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EXHIBIT 10.6
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-DAL
BETWEEN
THE BOEING COMPANY
AND
DELTA AIR LINES, INC.
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TABLE OF CONTENTS
Page Number
ARTICLES
1. Definitions, Subject Matter of Sale and
Annual Fleet Plan Review 2
2. Price, Payment and Taxes 6
3. Option Aircraft 11
4. * 13
5. * 17
6. Regulatory Requirements and Certificates 19
7. Detail Specification; Changes 21
8. Representatives, Inspection, Demonstration Flights, Test
Data and Performance Guarantee Compliance 22
9. Delivery 23
10. Excusable Delay 24
11. Risk Allocation/Insurance 26
12. Assignment, Resale or Lease 27
13. Termination for Certain Events 29
14. Notices 31
15. Confidentiality 31
16. Miscellaneous 32
EXHIBITS
A Buyer Furnished Equipment Provisions Document
B Customer Support Document
C Product Assurance Document
D Escalation Adjustment
E Aircraft Delivery Requirements and Responsibilities Document
F *
APPENDICES
1 Sample Insurance Certificate
2 Sample Purchase Agreement Assignment
3 Post-Delivery Sale Notice
4 Post-Delivery Lease Notice
5 Purchaser's/Lessee's Agreement
6 Owner Appointment of Agent - Warranties
7 Contractor Confidentiality Agreement
8 Notice of Option Exercise
9 *
*This confidential information has been omitted and filed separately with the Commission.
AGTA-DAL
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AIRCRAFT GENERAL TERMS AGREEMENT NUMBER AGTA-DAL
BETWEEN
THE BOEING COMPANY
AND
DELTA AIR LINES, INC.
RELATING TO
BOEING AIRCRAFT
This Aircraft General Terms Agreement Number AGTA-DAL (AGTA)
dated as of October 21, 1997, is entered into between The Boeing Company
(Boeing) and Delta Air Lines, Inc. (Customer).
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Article 1. Definitions, Subject Matter of Sale and Annual Fleet Plan
Review.
1.1 Definitions. As used in this AGTA, the following terms
have the following meanings:
Additional Aircraft means all aircraft other than Firm
Aircraft, Option Aircraft and Rolling Option Aircraft that, pursuant to a
written commitment entered into during the Term, Customer agrees to purchase, or
is granted an option to purchase.
Advance Payment is defined as an advance payment against the
Aircraft Price for an Aircraft.
Advance Payment Base Price is defined as the estimated price
of an Aircraft, as of the Execution Date of a Purchase Agreement, for the
Scheduled Delivery Month of such Aircraft using commercial forecasts of the
Escalation Adjustment.
Advance Payment Schedule means, for any Aircraft, a Standard
Advance Payment Schedule or Alternate Advance Payment Schedule.
Aircraft is defined as all aircraft manufactured by Boeing to
be delivered to Customer under the applicable Purchase Agreement, including (i)
Firm Aircraft, (ii) Option Aircraft that became Firm Aircraft, and (iii) Rolling
Option Aircraft that became Firm Aircraft.
Aircraft Basic Price is defined as the sum of (i) the Airframe
Price, (ii) the Optional Features Prices, and (iii) the Engine Price (except 737
model Aircraft for which the Engine Price is included in the Airframe Price).
Aircraft Price is defined as the sum of (i) the Aircraft Basic
Price, (ii) the Escalation Adjustment and other price adjustments made pursuant
to the applicable Purchase Agreement.
Airframe Price is defined as the price of the airframe for a
model of Aircraft set forth in Table 1 to the applicable Purchase Agreement (for
models 737-600, 737-700 and 737-800, the Airframe Price includes the Engine
Price).
Alternate Advance Payment Schedule is defined as the Advance
Payment schedule set forth in Table 3 to the applicable Purchase Agreement.
Boeing is defined as The Boeing Company, a Delaware
corporation.
Boeing Excusable Delay is defined in Article 10.1.
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Boeing Non-Excusable Delay is defined in Article 10.2.
Business Day is defined as any day other than a Saturday,
Sunday or other day on which banking institutions in New York, New York,
Atlanta, Georgia or the State of Washington are authorized or required by law to
close.
Buyer Furnished Equipment (BFE) is defined as equipment
purchased and provided by Customer, which Boeing will receive, inspect, store
and install in an Aircraft before Delivery in accordance with Supplemental
Exhibit BFE/CDSPE/SPE/CSE to the applicable Purchase Agreement.
*This confidential information has been omitted and filed
separately with the Commission.
Customer is defined as Delta Air Lines, Inc., a Delaware
corporation.
Delivery is defined as the following events performed in
accordance with the delivery procedure described in Article 9: (a) tender of an
Aircraft that conforms to the applicable Detail Specification; (b) acceptance of
the Aircraft by Customer; (c) payment by Customer of monies due upon sale of the
Aircraft; (d) sale of such Aircraft by Boeing; and (e) Customer's receipt of the
bill of sale as described in Article 9.3.
Delivery Date is defined as the actual date of delivery for an
Aircraft.
Detail Specification is defined as the Boeing document that
describes the configuration of each Aircraft purchased by Customer.
Engine Price is defined as the price set by the engine
manufacturer for a specific engine model to be installed on the model of
Aircraft set forth in the Tables to the applicable Purchase Agreement (not
applicable to models 737-600, 737-700, and 737-800).
Escalation Adjustment is defined as the price adjustment to
the Airframe and Optional Features Prices (and the Engine Price for models
737-600, 737-700 and 737-800) resulting from the calculation using the economic
price formula contained in Exhibit D to this AGTA.
*This confidential information has been omitted and filed
separately with the Commission.
Execution Date is defined as the date upon which this AGTA and
the Purchase Agreements are executed.
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FAA means the United States Federal Aviation Administration or
any successor agency of the United States.
Firm Aircraft is defined as those Aircraft listed in Table 1
to the applicable Purchase Agreement, and are initially: (a) 70 model
737-632/-732/-832 Aircraft; (b) 9 model 757-232 Aircraft; (c) 10 model
767-332/-332ER Aircraft; and (d) 21 model 767-432ER Aircraft.
Invoice Price is defined as the Aircraft Price, net of
Credits, Advance Payments and other price adjustments made pursuant to the
applicable Purchase Agreement.
Letter Agreement is defined as a letter agreement which, by
its terms, relates to the subject matter of this AGTA and the Purchase
Agreements.
Manufacturer Change is defined as any change to an Aircraft,
data relating to an Aircraft, or testing of an Aircraft required by the FAA to
obtain a Standard Airworthiness Certificate.
Notice of Option Exercise is defined as Customer's
notification to Boeing of the exercise of an Option in the form presented in
Appendix 8 to this AGTA.
Operator Change is defined as a change in equipment that is
required by Federal Aviation Regulations (i) which is generally applicable to
transport category aircraft to be used in United States certified air carriage
and (ii) for which the required compliance date is on or before the Scheduled
Delivery Month of the Aircraft.
Option is defined as a right granted to Customer to purchase
an Aircraft of a designated model in a previously agreed-to delivery position,
exercisable in accordance with the terms and conditions of Article 3 to this
AGTA.
Option Aircraft is defined as those Option Aircraft listed in
Table 2 to the applicable Purchase Agreement and are initially: (i) 60 model
737-632/-732/-832 Aircraft; (ii) 20 model 757-232 Aircraft; (iii) 10 model
767-332/-332ER Aircraft; (iv) 24 model 767-432ER Aircraft; and (v) 10 model
777-232IGW Aircraft.
Option Exercise Date is defined as that date on which Customer
exercises an Option by providing Boeing with a Notice of Option Exercise.
Optional Feature is defined as an alternative addition or
deletion to a basic feature.
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Optional Features Price is defined as the price for optional
features selected by Customer for a specific model of Aircraft described in
Exhibit A to the applicable Purchase Agreements.
Performance Guarantees are defined as the written guarantees
in a Purchase Agreement or Letter Agreement regarding the operational
performance of an Aircraft.
Purchase Agreement means a purchase agreement for each of the
model (a) 737-632/-732/-832, (b) 757-232, (c) 767-332ER/-332, (d) 767-432ER, and
(e) 777-2321GW Aircraft.
Rolling Option is defined as a right granted to Customer to
purchase an Aircraft of a designated model with an estimated delivery position
from a pool of such Aircraft, exercisable in accordance with the terms and
conditions of Article 3 to this AGTA.
Rolling Option Aircraft is defined as those Aircraft listed in
Table 2 to the applicable Purchase Agreement and are initially: (i) 280 model
737 Aircraft; (ii) 90 model 757 Aircraft; (iii) 19 model 767-300 Aircraft; and
(iv) 25 model 767-400 Aircraft.
Scheduled Delivery Month is defined as the scheduled month of
delivery for an Aircraft.
Standard Advance Payment Schedule is defined as the schedule
of Advance Payments as set forth in Table 1 to the applicable Purchase
Agreement.
