECT, THE
LIABILITY OF AIRBUS NA CUSTOMER SERVICES SHALL BE LIMITED TO
CORRECTION OF THE DEFECT AT ITS EXPENSE.
12.3 The above warranty shall not apply to:
(i) data transmission;
(ii) the performance of the website or the internet;
(iii) the telecommunications lines, information systems
hardware or software products, proprietary or
otherwise, interfacing with the Database, including the
browser;
(iv) malfunctions or defects attributable to the
availability or speed or other inherent limitations in
the world wide web or search engines employed with
respect thereto, or
(v) any consequence of the interface of the User's software
with the Database.
12.4 The User shall inform Airbus of any error or missing Data of
which it may become aware during it use of the Database.
12.5 Waiver, Release and Renunciation
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF AIRBUS NA CUSTOMER
SERVICES AND REMEDIES OF THE USER SET FORTH IN THIS AGREEMENT ARE
EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE USER HEREBY WAIVES,
RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND
LIABILITIES OF AIRBUS AND RIGHTS, CLAIMS AND REMEDIES OF THE USER
AGAINST AIRBUS NA CUSTOMER SERVICES, EXPRESS OR IMPLIED, ARISING
BY LAW OR OTHERWISE, WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT
IN THE DATABASE MADE AVAILABLE
UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO:
(A) ANY WARRANTY AGAINST HIDDEN DEFECTS;
(B) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(C) ANY IMPLIED WARRANTY ARISING FROM THE COURSE OF PERFORMANCE,
COURSE OF DEALING OR USAGE OF TRADE;
LA4-116
<Page>
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER
CONTRACTUAL OR DELICTUAL AND WHETHER OR NOT ARISING FROM
AIRBUS'S NEGLIGENCE, ACTUAL OR IMPUTED; AND
(E) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS
OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY
OR PART THEREOF.
AIRBUS NA CUSTOMER SERVICES SHALL HAVE NO OBLIGATION OR
LIABILITY, HOWSOEVER ARISING, FOR THE USER'S LOSS OF USE, REVENUE
OR PROFIT OR FOR ANY OTHER OF THE USER'S DIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY NON-CONFORMITY OR
DEFECT IN THE DATABASE MADE AVAILABLE UNDER THIS AGREEMENT.
UNQUOTE
13. NONDISCLOSURE
Except as set forth in this License, the User shall not disclose
the Database, related documentation, or parts thereof, to any
third party without the prior written consent of AIRBUS NA
CUSTOMER SERVICES. Insofar as it is necessary to disclose aspects
of the Database to employees, such disclosure is permitted only
for the purpose for which the Database is supplied and only to
the employee with a need to know.
14. PERSONAL DATA PROTECTION
If necessary under applicable law to protect the privacy of any
personal data received regarding any of the User's or AIRBUS NA
CUSTOMER SERVICES'S personnel, AIRBUS NA CUSTOMER SERVICES or the
User, as applicable, will register such data with the relevant
authority or authorities and shall inform the other party
regarding the receipt or potential receipt of such data. Personal
data may be accessed and any errors therein corrected by notice
in writing to AIRBUS NA CUSTOMER SERVICES. The User shall notify
Authorized Users of this right and shall itself abide by
applicable rules on personal data protection. Nothing in this
Paragraph 14 is intended by either party to grant access to the
personal data of its personnel.
15. EXCUSABLE DELAYS
15.l Neither AIRBUS NA CUSTOMER SERVICES nor its affiliates shall be
responsible for, or be deemed to be in default on account of,
delays in availability of the services licensed hereunder due to
causes reasonably beyond AIRBUS NA CUSTOMER SERVICES'S, Airbus's
or their respective subcontractors' control, including, but not
limited to the following: natural disasters, fires, floods,
LA4-117
<Page>
explosions or earthquakes, epidemics or quarantine restrictions,
serious accidents, total or constructive total loss, any act of
the government of the country of the User or the governments of
the countries of Airbus or its subcontractors, war, insurrections
or riots, failure of transportation, communications or services,
strikes or labor troubles causing cessation, slow-down or
interruption of services, inability after due and timely
diligence to procure materials, accessories, equipment or parts,
failure of a subcontractor or vendor to furnish materials,
accessories, equipment or parts due to causes reasonably beyond
such subcontractor's or vendor's control or failure of the User
to comply with its obligations under this License (all of the
foregoing defined as "Excusable Delay").