Taxes are defined as all taxes, fees, charges, or duties and
any interest thereon, including, but not limited to sales, use, customs, value
added taxes, excise, transfer and similar taxes imposed by any domestic or
foreign taxing authority, arising out of or in connection with the performance
of the applicable Purchase Agreement or the sale, delivery, transfer or storage
of any Aircraft, BFE, or other things furnished under the applicable Purchase
Agreement.
Term is defined as the period from the Execution Date through
December 31, 2017.
1.2 Aircraft. Boeing will manufacture and sell to Customer and
Customer will purchase from Boeing Firm Aircraft under Purchase Agreements that
incorporate the terms and conditions of this AGTA.
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1.3 Annual Fleet Plan Review. Customer and Boeing agree
to meet annually (commencing on a date to be established by mutual agreement) to
review Customer's projected fleet requirements and Boeing's projected production
plans.
Article 2. Price, Payment and Taxes.
2.1. Price.
2.1.1 Price of Aircraft. At Delivery, Customer
agrees to pay the Invoice Price for each Aircraft. The Invoice Price is
determined as follows:
(i) Calculate the Aircraft Basic Price.
(ii) Calculate the Aircraft Price.
(iii) *This confidential information has
been omitted and filed separately with the Commission.
2.1.2 Airframe Price. *This confidential
information has been omitted and filed separately with the Commission.
2.2 Price for Additional Aircraft. *This confidential
information has been omitted and filed separately with the Commission.
2.3 *This confidential information has been omitted and
filed separately with the Commission.
2.4. Advance Payments.
2.4.1 Calculation of Advance Payments. *This
confidential information has been omitted and filed separately with the
Commission.
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*This confidential information has been omitted and
filed separately with the Commission.
2.4.3 Standard Advance Payment Schedule.
2.4.3.1 All Aircraft except 777-232IGW:
At Execution Date 1%
24 months before delivery 4%
21 months before delivery 5%
18 months before delivery 5%
12 months before delivery 5%
9 months before delivery 5%
6 months before delivery 5%
Total 30%
2.4.3.2 777-232IGW:
At Execution Date 1%
24 months before delivery 4%
21 months before delivery 5%
18 months before delivery 5%
15 months before delivery 5%
12 months before delivery 5%
9 months before delivery 5%
6 months before delivery 5%
Total 35%
2.4.4 *This confidential information has been omitted
and filed separately with the Commission.
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*This confidential information has been omitted and filed
separately with the Commission.
2.4.5 *This confidential information has been
omitted and filed separately with the Commission.
2.4.6 *This confidential information has been
omitted and filed separately with the Commission.
2.4.7 *This confidential information has been
omitted and filed separately with the Commission.
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2.4.8 *This confidential information has been
omitted and filed separately with the Commission.
2.4.9 *This confidential information has been
omitted and filed separately with the Commission.
2.5 *This confidential information has been
omitted and filed separately with the Commission.
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*This confidential information has been omitted and filed
separately with the Commission.
2.6 Payment at Delivery. *This confidential information
has been omitted and filed separately with the Commission.
2.7 Form of Payment. Customer will make all payments to Boeing
by deposit of United States Dollars in immediately available funds in a bank
account in the United States designated by Boeing.
2.8 Taxes.
2.8.1 Taxes. Customer agrees to pay, and to
defend, indemnify and hold Boeing harmless from all Taxes imposed on Boeing or
on Customer by any government except to the extent that any such Tax is measured
by the net or gross income or excess profits, receipts, capital, franchise, net
worth or business privilege Taxes of Boeing. If Boeing has reason to believe
that any such tax is applicable, Boeing shall separately state the amount of
such tax on its invoice. Such Taxes shall exclude any and all penalties, fines,
similar fees or other assessments imposed by a country or governing body as a
result of any violation of competition or antitrust law.
2.8.2 Contests. If a claim is made against any
party for Taxes with respect to which the other party is liable for a payment or
indemnity hereunder, the party making such claim will promptly give the other
notice in writing within 15 days of receipt of such claim; provided however,
that failure to give notice will not relieve any party of its obligations
thereunder. Either party may, in good faith, with due diligence and at its
expense, contest (or permit the other party to contest in the name of such
party) the validity, applicability, or amount of such Taxes. If either party
receives any refund on account of any suit or action for a Tax for which the
other party has provided funds hereunder, such party shall promptly, but in any
event within thirty (30) days of receipt of such refund, remit such refund to
the other party, together with any interest refunded on such amount.
2.8.3 Reimbursement of Boeing. Customer will
promptly reimburse Boeing on demand, net of additional Taxes thereon, for any
Taxes that are imposed on and paid by Boeing or for which Boeing is responsible
for collecting.
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Article 3. Option Aircraft.
3.1 Options.
3.1.1 Grant of Options. Boeing hereby grants to
Customer Options for the Option Aircraft.
3.1.2 Exercise of Option. Customer may exercise
an Option by providing Boeing with a Notice of Option Exercise no later than *
prior to the first day of the Scheduled Delivery Month for the Aircraft. Each
date on which Customer provides Boeing with a notice of option exercise is an
Option Exercise Date, which is in the form of Appendix 8 of the AGTA. For the
exercise of each 737-632/-732/-832 Option, the Notice of Option Exercise shall
indicate Customer's selection of minor model.
3.1.3 Effect of Exercise. On each Option Exercise
Date:
(i) the Option Aircraft is converted to a Firm
Aircraft;
(ii) the Aircraft Basic Price for the Aircraft
will be revised in accordance with Article 3.3 below and updated Tables 1, 2 and
3 to the applicable Purchase Agreement will be furnished to Customer;
(iii) the Aircraft is subject to all of the terms
and conditions of this AGTA and the Purchase Agreements that apply to Firm
Aircraft except for any Credits that are specifically set forth for Option
Aircraft; and
*This confidential information has been omitted and
filed separately with the Commission.
3.1.4 *This confidential information has been
omitted and filed separately with the Commission.
3.1.5 Scheduled Delivery Month for Option
Aircraft. As of the Execution Date, the Scheduled Delivery Months for Option
Aircraft are set forth in Table 2 to the applicable Purchase Agreement. *
*This confidential information has been omitted and filed separately with the
Commission.
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3.1.6 Tables. The Delivery Month, the Advance
Payment Base Price and the Advance Payment Schedule for the Option Aircraft are
listed in Table 2 to the applicable Purchase Agreement.
3.1.7 Differentiation of Option Aircraft from Firm
Aircraft. When an Option is exercised and becomes a Firm Aircraft, such Aircraft
will be denoted with an asterisk (*) in a column entitled "O/P" between the
"Delivery Date Column" and the "Number of Aircraft Column" in Table 1 to the
applicable Purchase Agreement.
3.1.8 *This confidential information has been
omitted and filed separately with the Commission.
3.2. Rolling Options.
3.2.1 Grant of Options. Boeing hereby grants to
Customer the right to convert Rolling Options to Options at the times and in the
manner set forth in Articles 3.1.3 and 3.1.4.
3.2.2 Conversion of Rolling Options to Options.
*This confidential information has been omitted and filed separately with the
Commission.
3.2.3 Advance Payment Base Price. *This
confidential information has been omitted and filed separately with the
Commission.
3.3 Price.
3.3.1 Airframe Price. *This confidential
information has been omitted and filed separately with the Commission.
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3.3.2 Optional Features. The Airframe Price for
Option Aircraft will be adjusted to include the follow-on price for any
applicable Optional Features previously selected by Customer that have been
incorporated into the baseline Aircraft configuration. In addition, prices for
newly selected Optional Features for Option Aircraft will be those in effect as
of the Option Exercise Date.
3.3.3 Escalation Adjustments. The Airframe and
Optional Features Prices for Option Aircraft are escalated on the same basis as
the Firm Aircraft.
3.3.4 Engine Price Adjustments. Except for model
737 Aircraft, the Engine Price for the Option Aircraft will be adjusted to the
engine manufacturer's then-current prices as of the Option Exercise Date. In
addition, the engine escalation provisions listed in Exhibit EE1 to the
applicable Purchase Agreement (except for model 737 Aircraft) will be revised if
amended by the engine manufacturer prior to the Option Exercise Date.
3.4 Payment. *This confidential information has
been omitted and filed separately with the Commission.
3.5 Amendments to Tables. From time to time
Boeing and Customer agree to update affected tables and attachments to reflect,
among other things, (i) delivery of Firm Aircraft, (ii) exercise and lapse of
Options, (iii) conversion of Rolling Options, and (iv) re-assignment of
Scheduled Delivery Months under Articles 4 and 5; provided, however that failure
to enter into such amendments shall not affect any of Customer's and Boeing's
rights and obligations under this Agreement or the Purchase Agreements.
3.6 Aircraft Configuration. The Option Aircraft
will be configured to the latest Detail Specification in effect for the Firm
Aircraft on the Option Exercise Date.
3.7 Performance Guarantees. Upon notification
of Option Exercise, Boeing will, if necessary, update the Performance Guarantees
to reflect changes in configuration in accordance with Articles 6 and 7 of the
AGTA.
Article 4. *This confidential information has been omitted and filed
separately with the Commission.
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*This confidential information
has been omitted and filed
separately with the Commission.
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*This confidential information
has been omitted and filed
separately with the Commission.