15.2 AIRBUS NA CUSTOMER SERVICES shall, as soon as practicable after
becoming aware of any Excusable Delay, notify the User of such
delay and of the probable duration thereof and shall, subject to
the conditions as hereinafter provided and as soon as practicable
after the removal of the cause or causes for the Excusable Delay,
resume performance under this License.
15.3 Should an Excusable Delay continue for longer than three (3)
months, either party may terminate this License with no further
rights or obligations on the part of either party.
16. TERMINATION
16.l In the event of a material breach of any provision of this
Agreement and/or the License by either party, which is not cured
within thirty (30) days from the date of receipt of a written
notice of such breach, the non-breaching party shall be entitled
to terminate this Agreement and the License.
16.2 In the event of termination for cause, the User's rights to Use
of the Database shall terminate and, unless such breach is
attributable to gross negligence or willful misconduct on the
part of AIRBUS NA CUSTOMER SERVICES, AIRBUS NA CUSTOMER SERVICES
shall retain any amount paid for the then-current year.
17. GENERAL PROVISIONS
17.1 Assignment
Neither the Agreement nor the License may be assigned to a third
party without the prior consent of the other party, except that
AIRBUS NA CUSTOMER SERVICES may assign all or part of this
Agreement to any Airbus member, shareholder or affiliate company.
17.2 Further Sublicense
The User shall not be entitled to further sub-license this
License absent the express written consent of AIRBUS NA CUSTOMER
SERVICES.
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<Page>
17.3 Law
This Agreement and the License are entered into and granted and
shall be interpreted in accordance with the law of the State of
New York, USA, without regard to any conflict of laws provisions
which would result in the application of the law of any other
jurisdiction.
17.4 Invalidity
In the event that any provision of this Agreement is held to be
legally ineffective or unenforceable, such provision shall be
deemed deleted from this Agreement and the remainder of this
Agreement shall remain in full force and effect.
17.5 Notices
All notices and requests required or authorized hereunder shall
be given in writing either by registered mail (return receipt
requested) or by fax at the addresses set forth below. In the
case of any such notice or request being given by registered
mail, the date upon which it is received by the addressee or, in
the case of a fax, the date the fax is recorded as "sent" by the
sender's fax machine, shall be deemed to be the effective date of
such notice or request. Such notices shall be sent:
If to AIRBUS NA CUSTOMER SERVICES:
Airbus North America Customer Services, Inc.
198 Van Buren Street
Suite 300
Herndon, VA 20170
If to the User:
Federal Express Corporation
3610 Hacks Cross Road
Memphis, TN 38125
17.6 Entire Agreement
This Agreement contains the entire understanding of the parties
hereto regarding the subject hereof, and supercedes and renders
void all other prior written or oral agreements thereon. This
Agreement may not be amended except by a writing signed by both
parties.
LA4-119
<Page>
Wherefore, the AIRBUS NA CUSTOMER SERVICES and the User have agreed and have
executed this Agreement on the date first above written:
AIRBUS NORTH AMERICA
CUSTOMER SERVICES, INC.
By: /s/ CLYDE KIZER
----------------------------
Its: President & COO
FEDERAL EXPRESS CORPORATION
By: /s/ JAMES R. PARKER
----------------------
James R. Parker
Its: Vice President
LA4-120
<Page>
AIRBUS NA CUSTOMER SERVICES AOLS CATALOG
Exhibit 1 to License Agreement
LA4-121
<Page>
AOLS MULTIBASE SERVICES
A. AOLS Free Areas
- Technical Follow-Up (TFU)
- Modification Information Document (MID)
- All Operators Telex (AOT)
- Flight Operations Telex (FOT)
- Buyer Service Catalog
B. AOLS Basic Services
l. Engineering Technical Data Service (ETDS)
The ETDS service will provide access, via a document index, to
the contents of:
- Service Bulletins - issued since beginning of 1993 (SBs
after July 1997 in SGML;
- SBs between 1993 and July 1997 in PDF)
- Service Information Letter (SIL) - all
- Consignes de Navigabilite (CN) - all
- Quarterly Service Report (QSR) - all
In addition, links between those documents are available through
the service.
SBs available in SGML format can be downloaded in SGML. Printing
of all documents will be based on PDF format.
Documents available through this Service are for all Airbus
aircraft types.
2. Flight Crew Operating Manual (FCOM) Service
The FCOM service offers:
- Availability of the FCOM Vol l, Vol 2, Vol 3, Vol 4 on
CD-ROM.
- On-line consultation of the FCOM Vol l, Vol2, Vol3, Vol4.
- On-line consultation of the Operations Engineering Bulletins
(OEB) and the corresponding impacted FCOM procedures.
- On-line consultation of the Temporary Revisions (TR) related
to the FCOM documents.
- 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
LA4-122
<Page>
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.
C. AOLS Optional Services
1. Airbus 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 Parts Lists,
- Bottom-up navigation by using the Parts Usage,
- Printing and downloading of any drawing,
- Back-up service: fax copy of the data.
LA4-123
<Page>
AOLS TECHNICAL CHARACTERISTICS
1. Workstation Specifications
- Hardware requirements
- PC Pentium 11 200 MHz with 64 MB RAM (128 MB
recommended)
- 17-inche (20 inches recommended) screen
- Screen resolution 1024X768 with 256 colors 1 GB hard
drive
- Printer 300 dpi Laser A3/A4, Adobe-compliant
- Software requirements
- Windows Compatibility
- Netscape Navigator 4.51 or Internet Explorer 5.0 (or
higher)
- Browser PDF plug-in: Acrobat Reader 3.01 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://www.csu-software-solutions.com
2. Network Specifications
AIRBUS NA CUSTOMER SERVICES 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 AIRBUS NA CUSTOMER
SERVICES recommends the following minimum configurations in terms
of bandwidth for accessing services such as Airbus Drawing Access
(AIDA):
- For intensive usage: 256 KBPS line
- For moderate usage: 128 KBPS line
- Minimum requirements: 56 KBPS line
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 eight (8)
digit password.
All procedures, rules and responsibilities associated with such
Certificate are described in the Certificate Practice Statement
(CPS).
LA4-124
<Page>
APPENDIX 3 TO EXHIBIT F
DATA RELEASE AGREEMENT
THIS DATA RELEASE AGREEMENT (the "Agreement"), dated as of ____________, 200__
is between and among AIRBUS NORTH AMERICA CUSTOMER SERVICES, INC. with a place
of business is at 198 Van Buren Street, Suite 300, Herndon, VA 20170 ("ANACS"),
and FEDERAL EXPRESS CORPORATION whose place of business is at 3610 Hacks
Crossroad, Memphis, TN 38125, ("FedEx") and_________________, whose place of
business is at ______________________________ (the "Recipient").
W I T N E S S E T H:
WHEREAS, FedEx desires to have released to the Recipient certain data,
identified in Attachment A to this Agreement, which is customized and/or
confidential to FEDEX as well as proprietary to ANACS, AVSA, S.A.R.L.
(hereinafter "AVSA") and/or Airbus (the "Data") and
WHEREAS, ANACS is in possession of such Data and is willing to release
such Data to the Recipient, under the terms and conditions set forth below,
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. FedEx hereby authorizes ANACS to provide the Recipient with full
and complete copies of the Data and expressly waives, with respect to the Data
and its release under this Agreement, any and all obligations of ANACS, AVSA and
Airbus to maintain the confidentiality of such Data.
2. The Data are, and will remain, the exclusive property of ANACS,
AVSA and/or Airbus and may not be disclosed by FedEx or Recipient except as
provided herein.
3. The Recipient will, and will cause its employee(s) and any other
person who obtains any part of the Data through the Recipient to, preserve the
confidentiality of the Data. Except as provided in this Agreement, the Recipient
shall not:
(i) copy, reproduce, distribute or disclose, to any person,
firm, entity or corporation, any of the Data (whether in oral,
electronic or written form), or any facts related thereto; or
(ii) permit any third party to have access to such Data.
It is understood and agreed between and among the parties that ANACS
may transmit Data to the Recipient, and by the signatures of their authorized
representatives below, the Recipient and FedEx agree to be bound, and will
abide, by the terms and conditions of this Agreement.
LA4-125
<Page>
2. The Recipient may provide the Data to its employees and
subcontractors, provided such employees and subcontractors:
(i) need to know the Data for any purpose agreed to by
FedEx and the Recipient which is not inconsistent with
this Agreement;
(ii) are informed of this Agreement; and
(iii) agree to be bound by this Agreement.