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*This confidential information
has been omitted and filed
separately with the Commission.
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*This confidential information
has been omitted and filed
separately with the Commission.
Article 5. *This confidential information has been omitted and filed
separately with the Commission.
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*This confidential information
has been omitted and filed
separately with the Commission.
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*This confidential information
has been omitted and filed
separately with the Commission.
Article 6. Regulatory Requirements and Certificates.
6.1 Certificates. Boeing will manufacture each Aircraft to
conform to the appropriate Type Certificate issued by the United States Federal
Aviation Administration (FAA) for the specific model of Aircraft and will obtain
from the FAA and furnish to Customer at Delivery of each Aircraft a Standard
Airworthiness Certificate issued pursuant to Part 21 of the Federal Aviation
Regulations. Boeing will assist Customer prior to Delivery in obtaining other
certificates required by Customer to operate the Aircraft; however, Boeing shall
not be obligated to obtain any other certificates or approvals for the Aircraft.
6.2 FAA or Applicable Regulatory Authority Manufacturer
Changes.
*This confidential information
has been omitted and filed
separately with the Commission.
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*This confidential information has been omitted and
filed separately with the Commission.
6.3 FAA Operator Changes. Boeing will deliver each Aircraft
with Operator Changes incorporated or, at Boeing's option, with suitable
provisions for the incorporation of such Operator Changes. Customer will pay
Boeing for each Operator Change incorporated in each Aircraft as set forth in
(a) and (b) below:
*This confidential information
has been omitted and filed
separately with the Commission.
6.4 Delay and Change Order. If Delivery of any Aircraft is
delayed by the incorporation in such Aircraft of any Change required to be made
under Articles 6.2 or 6.3 such delay shall be an Excusable Delay within the
meaning of Article 10. Boeing shall issue and Customer shall accept a Change
Order reflecting any Change required to be made under Article 6.2 or 6.3, which
Change Order shall set forth in detail the particular Changes to be made therein
and the effect, if any, of such changes on design, performance, weight, balance,
time of Delivery and the Aircraft Basic Price of the affected Aircraft.
Notwithstanding the provisions of Article 7 of this AGTA, any Change Orders
issued pursuant to this Article 6.4 need not be signed by Customer and shall be
deemed to be accepted by Customer and effective upon the date of Boeing's
transmittal of such Change Order.
6.5 Discontinuance. If the use of either of the Certificates
identified in Article 6.1 is discontinued during the performance of this
Agreement, thereafter reference to such discontinued Certificate shall be deemed
a reference to any other certificate or instrument issued by the FAA which
corresponds to such Certificate or, if there should not be any such other
certificate or instrument, then Boeing shall be deemed to have obtained such
discontinued Certificate or Certificates upon demonstrating that each Aircraft
complies substantially with the performance guarantees set forth in the Detail
Specification.
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Article 7. Detail Specification; Changes.
7.1 Change Order. The Detail Specification for an applicable
Aircraft model may, by mutual agreement, be amended from time to time by Change
Order or other written agreement, which shall set forth in detail the particular
changes to be made therein, and the effect, if any, of such changes on design,
performance, weight, balance, time of Delivery and basic price of the Aircraft.
Such Change Orders and other written agreements shall be signed on behalf of
Customer and Boeing by their respective duly authorized representatives.
7.2 Detail Specification Changes. All changes which revise
the Detail Specification shall be made in accordance with the procedures
hereinafter set forth.
7.2.1 Master Change/Other Changes. The Detail
Specification may be revised by mutual agreement of the parties by Master Change
(MC), Production Record Revisions (PRR), Rapid Revisions (RR), or other change
processes (which are acceptable to the FAA) which may be requested by Customer
or initiated by Boeing, as appropriate. Each change shall be proposed to
Customer by Boeing and shall describe the change to be accomplished, establish
the Aircraft effectivity, and the effect, if any, on weight, and the Aircraft
Basic Price . When signed by duly authorized representatives of both parties,
such changes shall be binding on both parties and may be released immediately by
Boeing to production. After acceptance of the change by Customer, Boeing will
provide Specification Revision Inserts (SRI) as addendum sheets to maintain the
currency of the Detail Specification. Periodically, such agreed changes shall be
accumulated in formal Change Orders. A complete revision to the Detail
Specification will be issued concurrently with the Change Order. The revision
will incorporate the SRIs. As the Detail Specification revisions are predicated
on incorporating accepted changes, formal release of the revised Detail
Specification shall be independent of formal acceptance of the Change Order.
7.2.2 Development Change. Development Changes are those deemed necessary to
correct defects, improve the Aircraft, prevent delay, or insure compliance with
this Agreement but which have no materially adverse effect on the design,
replaceability, interchangeability, weight, balance or functional
characteristics of the Aircraft. The Detail Specification may be revised by
Boeing without Customer's consent to incorporate Development Changes (DC's)
where such changes do not adversely affect price, Delivery, guaranteed weight or
guaranteed performance of the Aircraft or interchangeability, or replaceability
or functional characteristics of Spare Parts; *This confidential information has
been omitted and filed separately with the Commission.
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*This confidential information has been omitted and filed
separately with the Commission.
Article 8. Representatives, Inspection, Demonstration Flights, Test
Data, and Performance Guarantee Compliance.
8.1 Office Space. Commencing with the date of this AGTA and
continuing until the last Delivery of an Aircraft, Boeing shall furnish, without
additional charge, suitable office space and equipment in or conveniently
located with respect to its plant for the accommodation of up to five (5)
personnel of Customer.
8.2 Inspection. Boeing's manufacture of the Aircraft, and all
components obtained by Boeing therefor, shall at all reasonable times be open to
inspection by any duly authorized representatives of Customer. However, if
access to any part of Boeing's plant where manufacture is in progress or
components are stored is restricted by the United States Government, Boeing
shall be allowed a reasonable time to make the items available for inspection
elsewhere than in the restricted area. All inspections by Customer's
representatives shall be performed in such manner as not to unduly delay or
hinder manufacture or performance by Boeing.
8.3 Demonstration Flights. Each Aircraft shall be test flown
by Boeing for such periods as may be required to demonstrate to Customer the
functioning of the Aircraft and its equipment. Customer shall be permitted to
have a reasonable number of representatives participate in such flights as
observers.
8.4 Test Data; Performance Guarantee Compliance. Boeing shall
furnish to Customer, as soon as practicable, flight test data, obtained on an
aircraft of the type purchased hereunder, certified as correct by Boeing, to
evidence compliance with any performance guarantees set forth in the applicable
Purchase Agreement. Any performance guarantee shall be deemed to be met if
reasonable engineering interpretations and calculations based on such flight
test data establish that the Aircraft would, if actually flown, comply with such
guarantee.
8.5 Special Aircraft Test Requirements. Subject to Customer's
prior consent, Boeing may use the Aircraft for flight and ground tests prior to
Delivery if such tests are deemed necessary by Boeing.
(a) to obtain the certificates required under Article
6.1, and
(i) other aircraft of the type purchased
hereunder are not available for such tests, or
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(ii) special features incorporated in the Aircraft (but
not incorporated in other aircraft of the type purchased
hereunder) necessitate such tests, or
(iii) the Engines (as defined in Exhibit D to this AGTA)
to be installed on the Aircraft are of different
manufacture or type from those installed on other aircraft
of the type purchased hereunder; or
(b) to evaluate actual or contemplated changes for the
improvement of aircraft of the type purchased hereunder which may be requested
for incorporation by Customer, in production or by retrofit, in any Aircraft.
Customer shall accept Delivery of any Aircraft used for such flight and ground
tests without any reduction in price for depreciation or wear and tear resulting
therefrom.
Article 9. Delivery.
9.1 Notices of Delivery Dates. Boeing will notify Customer of
the approximate delivery date of each Aircraft at least sixty (60) days before
the approximate delivery date and again at least twenty-one (21) days before the
scheduled delivery date.
9.2 Place of Delivery. Each Aircraft shall be delivered at an
airport in the State of Washington selected by Boeing or at such alternate site
as may be mutually agreed upon in writing. If Delivery is made at an alternate
site, at Customer's request, Customer shall promptly reimburse Boeing for any
increased costs incurred by Boeing as a result thereof.
9.3 Documents of Title. Upon Delivery of and payment for each
Aircraft, Boeing shall deliver to Customer a bill of sale duly conveying to
Customer good title to such Aircraft free and clear of all liens, claims,
charges and encumbrances of every kind whatsoever, and such other appropriate
documents of title as Customer may reasonably request.
9.4 Delay. *This confidential information has been omitted
and filed separately with the Commission.
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Article 10. Excusable Delay.
10.1 Boeing Excusable Delay. Boeing will not be liable for any
delay beyond the Scheduled Delivery Month of an Aircraft or other performance
under a Purchase Agreement caused by (i) acts of God; (ii) war or armed
hostilities; (iii) government acts or priorities; (iv) fires, floods or
earthquakes; (v) strikes or labor troubles causing cessation, slowdown or
interruption of work; or (vi) any other cause to the extent such cause is beyond
Boeing's control and not occasioned by Boeing's fault or negligence. A delay
resulting from any such cause is defined as a Boeing Excusable Delay.
10.2 *This confidential information has been omitted and filed
separately with the Commission.
*This confidential information
has been omitted and filed
separately with the Commission.
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*This confidential information
has been omitted and filed
separately with the Commission.
10.6 Aircraft Damaged Beyond Repair. If an Aircraft is
destroyed or damaged beyond repair for any reason before Delivery, Boeing will
give written notice to Customer specifying the earliest month possible,
consistent with Boeing's other contractual commitments and production
capabilities in which Boeing can deliver a replacement. Customer will have
thirty (30) days from receipt of such notice to elect to have Boeing manufacture
a replacement aircraft under the same terms and conditions of purchase, except
that the calculation of the Escalation Adjustment will be based upon the
Scheduled Delivery Month in effect immediately prior to the date of such notice,
or, failing such election, the applicable Purchase Agreement will terminate with
respect to such Aircraft. Boeing will not be obligated to manufacture a
replacement aircraft if reactivation of the production line for the specific
model of aircraft would be required.
10.7 Consequences of Termination. Termination of a Purchase
Agreement with respect to an Aircraft under this Article will discharge all
obligations and liabilities of Customer with respect to such Aircraft. If
Customer terminates a Purchase Agreement with respect to an Aircraft under this
Article, Boeing may elect,
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by written notice to Customer within thirty (30) days of such termination, to
purchase from Customer any BFE related to the Aircraft covered by such Purchase
Agreement at the invoice prices paid, or contracted to be paid, by Customer.
*This confidential information has been omitted and filed
separately with the Commission.
Article 11. Risk Allocation/Insurance.
11.1 Title and Risk with Boeing.
11.1.1 Boeing's Indemnification of Customer. Until
transfer of title to an Aircraft to Customer, Boeing will indemnify and hold
harmless Customer and Customer's observers from and against all claims and
liabilities, including all expenses and attorneys' fees incident thereto or
incident to establishing the right to indemnification, for injury to or death of
any person(s), including employees of Boeing but not employees of Customer, or
for loss of or damage to any property, including an aircraft, arising out of or
in any way related to the operation of an Aircraft during all demonstration and
test flights conducted under the provisions of the applicable Purchase
Agreement, whether or not arising in tort or occasioned by the negligence of
Customer or any of Customer's observers.
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11.1.2 Definition of Customer. For the purposes of
this Article, Customer is defined as Delta Air Lines, Inc., its divisions,
subsidiaries, affiliates, the assignees of each, and their respective directors,
officers, employees, and agents.
11.2 Insurance.
11.2.1 Insurance Requirements. Customer will
purchase and maintain insurance acceptable to Boeing and will provide a
certificate of such insurance that names Boeing as an additional insured for any
and all claims and liabilities for injury to or death of any person or persons,
including employees of Customer but not employees of Boeing, or for loss of or
damage to any property, including any aircraft, arising out of or in any way
relating to Materials, training, services, or other things provided under
Exhibit B of this AGTA, which will be incorporated by reference into the
applicable Purchase Agreement, whether or not arising in tort or occasioned by
the negligence of Boeing, except with respect to legal liability to persons or
parties other than Customer or Customer's assignees arising out of an accident
caused solely by a product defect in an Aircraft. Customer will provide such
certificate of insurance at least thirty (30) days prior to the scheduled
delivery of the first Aircraft under a Purchase Agreement. The insurance
certificate will reference each Aircraft delivered to Customer pursuant to each
applicable Purchase Agreement. Annual renewal certificates will be submitted to
Boeing before the expiration of the policy periods. The form of the insurance
certificate, attached as Appendix 1, states the terms, limits, provisions, and
coverages required by this Article 11.2.1. The failure of Boeing to demand
compliance with this 11.2.1 in any year will not in any way relieve Customer of
its obligations hereunder nor constitute a waiver by Boeing of these
obligations.
11.2.2 Noncompliance with Insurance Requirements.
If Customer fails to comply with any of the insurance requirements of Article
11.2.1 or if any of the insurers fails to pay a claim covered by the insurance
or otherwise fails to meet any of insurer's obligations required by Appendix 1,
Customer will provide the same protection to Boeing as that required by Article
11.2.1 above.
11.2.3 Definition of Boeing. For purposes of this
article, Boeing is defined as The Boeing Company, its divisions, subsidiaries,
affiliates, assignees of each, and their respective directors, officers,
employees, and agents.
Article 12. Assignment, Resale or Lease.
12.1 Assignment. This AGTA and each applicable Purchase
Agreement are for the benefit of the parties and their respective successors and
assigns. No rights or duties of either party may be assigned or delegated, or
contracted to be assigned or delegated, without the prior written consent of the
other party, except:
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12.1.1 Either party may assign its interest to a
corporation that (i) results from any merger, reorganization or acquisition of
such party and (ii) acquires substantially all the assets of such party;
12.1.2 Boeing may assign its rights to receive
money; and
12.1.3 Boeing may assign any of its rights and
duties to any wholly-owned subsidiary of Boeing.
12.1.4 Boeing may assign any of its rights and
duties with respect to Part 1, Articles 1, 2, 4 and 5 of Exhibit B, Customer
Support Document to the AGTA, to FlightSafety Boeing Training International
L.L.C.
12.2 Transfer by Customer at Delivery. Boeing will take any
requested action reasonably required for the purpose of causing an Aircraft, at
time of Delivery, to be subject to an equipment trust, conditional sale, lien,
or other arrangement for Customer to finance the Aircraft. However, no such
action will require Boeing to divest itself of title to or possession of the
Aircraft until Delivery of and payment for the Aircraft. A sample form of
assignment acceptable to Boeing is attached as Appendix 2.
12.3 Sale or Lease by Customer After Delivery. If, following
Delivery of an Aircraft, Customer sells or leases the Aircraft (including any
sale and lease-back for financing purposes), all of Customer's rights with
respect to the Aircraft under the applicable Purchase Agreement will inure to
the benefit of the purchaser or lessee of such Aircraft, effective upon Boeing's
receipt of the written agreement of the purchaser or lessee, in a form
satisfactory to Boeing, to comply with all applicable terms and conditions of
the applicable Purchase Agreement. Sample forms of agreement acceptable to
Boeing are attached as Appendices 3 and 4.
12.4 Notice of Sale or Lease After Delivery. Customer will
give notice to Boeing as soon as practicable of the sale or lease of an Aircraft
including in the notice the name of the entity or entities with title and/or
possession of such Aircraft.
12.5 Exculpatory Clause in Post-Delivery Sale or Lease. If,
following the Delivery of an Aircraft, Customer sells or leases such Aircraft
and obtains from the transferee any form of exculpatory clause protecting
Customer from liability for loss of or damage to the Aircraft, and/or related
incidental or consequential damages, including without limitation loss of use,
revenue, or profit, Customer shall obtain for Boeing the purchaser's or lessee's
written agreement to be bound by terms and conditions substantially as set forth
in Appendix 5. This Article 12.5 applies only if purchaser or lessee has not
provided to Boeing the written agreement described in Article 12.3 above.
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12.6 Appointment of Agent - Warranty Claims. If, following
Delivery of an Aircraft, Customer appoints an agent to act directly with Boeing
for the administration of claims relating to the warranties under the applicable
Purchase Agreement, Boeing will deal with the agent for that purpose, effective
upon Boeing's receipt of the agent's written agreement, in a form satisfactory
to Boeing, to comply with all applicable terms and conditions of the applicable
Purchase Agreement. A sample form of agreement acceptable to Boeing is attached
as Appendix 6.
12.7 No Increase in Boeing Liability. No action taken by
Customer or Boeing relating to the resale or lease of an Aircraft or the
assignment of Customer's rights under the applicable Purchase Agreement will
subject Boeing to any liability beyond that in the applicable Purchase Agreement
or modify in any way Boeing's obligations under the applicable Purchase
Agreement.
Article 13. Termination for Certain Events.
13.1 Reciprocal Termination Rights. Upon the occurrence
of any of the following, a party may terminate, by giving written notice to the
other party, any Purchase Agreement with respect to any undelivered Aircraft
covered by such Purchase Agreement:
(i) The other party ceases doing business as a going
concern, suspends all or substantially all of its
business operations, makes an assignment for the
benefit of creditors, generally does not pay its
debts as they become due or admits in writing its
inability to pay its debts; or
(ii) The other party petitions for or acquiesces in
the appointment of any receiver, trustee or similar
officer to liquidate or conserve its business or any
substantial part of its assets; commences any legal
proceeding such as bankruptcy, reorganization,
readjustment of debt, dissolution or liquidation
available for the relief of financially distressed
debtors; or becomes the object of any such
proceeding, unless the proceeding is dismissed or
stayed within a reasonable period, not to exceed
sixty (60) days.
13.2 *This confidential information has been omitted and
filed separately with the Commission.
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*This confidential information has been omitted and filed
separately with the Commission.
13.3 *This confidential information has been omitted and
filed separately with the Commission.
13.4 *This confidential information has been omitted and
filed separately with the Commission.
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Article 14. Notices.