3. In the event that the Recipient or any person who has received
Data through the Recipient is requested in any judicial or governmental
proceeding to disclose the Data or any portion thereof, the Recipient will give
ANACS prompt notice of such request so that ANACS may seek an appropriate
protective order. If, in the absence of a protective order, the Recipient or any
such person is, nonetheless, advised by counsel that disclosure of the Data is
required by law, the Recipient may disclose such Data without liability
hereunder.
4. The term Data does not include any information that, as
demonstrated through production of credible evidence,
(i) becomes or has become generally available to the public
other than as a result of violation of this Agreement;
(ii) has been available on a non-confidential basis prior to
its disclosure hereunder;
(iii) is, or has been, developed or acquired independently by
personnel of the Recipient having no substantive
knowledge of the Data, or
(iv) becomes available on a non-confidential basis from a
third-party source.
5. It is a condition of ANACS's agreement to provide the Data as
requested by the FedEx and the Recipient that both FedEx and the Recipient agree
to indemnify and hold ANACS, AVSA and Airbus harmless from and against any and
all claims of third parties for injury, death or property damage arising in
connection with, or in any way related to, the use or possession by the
Recipient of the Data.
6. This Agreement does not require nor may it be implied that ANACS
shall be required to disclose any data hereunder.
7. It is agreed that an action for damages may not be an adequate
remedy for a breach of this Agreement by FedEx or the Recipient and that ANACS
may bring an action for equitable relief, including an action for an injunction.
LA4-126
<Page>
8. It is understood and agreed between and among the parties that
ANACS, AVSA and/or Airbus are bound by confidentiality agreements with third
parties and shall not release information which is the subject of such
agreements, whether or not such information is related to, or is part of, the
Data.
9. Information transferred pursuant to this Agreement will be
protected from disclosure for the term of this Agreement, or for the duration of
the business arrangement between FedEx and the Recipient to which it relates,
whichever is longer.
10. This Agreement shall be effective on the date of execution and
shall remain in effect for the term of five (5) years.
11. 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.
10. THIS AGREEMENT WILL BE INTERPRETED AND ENFORCED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT APPLICATION OF ANY CONFLICT OF
LAWS PROVISIONS WHICH WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANY OTHER
JURISDICTION.
LA4-127
<Page>
ACCEPTED AND AGREED this ____________day of ____________ 20___.
AIRBUS NORTH AMERICA CUSTOMER SERVICES, INC.
By:
----------------------------
Title:
-------------------------
FEDERAL EXPRESS CORPORATION
By:
----------------------------
Title:
-------------------------
[RECIPIENT]
By:
----------------------------
Title:
-------------------------
LA4-128
<Page>
EXHIBIT G
[39 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA4-129
<Page>
LETTER AGREEMENT NO. 5
[11 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA5-1
<Page>
LETTER AGREEMENT NO. 6
As of July 12, 2002
FEDERAL EXPRESS CORPORATION
3610 Hacks Cross Road
Memphis, TN 38125
Re: USED AIRCRAFT
Dear Ladies and Gentlemen:
FEDERAL EXPRESS CORPORATION (the "Buyer") and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A380-800F Purchase Agreement, dated as of
even date herewith (the "Agreement"), which covers, among other things, the sale
by the Seller and the purchase by the Buyer of certain Aircraft, under the terms
and conditions set forth in said Agreement. The parties hereto have agreed to
set forth in this Letter Agreement No. 6 (the "Letter Agreement") certain
additional terms and conditions regarding the sale of the Aircraft provided for
in the Agreement. Capitalized terms used herein and not otherwise defined in
this Letter Agreement will have the meanings assigned thereto in the Agreement.
The terms "herein," "hereof" and "hereunder" and words of similar import refer
to this Letter Agreement.