All notices required by any applicable Purchase Agreement will be in English,
will be effective on the date of receipt and may be transmitted by any customary
means of written communication addressed as follows:
Customer: Delta Air Lines, Inc.
Hartsfield Atlanta International Airport
1030 Delta Blvd.
Atlanta, Georgia 30320
Attention: General Manager
with a copy to: Purchasing
Delta Air Lines, Inc.
Hartsfield Atlanta International Airport
1030 Delta Blvd.
Atlanta, Georgia 30320
Attention: General Counsel
Boeing: Boeing Commercial Airplane Group
P.O. Box 3707
Seattle, Washington 98124-2207
U.S.A.
Attention: Vice President - Contracts
Mail Stop 75-38
With prior written notice, either party may revise its address.
Article 15. Confidentiality.
15.1 The AGTA and the Purchase Agreements contain confidential
commercial and financial information. The parties agree to treat the AGTA and
the Purchase Agreements as confidential and will not, without the prior written
consent of the other party, disclose the AGTA or any Purchase Agreement or any
information contained therein to any other party or entity. Notwithstanding the
foregoing, either party may disclose the AGTA and any Purchase Agreement to the
extent required by any government regulatory agency or court having jurisdiction
over the disclosing
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party. In such event, the disclosing party shall, immediately upon receipt of
the request or demand, notify the other party of such request or demand.
15.2 Customer is, or may be, required, pursuant to this AGTA
or a Purchase Agreement, to provide documents, drawings, and other materials to
Boeing which contain, convey, or embody proprietary, confidential, or trade
secret information (Customer Proprietary Information) belonging to Customer
(Customer Proprietary Materials). Boeing will treat all Customer Proprietary
Materials and all Customer Proprietary Information in confidence and use and
disclose the same only as specifically authorized in this AGTA or in accordance
with other specific authorization from Customer. All Customer Proprietary
Materials and Customer Proprietary Information will remain the property of
Customer.
Article 16. Miscellaneous.
16.1 Government Approval. Boeing and Customer will assist
each other in obtaining any governmental consents or approvals required to
effect certification and sale of Aircraft under the applicable Purchase
Agreement.
16.2 Headings. Article and paragraph headings used in this
AGTA and in any Purchase Agreement are for convenient reference only and are not
intended to affect the interpretation of this AGTA or any Purchase Agreement.
16.3 Dispute Resolution. If any dispute arises between
Boeing and Customer in respect to this AGTA or the Purchase Agreements, Boeing
and Customer hereby agree (except as provided in paragraph 1 of Exhibit F) to
resolve such disputes in the manner set forth in Exhibit F hereto.
16.4 GOVERNING LAW. THIS AGTA AND ANY PURCHASE AGREEMENT
WILL BE GOVERNED BY THE LAW OF THE STATE OF WASHINGTON, U.S.A., EXCLUSIVE OF
WASHINGTON'S CONFLICTS OF LAWS PRINCIPLES.
16.5 Waiver/Severability. Failure by either party to enforce
any provision of this AGTA or any Purchase Agreement will not be construed as a
waiver. If any provision of this AGTA or any provision of any Purchase Agreement
are held unlawful or otherwise ineffective by a court of competent jurisdiction,
the remainder of the AGTA or the applicable Purchase Agreement will remain in
effect.
16.6 Survival of Obligations. The Articles and Exhibits of
this AGTA including but not limited to those relating to insurance, DISCLAIMER
AND RELEASE and the EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES will survive
termination or cancellation of any Purchase Agreement or part thereof.
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16.7 *This confidential information has been omitted and
filed separately with the Commission.
DATED AS OF October 21, 1997
-----------------
DELTA AIR LINES, INC.
By /s/ Leo F. Mullin
-------------------------------------
Its President and Chief Executive Officer
-------------------------------------
THE BOEING COMPANY
By /s/ R. B. Woodard
-------------------------------------
Its President
-------------------------------------
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EXHIBIT A
TO
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-DAL
BETWEEN
THE BOEING COMPANY
AND
DELTA AIR LINES, INC.
BUYER FURNISHED EQUIPMENT PROVISIONS DOCUMENT
A
AGTA-DAL i
37
BUYER FURNISHED EQUIPMENT PROVISIONS DOCUMENT
1. General.
Certain equipment to be installed in the Aircraft is furnished to
Boeing by Customer at Customer's expense. This equipment is designated "Buyer
Furnished Equipment" (BFE) and is listed in the Detail Specification. Boeing
will provide to Customer a BFE Requirements On-Dock/Inventory Document (BFE
Document) or an electronically transmitted BFE Report which may be periodically
revised, setting forth the items, quantities, on-dock dates and shipping
instructions relating to the in sequence installation of BFE as described in the
applicable Supplemental Exhibit BFE/CDSPE/SPE/CSE to this Exhibit A in the
applicable Purchase Agreement
2. Supplier Selection.
Customer will:
2.1 Select and notify Boeing of the suppliers of BFE items by those
dates appearing in Supplemental Exhibit BFE/CDSPE/SPE/CSE to the applicable
Purchase Agreement.
2.2 Meet with Boeing and such selected BFE suppliers promptly after
such selection to:
2.2.1 complete BFE configuration design
requirements for such BFE; and
2.2.2 confirm technical data submittal dates for
BFE certification.
3. Customer's Obligations.
3.1 Customer agrees to comply with and cause the supplier
to comply with the provisions of the BFE Document or BFE Report including but
not limited to;
3.1.1 delivery of technical data (in English) to
Boeing as required to support installation and FAA certification in accordance
with the schedule provided by Boeing or as mutually agreed upon during the BFE
meeting referred to above;
3.1.2 delivery of BFE including production and/or
flight training spares to Boeing in accordance with the quantities and schedule
provided therein;
A-1
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3.1.3 assuring that all BFE Aircraft Software is
delivered in compliance with D6-55562-8, BCAG Standards for Loadable Systems;
and
3.1.4 delivery of appropriate quality assurance
documentation to Boeing as required with each BFE part (D6-56586, "BFE Product
Acceptance Requirements");
3.2 Customer agrees to authorize Boeing to discuss all details of
the BFE directly with the BFE suppliers so long as Boeing's actions does not
affect the design (including selection of materials) weight, or price of the
BFE/CDSPE/SPE/CSE. Any changes to on-dock dates as a result of changes to
Boeing's aircraft production schedule will not be communicated to BFE suppliers
without Customer's prior consent.
3.3 Customer agrees to authorize Boeing to conduct or delegate to
the supplier quality source inspection and supplier hardware acceptance of BFE
at the supplier location and;
3.3.1 require supplier's contractual compliance
to Boeing defined source inspection and supplier delegation programs, including
availability of adequate facilities for Boeing resident personnel; and
3.3.2 assure that Boeing identified supplier's
quality systems be approved to Boeing document D1-9000.
3.4 Customer agrees to obtain from supplier a non-exclusive,
perpetual, royalty-free, irrevocable license for Boeing to copy BFE Aircraft
Software. The license is needed to enable Boeing to load the software copies in
(i) the aircraft's mass storage device (MSD), (ii) media (e.g., diskettes,
CD-ROMs, etc.), (iii) the BFE hardware and/or (iv) an intermediate device or
other media to facilitate copying of the BFE Aircraft Software into the
aircraft's MSD, BFE hardware and/or media, including media as Boeing may deliver
to Customer with the aircraft.
3.5 Customer agrees to grant Boeing a license, extending
the same rights set forth in paragraph 3.4 above, to copy: a) BFE Aircraft
Software and data Customer has modified and/or b) other software and data
Customer has added to the BFE Aircraft Software.
3.6 Customer agrees to provide necessary field service
representation reasonably required at Boeing's facilities to support Boeing on
all issues related to the installation and certification of BFE.
3.7 Customer agrees to deal directly with all BFE suppliers to
obtain overhaul data, provisioning data, related product support documentation
and any warranty provisions applicable to the BFE.
A-2
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3.8 Customer agrees to work closely with Boeing and the BFE
suppliers to resolve any difficulties, including defective equipment, that
arise.
3.9 Customer agrees to be responsible for modifying, adjusting
and/or calibrating BFE as required for FAA approval and for all reasonable
related expenses.
3.10 Customer agrees to warrant that the BFE will meet the
requirements of the Detail Specification.
3.11 Customer agrees to be responsible for ensuring that all BFE
provided pursuant to this Exhibit A is FAA certifiable at time of Aircraft
delivery, or for obtaining waivers from the applicable regulatory agency for
non-FAA certifiable equipment.
4. Boeing's Obligations.
Other than as set forth below and without charge to Customer,
Boeing will provide for the installation of and install the BFE and obtain
certification of the Aircraft with the BFE installed.
5. Nonperformance by Customer.
If Customer's nonperformance of obligations in this Exhibit or in
the BFE/CDSPE/SPE/CSE Document causes a delay in the delivery of the Aircraft or
causes Boeing to perform out-of-sequence or additional work, Customer will
reimburse Boeing for all reasonable expenses associated with such
out-of-sequence or additional work and be deemed to have agreed to any such
delay in Aircraft delivery. Boeing shall provide reasonable substantiation of
such claim to Customer at Customer's request. In addition Boeing will have the
right to:
5.1 provide and install specified equipment or suitable
alternate equipment and increase the price of the Aircraft accordingly; and/or
5.2 deliver the Aircraft to Customer without the BFE
installed.
5.3 Customer Excusable Delay.
Customer shall not be responsible for nor be deemed to be in default under
the provisions of this Exhibit A on account of any delay or failure in delivery
of any item of BFE, technical data or other information required to be furnished
by Customer herein due to any of the causes referred to in Article 10 of the
AGTA, or due to any other cause to the extent it is beyond Customer's control or
not occasioned by Customer's fault or negligence. In the event of any such delay
or failure in delivery, said failure or delay shall, to the extent it delays
performance of any act to be performed by Boeing under the Purchase Agreements,
extend the date by which such act is to be performed.
A-3
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6. Return of Equipment.
Any of the BFE delivered by Customer to Boeing for the Aircraft and not
incorporated in an Aircraft shall be redelivered to Customer by Boeing (in
accordance with Customer's instruction) at Seattle, Washington, upon or after
delivery of the last Aircraft to be delivered hereunder, in as good condition as
when delivered by Customer to Boeing, reasonable wear and tear excepted.
7. Title and Risk of Loss.
Title to BFE will at all times remain with Customer or other owner.
Boeing will have only such liability for BFE, including risk of loss, as a
bailee for mutual benefit would have, but will not be liable for loss of use.
8. Indemnification of Boeing.
Customer hereby indemnifies and holds harmless Boeing from and
against all claims and liabilities, including costs and expenses (including
attorneys' fees) incident thereto or incident to successfully establishing the
right to indemnification, for injury to or death of any person or persons,
including employees of Customer but not employees of Boeing, or for loss of or
damage to any property, including any Aircraft, arising out of or in any way
connected with any nonconformance or defect in any BFE and whether or not
arising in tort or occasioned by the negligence of Boeing. This indemnity will
not apply with respect to any nonconformance or defect caused solely by Boeing's
installation of the BFE.
9. Patent Indemnity.
Customer hereby indemnifies and holds harmless Boeing from and
against all claims, suits, actions, liabilities, damages and costs arising out
of any actual or alleged infringement of any patent or other intellectual
property rights by BFE or arising out of the installation, sale or use of BFE by
Boeing.
10. Definitions.
For the purposes of the above indemnities, the term "Boeing"
includes The Boeing Company, its divisions, subsidiaries and affiliates, the
assignees of each, and their directors, officers, employees and agents.
A-4
AGTA-DAL
41
EXHIBIT B
TO
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-DAL
BETWEEN
THE BOEING COMPANY
AND
DELTA AIR LINES, INC.
CUSTOMER SUPPORT DOCUMENT
This document contains:
Part 1: Maintenance and Flight Training Programs;
Operations Engineering Support
Part 2: Field Services and Engineering Support
Services
Part 3: Technical Information and Materials
Part 4: Alleviation or Cessation of Performance
Part 5: Protection of Proprietary Information and
Proprietary Materials
B
i
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GENERAL STATEMENT REGARDING
CUSTOMER SUPPORT
Any and all services, support and Materials provided by Boeing to
Customer pursuant to this AGTA, Purchase Agreements, or Letter Agreements shall
be governed by the terms and conditions of this AGTA. To the extent the terms
and conditions of a Customer Services General Terms Agreement ("CSGTA") agreed
between Boeing and Customer conflict with the terms and conditions of this AGTA,
the terms of this AGTA shall control.
B-1
AGTA-DAL
43
CUSTOMER SUPPORT DOCUMENT
PART 1: BOEING MAINTENANCE AND FLIGHT TRAINING
PROGRAMS; OPERATIONS ENGINEERING SUPPORT
1. Boeing Training Programs.
1.1 Boeing will provide, at no charge to Customer, maintenance training
and flight training programs ("Training") to support the introduction of a
specific model of aircraft into service. The training programs will consist of
general and specialized courses and are more specifically described in a
Supplemental Exhibit to the applicable purchase agreement.
1.2 Boeing will conduct all training at Boeing's training facility in
the Seattle area unless otherwise agreed.
1.3 All Training will be presented in the English language. If
translation is required, Customer will provide interpreters.
1.4 Customer will be responsible for all living expenses of Customer's
personnel. Boeing will transport Customer's personnel between their local
lodging and Boeing's training facility.
1.5 If requested by Customer, Boeing will conduct the classroom
portions of the maintenance and flight training (except for the Performance
Engineer training courses) at a mutually acceptable alternate training site,
subject to the following conditions:
1.5.1 Customer will provide acceptable classroom space, simulators
(as necessary for flight training) and training equipment required to present
the courses;
1.5.2 Customer will pay Boeing's then-current per diem charge for
each Boeing instructor for each day, or fraction thereof, that the instructor is
away from the Seattle area, including travel time;
1.5.3 Customer will reimburse Boeing for the actual costs of
round-trip transportation for Boeing's instructors and the shipping costs of
training Materials between the Seattle area and the alternate training site. At
Customer's option, Customer may provide such transportation;
1.5.4 Customer will be responsible for all taxes, fees, duties,
licenses, permits and similar expenses incurred by Boeing and its employees as a
result of Boeing's providing training at the alternate site or incurred as a
result of Boeing providing revenue service training; and
B-1-1
AGTA-DAL
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1.5.5 Those portions of training that require the use of
training devices not available at the alternate site will be conducted at
Boeing's facility or at the alternate site.
2. Training Planning Conferences.
Customer and Boeing will conduct planning conferences approximately 12
months before the scheduled delivery month of the first aircraft of a model to
define and schedule the Training. Boeing shall not charge Customer to conduct or
participate in such planning conferences.
3. Operations Engineering Support.
3.1 As long as an aircraft purchased by Customer from Boeing is
operated by Customer, Boeing will provide at no charge to Customer operations
engineering support which shall include:
3.1.1 assistance with the analysis and preparation of
performance data to be used in establishing operating practices and policies for
Customer's operation of aircraft;
3.1.2 assistance with interpretation of the Minimum Equipment
List ("MEL"), the definition of the Configuration Deviation List ("CDL") and the
analysis of individual aircraft performance;
3.1.3 assistance with solving operational problems associated
with delivery and route-proving flights;
3.1.4 information regarding significant service items
relating to aircraft performance or flight operations; and
3.1.5 if requested by Customer, operations engineering support
during an aircraft ferry flight.
4. General Terms and Conditions.
4.1 Boeing flight instructor personnel will not be required to work
more than 5 days per week, or more than 8 hours in any one 24-hour period, of
which not more than 5 hours per 8-hour workday will be spent in actual flying.
These foregoing restrictions will not apply to ferry assistance or revenue
service training services, which will be governed by FAA rules and regulations.
4.2 Normal Line Maintenance is defined as line maintenance that Boeing
might reasonably be expected to furnish for flight crew training at Boeing's
facility, and will include ground support and aircraft storage in the open, but
will not include
B-1-2
AGTA-DAL
45
provision of spare parts. Boeing will provide Normal Line Maintenance services
for any aircraft while the aircraft is used for flight crew training based at
Boeing's facility (see article 4.3 below). Customer will provide such services
if flight crew training is conducted elsewhere. Regardless of the location of
such training, Customer will be responsible for providing all maintenance items
(other than those included in Normal Line Maintenance) required during the
training, including, but not limited to, fuel, oil, landing fees and spare
parts.
4.3 If the flight training is based at Boeing's facility, several
airports in the states of Washington, Montana and Oregon, as well as the
services of the fixed base operator at Grant County Airport at Moses Lake,
Washington, may be used. Unless otherwise agreed in the flight training planning
conference, it will be Customer's and Boeing's joint responsibility to make
arrangements for the use of such airports.
4.4 If Boeing agrees to make arrangements on behalf of Customer for the
use of airports for flight training, Boeing will pay on Customer's behalf any
landing fees charged by any airport used in conjunction with the flight
training. At least 30 days before flight training, Customer will provide Boeing
an open purchase order against which Boeing will invoice Customer for any
landing fees Boeing paid on Customer's behalf. The invoice will be submitted to
Customer approximately 60 days after flight training is completed, when all
landing fee charges have been received and verified. Customer will pay the
amount of such invoice to Boeing within 30 days of the date of the invoice.
4.5 If requested by Boeing, and agreed by Customer, in order to provide
the flight training or ferry flight assistance, Customer will make available to
Boeing an aircraft after delivery to familiarize Boeing instructor or ferry
flight crew personnel with such aircraft. If flight of the aircraft is required
for any Boeing instructor or ferry flight crew member to maintain an FAA license
for flight proficiency or landing currency, Boeing will be responsible for the
costs of fuel, oil, landing fees and spare parts attributable to that portion of
the flight.
4.6 Unless mutually agreed by Boeing and Customer, if any part of the
training described in Article 1.1 of this Exhibit is not used by Customer within
48 months after Delivery of the first Aircraft under the relevant Purchase
Agreement, Boeing will not be obligated to provide such training.