The parties hereto agree that this Letter Agreement will constitute an integral,
non-severable part of said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference and that this Letter Agreement will be
governed by the provisions of said Agreement, except that if the Agreement and
this Letter Agreement have specific provisions that are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
LA06-1
<Page>
1. [ * ]
1.1 Subsequent to the date of execution of this Agreement, the
Seller, or one of its Affiliates [ * ]
1.2 [ * ]
1.3 [ * ]
2. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or
of the Agreement (but subject to the provisions of Sub-clause
20.2 of the Agreement), this Letter Agreement, and the rights and
obligations of the Buyer hereunder, shall not be assigned or
transferred in any manner without the prior written consent of
the Seller, and any attempted assignment or transfer in
contravention of the provisions of this Paragraph 2 will be void
and of no force or effect.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA06-2
<Page>
If the foregoing correctly sets forth our understanding, please execute the
original and one (1) copy hereof in the space below and return a copy to the
Seller.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ MARIE-PIERRE MERLE BERAL
----------------------------
Marie-Pierre Merle-Beral
Its: Chief Executive Officer
Accepted and Agreed,
FEDERAL EXPRESS CORPORATION
By: /s/ JAMES R. PARKER
------------------------------
James R. Parker
Its: Vice President
LA06-3
<Page>
LETTER AGREEMENT NO. 7
[4 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA07-1
<Page>
LETTER AGREEMENT NO. 8
[3 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA8-1
<Page>
LETTER AGREEMENT NO. 9
[29 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA9-1
<Page>
LETTER AGREEMENT NO. 10
[12 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA10-1
<Page>
LETTER AGREEMENT NO. 11A
[39 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
<Page>
LETTER AGREEMENT NO. 11B
[41 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
<Page>
LETTER AGREEMENT NO. 12
[31 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA12-1
<Page>
LETTER AGREEMENT NO.13
[4 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA13-1
<Page>
LETTER AGREEMENT NO. 14
[3 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA14-1
<Page>
LETTER AGREEMENT NO. 15
[3 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA15-1
<Page>
LETTER AGREEMENT NO. 16
As of July 12, 2002
FEDERAL EXPRESS CORPORATION
3610 Hacks Cross Road
Memphis, TN 38125
Re: TAXES, DUTIES AND IMPOSTS
Dear Ladies and Gentlemen:
FEDERAL EXPRESS CORPORATION (the "Buyer") and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A380-800F Purchase Agreement, dated as of
even date herewith (the "Agreement"), which covers, among other things, the sale
by the Seller and the purchase by the Buyer of certain Aircraft, under the terms
and conditions set forth in said Agreement. The parties hereto have agreed to
set forth in this Letter Agreement No. 16 (the "Letter Agreement") certain
additional terms and conditions regarding the sale of the Aircraft provided for
in the Agreement. Capitalized terms used herein and not otherwise defined in
this Letter Agreement will have the meanings assigned thereto in the Agreement.
The terms "herein," "hereof" and "hereunder" and words of similar import refer
to this Letter Agreement.
The parties hereto agree that this Letter Agreement will constitute an
integral, non-severable part of said Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference and that this Letter
Agreement will be governed by the provisions of said Agreement, except that if
the Agreement and this Letter Agreement have specific provisions that are
inconsistent, the specific provisions contained in this Letter Agreement will
govern.
1. THE SELLER'S OBLIGATIONS
1.1 The Seller will bear, and pay [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA16-1
<Page>
Notwithstanding the foregoing, the Seller will be liable for
neither: [ * ]
that are (a) imposed upon the Buyer, (b) imposed upon the Seller
with an obligation on the Buyer to withhold or collect the amount
thereof from the Seller, or (c) imposed upon the Buyer with an
obligation on the Seller to withhold or collect such amount from
the Buyer.
1.2 The Seller will arrange for the exportation of the Aircraft from
the country of the Delivery Location and [ * ]
1.3 [ * ]
1.4 [ * ]
2. THE BUYER'S OBLIGATIONS
2.1 The Buyer will bear, and pay [ * ]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA16-2
<Page>
Notwithstanding the foregoing, the Buyer will be liable for
neither: [ * ]
that are (a) imposed upon the Seller, (b) imposed upon the Buyer
with an obligation on the Seller to withhold or collect the
amount thereof from the Buye, or (c) imposed upon the Seller with
an obligation on the Buyer to withhold or collect such amount
from the Seller.