B-1-3
AGTA-DAL
46
CUSTOMER SUPPORT DOCUMENT
PART 2: FIELD AND ENGINEERING SUPPORT SERVICES
1. General
Unless otherwise noted the support services described in this Part 2
shall be provided at no charge to Customer. Except with respect to field service
representation, as defined in paragraph 2 below, the support services defined in
this Part 2 shall be provided by Boeing effective with the Execution Date of
this AGTA and continuing so long as at least one (1) Aircraft is regularly
operated by Customer in commercial air transport service.
2. Field Service Representation.
Boeing will furnish field service representation to advise Customer
with respect to the maintenance and operation of an aircraft (Field Service
Representatives).
2.1 Field Service Representatives will be available at a facility
designated by Customer beginning before the scheduled delivery month of the
first aircraft and ending 12 months after delivery of the last aircraft covered
by a specific purchase agreement. The field service period may be extended by
mutual agreement of the parties which may be established by a written agreement
or by Boeing's continued provision of field services.
2.2 Customer will provide, at no charge to Boeing, suitable furnished
office space and office equipment at the location where Boeing is providing
Field Service Representatives. As required, Customer will assist each Field
Service Representative with visas, work permits, customs, mail handling,
identification passes and formal introduction to local airport authorities.
2.3 Boeing Field Service Representatives are assigned to various
airports around the world. Whenever Customer's aircraft are operating through
any such airport, the services of Boeing's Field Service Representatives are
available to Customer.
3. Engineering Support Services.
Boeing will, if requested by Customer, provide technical advisory
assistance for any aircraft and Boeing Product (as defined in Part I of Exhibit
C). Technical advisory assistance, provided from the Seattle area or at a base
designated by Customer as appropriate, will include:
3.1 Operational Problem Support. If Customer experiences operational
problems with an aircraft, Boeing will analyze the information provided by
Customer to determine the probable nature and cause of the problem and to
suggest possible solutions.
B-2-1
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47
3.2 Schedule Reliability Support. If Customer is not satisfied with the
schedule reliability of a specific model of aircraft, Boeing will analyze
information provided by Customer to determine the nature and cause of the
problem and to suggest remedial solutions.
3.3 Maintenance Cost Reduction Support. If Customer is concerned that
actual maintenance costs of a specific model of aircraft are excessive, Boeing
will analyze information provided by Customer to determine the nature and cause
of the problem and to suggest possible solutions.
3.4 Aircraft Structural Repair Support. If Customer is designing
structural repairs and desires Boeing's support, Boeing will analyze and as soon
as reasonable practical take such actions as Customer may reasonably request for
the purpose of obtaining FAA approval for structural repairs not covered by
Boeing's Structural Repair Manual.
3.5 Aircraft Modification Support. If Customer is designing aircraft
modifications and requests Boeing's support, Boeing will analyze and as soon as
reasonable practical take such actions as Customer may reasonably request for
the purpose of obtaining FAA approval for changes in, or replacement of,
systems, parts, accessories or equipment manufactured to Boeing's detailed
design. Boeing will not analyze any major structural change unless Customer's
request for such analysis and comment includes complete detailed drawings,
substantiating information (including any information required by applicable
government agencies), all stress or other appropriate analyses, and a specific
statement from Customer of the substance of the review and the response
requested.
3.6 Facilities, Ground Equipment and Maintenance Planning Support.
Boeing will, at Customer's request, evaluate Customer's technical facilities,
tools and equipment for servicing and maintaining aircraft, to recommend changes
where necessary and to assist in the formulation of an overall maintenance plan.
3.7 Post-Delivery Service Support. Boeing will, at Customer's request,
perform work on an aircraft after delivery but prior to the initial departure
flight or upon the return of the aircraft to Boeing's facility prior to
completion of that flight. In that event the following provisions will apply.
3.7.1 Boeing may rely upon the commitment authority of the
Customer's personnel requesting the work.
3.7.2 As title and risk of loss has passed to Customer, the
insurance provisions of Article 11.2 of the AGTA apply.
3.7.3 The provisions of the Boeing Warranty in Part 2 of Exhibit C
of this AGTA apply.
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3.7.4 Customer will pay Boeing for requested work not covered by
the Boeing Warranty, if any.
3.7.5 The DISCLAIMER AND RELEASE and EXCLUSION OF CONSEQUENTIAL AND
OTHER DAMAGES provisions in Article 12 of Part 2 of Exhibit C of this AGTA
apply.
3.8 Additional Services. Boeing may, at Customer's request, provide
additional services for an aircraft after delivery, which may include retrofit
kit changes (kits and/or information), training, maintenance and repair of
aircraft. Such additional services will be subject to a mutually acceptable
price, schedule and scope of work. The DISCLAIMER AND RELEASE and the EXCLUSION
OF CONSEQUENTIAL AND OTHER DAMAGES provisions in Article 12 of Part 2 of Exhibit
C of this AGTA and the insurance provisions in Article 8.2 of this AGTA will
apply to any such work. Title to and risk of loss of any such aircraft will
always remain with Customer.
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CUSTOMER SUPPORT DOCUMENT
PART 3: TECHNICAL INFORMATION AND MATERIALS
1. General.
Materials are defined as any and all items that are created by Boeing
or a third party, which are provided directly or indirectly from Boeing and
serve primarily to contain, convey or embody information. Materials may include
either tangible embodiments (for example, documents or drawings), or intangible
embodiments (for example, software and other electronic forms) of information
but excludes Aircraft Software. Aircraft Software is defined as software that is
installed on and used in the operation of the aircraft.
Boeing will furnish to Customer certain Materials to support the
maintenance and operation of the aircraft at no additional charge to Customer,
except as otherwise provided herein. Such Materials will, if applicable, be
prepared generally in accordance with Air Transport Association of America (ATA)
Specification No. 100, entitled "Specification for Manufacturers' Technical
Data". Materials will be in English and in the units of measure used by Boeing
to manufacture an aircraft.
Digitally-produced Materials will, if applicable, be prepared generally
in accordance with ATA Specification No. 2100, dated January 1994, "Digital Data
Standards for Aircraft Support."
2. Materials Planning Conferences.
Customer and Boeing will conduct planning conferences approximately 12
months before the scheduled delivery month of the first aircraft of a model in
order to mutually determine the proper format and quantity of Materials to be
furnished to Customer in support of the aircraft.
When available, Customer may select Boeing standard digital format as
the delivery medium or, alternatively, Customer may select a reasonable quantity
of printed and 16mm microfilm formats. When Boeing standard digital format is
selected, Customer may also select up to 5 copies of printed or microfilm format
copies, with the exception of the Illustrated Parts Catalog, which will be
provided in one selected format only.
3. Information and Materials - Incremental Increase.
Until one year after the month of delivery of the last aircraft covered
by a specific purchase agreement, Customer may annually request in writing a
reasonable increase in
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the quantity of Materials as agreed in the planning conference. Boeing will
provide the additional quantity at no additional charge beginning with the next
normal revision cycle. Customer may request a decrease in revision quantities at
any time.
4. Advance Representative Copies.
All advance representative copies of Materials will be selected by
Boeing from available sources. Such advance copies will be for advance planning
purposes only.
5. Customized Materials.
All customized Materials will reflect the configuration of each
aircraft as delivered.
6. Revisions.
6.1 Revision Service. Boeing will provide revisions free of charge to
those Materials identified and selected by Customer and agreed to by Boeing in
the planning conference conducted for a specific model of aircraft, reflecting
changes developed by Boeing, as long as Customer operates an aircraft of that
model.
6.2 Revisions Based on Boeing Service Bulletin Incorporation. If Boeing
receives written notice that Customer intends to incorporate, or has
incorporated, any Boeing service bulletin in an aircraft, Boeing will at no
charge issue revisions to Materials with revision service reflecting the effects
of such incorporation into such aircraft.
7. Computer Software Documentation for Boeing Manufactured Airborne
Components and Equipment.
Boeing will provide to Customer a Computer Software Index containing a
listing of (i) all programmed airborne avionics components and equipment
manufactured by Boeing or a Boeing subsidiary, designed and developed in
accordance with Radio Technical Commission for Aeronautics Document No.
RTCA/DO-178 dated January 1982, No. RTCA/DO-178A dated March 1985, or later as
available, and installed by Boeing in aircraft covered by the applicable
purchase agreement and (ii) specific software documents (SOFTWARE DOCUMENTATION)
available to Customer from Boeing for the listed components and equipment.
Two copies of the Computer Software Index will be furnished to Customer
with the first aircraft of a model. Revisions to the Computer Software Index
applicable to such model of aircraft will be issued to Customer as revisions are
developed by Boeing for so long as Customer operates the aircraft.
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Software Documentation will be provided to Customer upon written
request. The charge to Customer for Software Documentation will be Boeing's
price to reproduce the Software Documentation requested. Software Documentation
will be prepared generally in accordance with ATA Specification No. 102 revised
April 20, 1983, "Specification for Computer Software Manual" but Software
Documentation will not include, and Boeing will not be obligated to provide, any
code (including, but not limited to, original source code, assembled source
code, or object code) on computer sensible media.