2.2 The Buyer will arrange for the importation of the Aircraft into
any country or jurisdiction [ * ]
3. Either party may, at its expense and option, contest fully, or
require the other party to contest fully, any claim that would
require an indemnity payment. Where the Seller or the Buyer
contests any such claim, the other party will have the right to
participate in such contest, including, without limitation, the
right to attend governmental or judicial conferences concerning
such claim and the right to review and approve all submissions to
any governmental or other authority. The party that receives any
tax refund or tax credit (including any interest on such refund
or credit) will pay such tax refund or tax credit to the other
party, provided such other party had previously made an indemnity
payment, less expenses incurred for which the other is liable
(unless such expenses have been reimbursed).
4. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or
of the Agreement (but subject to the provisions of sub-clause
20.2 of the Agreement), this Letter Agreement and the rights and
obligations of the Buyer hereunder shall not be assigned or
transferred in any manner without the prior written consent of
the Seller, and any attempted assignment or transfer in
contravention of the provisions of this Paragraph 4 will be void
and of no force or effect.
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA16-3
<Page>
If the foregoing correctly sets forth our understanding, please
execute the original and one (1) copy hereof in the space below and return a
copy to the Seller.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ MARIE-PIERRE MERLE BERAL
----------------------------
Marie-Pierre Merle-Beral
Its: Chief Executive Officer
Accepted and Agreed,
FEDERAL EXPRESS CORPORATION
By: /s/ JAMES R. PARKER
----------------------
James R. Parker
Its: Vice President
LA16-4
<Page>
LETTER AGREEMENT NO. 17
[3 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA17-1
<Page>
LETTER AGREEMENT NO. 18
[7 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA18-1
<Page>
LETTER AGREEMENT NO. 19
[8 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA19-1
<Page>
LETTER AGREEMENT NO. 20
As of July 12, 2002
FEDERAL EXPRESS CORPORATION
3610 Hacks Cross Road
Memphis, TN 38125
Re: PROPULSION SYSTEM CHOICE
Dear Ladies and Gentlemen:
FEDERAL EXPRESS CORPORATION (the "Buyer") and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A380-800F Purchase Agreement, dated as of
even date herewith (the "Agreement"), which covers, among other things, the sale
by the Seller and the purchase by the Buyer of certain Aircraft, under the terms
and conditions set forth in said Agreement. The parties hereto have agreed to
set forth in this Letter Agreement No. 20 (the "Letter Agreement") certain
additional terms and conditions regarding the sale of the Aircraft provided for
in the Agreement. Capitalized terms used herein and not otherwise defined in
this Letter Agreement will have the meanings assigned thereto in the Agreement.
The terms "herein," "hereof" and "hereunder" and words of similar import refer
to this Letter Agreement.
The parties hereto agree that this Letter Agreement will constitute an
integral, non-severable part of said Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference and that this Letter
Agreement will be governed by the provisions of said Agreement, except that if
the Agreement and this Letter Agreement have specific provisions that are
inconsistent, the specific provisions contained in this Letter Agreement will
govern.
LA20-1
<Page>
1. PROPULSION SYSTEM CHOICE
In accordance with Sub-clause 2.3 of the Agreement, the Buyer has
elected to equip each of the Firm Aircraft with four (4) GE-P&W
Engine Alliance GP7277 Propulsion Systems.
2. ASSIGNMENT
Notwithstanding any other provision of this Letter Agreement or
of the Agreement, (but subject to the provisions of Sub-clause
20.2 of the Agreement), this Letter Agreement, and the rights and
obligations of the Buyer hereunder, will not be assigned or
transferred in any manner without the prior written consent of
the Seller, and any attempted assignment or transfer in
contravention of the provisions of this Paragraph 2 will be void
and of no force or effect.
LA20-2
<Page>
If the foregoing correctly sets forth our understanding, please execute the
original and one (1) copy hereof in the space below and return a copy to the
Seller.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ MARIE-PIERRE MERLE BERAL
----------------------------
Marie-Pierre Merle-Beral
Its: Chief Executive Officer
Accepted and Agreed,
FEDERAL EXPRESS CORPORATION
By: /s/ JAMES R. PARKER
-------------------------
James R. Parker
Its: Vice President
LA20-3
<Page>
LETTER AGREEMENT NO. 21
[3 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
LA21-1
<Page>
[Related side agreement consisting of 4 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
<Page>
[Related side agreement consisting of 25 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.
<Page>
[Related side agreement consisting of 8 pages*]
* Blank spaces contained confidential information which has been filed
separately with the Securities and Exchange Commission pursuant to Rule
24b-2 under the Securities Exchange Act of 1934, as amended.