8. Supplier Technical Data.
8.1 For supplier-manufactured programmed airborne avionics components
and equipment classified as Seller Furnished Equipment (SFE) or Seller Purchased
Equipment (SPE) which contain computer software designed and developed in
accordance with Radio Technical Commission for Aeronautics Document No.
RTCA/DO-178 dated January 1982, No. RTCA/DO-178A dated March 1985, or later as
available, Boeing will request that each supplier of the components and
equipment make software documentation available to Customer in a manner similar
to that described in Article 7 above.
8.2 The provisions of this Article will not be applicable to items of
BFE.
8.3 Boeing will furnish to Customer a document identifying the terms
and conditions of the product support agreements between Boeing and its
suppliers requiring the suppliers to fulfill Customer's requirements for
information and services in support of the specific model of aircraft.
9. Buyer Furnished Equipment Data.
Boeing will incorporate BFE information into the customized Materials
providing Customer makes the information available to Boeing at least nine
months prior to the scheduled delivery month of Customer's first aircraft of a
specific model. If the BFE information is received by Boeing subsequent to nine
months prior to delivery of Customers first Aircraft then Boeing will
incorporate such BFE information at the earliest possible revision cycle.
Customer agrees to furnish the information in Boeing standard digital format if
Materials are to be delivered in Boeing standard digital format.
10. Materials Shipping Charges.
Boeing will pay the reasonable transportation costs of the Materials.
Customer is responsible for any customs clearance charges, duties, and taxes.
11. Customer's Shipping Address.
The Materials furnished to Customer hereunder are to be sent to a
single address to be specified. Customer will promptly notify Boeing of any
change to the address.
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CUSTOMER SUPPORT DOCUMENT
PART 4: ALLEVIATION OR CESSATION OF PERFORMANCE
Boeing will not be required to provide any Materials, services, Training or
other things at a facility designated by Customer if any of the following
conditions exist:
1. a labor stoppage or dispute in progress involving Customer;
2. wars or warlike operations, riots or insurrections in the
country where the facility is located;
3. any condition at the facility which, in the opinion of Boeing,
is detrimental to the general health, welfare or safety of its personnel or
their families;
4. the United States Government refuses permission to Boeing
personnel or their families to enter into the country where the facility is
located, or recommends that Boeing personnel or their families leave the
country; or
5. the United States Government refuses permission to Boeing to
deliver Materials, services, Training or other things to the country where the
facility is located.
After the location of Boeing personnel at the facility, Boeing further reserves
the right, upon the occurrence of any of such events, to immediately and without
prior notice to Customer relocate its personnel and their families.
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CUSTOMER SUPPORT DOCUMENT
PART 5: PROTECTION OF PROPRIETARY INFORMATION AND
PROPRIETARY MATERIALS
1. General.
All Materials provided by Boeing to Customer pursuant to this AGTA,
Purchase Agreements or related Letter Agreements and not covered by a Boeing
CSGTA or other agreement between Boeing and Customer defining Customer's right
to use and disclose the Materials and included information will be covered by,
and subject to the terms of this AGTA. Title to all Materials containing,
conveying or embodying confidential, proprietary or trade secret information
(Proprietary Information) belonging to Boeing or a third party (Proprietary
Materials), will at all times remain with Boeing or such third party. Customer
will treat all Proprietary Materials and all Proprietary Information in
confidence and use and disclose the same only as specifically authorized in this
AGTA.
2. License Grant.
Boeing grants to Customer a worldwide, non-exclusive, non-transferable
license to use and disclose Proprietary Materials in accordance with the terms
and conditions of this AGTA. Customer is authorized to make copies of Materials
and all copies of Proprietary Materials will belong to Boeing and be treated as
Proprietary Materials under this AGTA. Customer will preserve all proprietary
legends, and all copyright notices on all Materials and insure the inclusion of
those legends and notices on all copies.
3. Use of Proprietary Materials and Proprietary Information.
Customer is authorized to use Proprietary Materials and Proprietary
Information for the purpose of: (a) operation, maintenance, repair, or
modification of Customer's aircraft for which the Proprietary Materials and
Proprietary Information have been specified by Boeing and (b) development and
manufacture of training devices for use by Customer.
4. Providing of Proprietary Materials to Contractors.
Customer is authorized to provide Proprietary Materials to Customer's
contractors for the sole purpose of maintenance, repair, or modification of
Customer's aircraft for which the Proprietary Materials have been specified by
Boeing. In addition, Customer may provide Proprietary Materials to Customer's
contractors for the sole purpose of developing and manufacturing training
devices for Customer's use. Before providing Proprietary Materials to its
contractor, Customer will first obtain a written agreement from the contractor
by which the contractor agrees (a) to use the Proprietary Materials
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only on behalf of Customer, (b) to be bound by all of the restrictions and
limitations of this Part 5, and (c) that Boeing is a third party beneficiary
under the written agreement. Customer agrees to provide copies of all such
written agreements to Boeing upon request and be liable to Boeing for any breach
of those agreements by a contractor. A sample agreement acceptable to Boeing is
attached as Appendix VII.
5. Providing of Proprietary Materials and Proprietary Information to
Regulatory Agencies.
When and to the extent required by a government regulatory agency or
judicial authority having jurisdiction over Customer or an aircraft
("Authority"), Customer is authorized to provide Proprietary Materials and to
disclose Proprietary Information to the Authority. In such event Customer shall
as soon as reasonably practical notify and coordinate with Boeing the response.
Customer agrees to notify Boeing immediately upon learning of any (a)
distribution, disclosure, or additional use by the Authority, (b) request to the
Authority for distribution, disclosure, or additional use, or (c) intention on
the part of the Authority to distribute, disclose, or make additional use of
Proprietary Materials or Proprietary Information.
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EXHIBIT C
TO
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-DAL
BETWEEN
THE BOEING COMPANY
AND
DELTA AIR LINES, INC.
PRODUCT ASSURANCE DOCUMENT
This document contains:
Part 1: Exhibit C Definitions
Part 2: Boeing Warranty
Part 3: Boeing Service Life Policy
Part 4: Supplier Warranty Commitment
Part 5: Boeing Interface Commitment
Part 6: Boeing Indemnities against Patent and
Copyright Infringement
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PRODUCT ASSURANCE DOCUMENT
PART 1: EXHIBIT C DEFINITIONS
Authorized Agent - Agent appointed by Customer to perform corrections
and to administer warranties (see Appendix VI to the AGTA for a form acceptable
to Boeing).
Average Direct Hourly Labor Rate - is the average hourly rate
(excluding all fringe benefits, premium-time allowances, social charges,
business taxes and the like) paid by Customer to its Direct Labor employees.
Boeing Product - any system, accessory, equipment, part or Aircraft
Software that is manufactured or created by Boeing or manufactured or created to
Boeing's detailed design with Boeing's authorization.
Correct - to repair, modify, provide modification kits or replace with
a new product.
Correction - a repair, a modification, a modification kit or a new
product.
Corrected Boeing Product - a Boeing Product which is free of defect as
a result of a Correction.
Direct Labor - Labor spent by direct labor employees to remove,
disassemble, modify, repair, inspect and bench test a defective Boeing Product,
and to reassemble, final inspection and reinstall a Corrected Boeing Product.
Direct Materials - Items such as parts, gaskets, grease, sealant and
adhesives, installed or consumed in performing a Correction, excluding
allowances for administration, overhead, taxes, customs duties and the like.
Materials - are as defined in Exhibit B to the AGTA.
Source Control Drawing (SCD) - a Boeing document defining
specifications for certain Supplier Products.
Supplier - the manufacturer of a Supplier Product.
Supplier Product - any system, accessory, equipment, part or Aircraft
Software that is not manufactured to Boeing's detailed design. This includes but
is not limited to parts manufactured to a SCD, all standards, and other parts
obtained from non-Boeing sources.
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Warranty Inspections - inspections of Boeing Products performed during
the warranty period that are recommended by a service bulletin or service
letter.
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PRODUCT ASSURANCE DOCUMENT
PART 2: BOEING WARRANTY
1. Warranty Applicability.
This warranty applies to all Boeing Products. Warranties applicable to
Supplier Products are in Part 4. Warranties applicable to engines will be
provided either by Supplemental Exhibits to individual purchase agreements or
pursuant to separate agreement between Customer and the engine manufacturer, but
not both.
2. Warranty.
2.1 Coverage. Boeing warrants that at the time of Aircraft
delivery:
(i) the Aircraft will conform to the then current
revision of the Detail Specification applicable to
the Aircraft delivered, except for portions stated to
be estimates, approximations or design objectives;
(ii) all Boeing Products in the Aircraft will be free from
defects in material and workmanship, including
process of manufacture;
(iii) all Boeing Products in the Aircraft will be free from
defects in design, including selection of materials
and the process of manufacture, in view of the state
of the art at the time of design, and
(iv) the workmanship utilized to install Supplier
Products, engines and BFE will be free from defects.
2.2 Exceptions. The following conditions do not constitute a
defect under this warranty:
(i) conditions resulting from normal and reasonable wear
and tear in Customer's operations;
(ii) conditions resulting from Customer's misuse, abuse or
neglect; and
(iii) conditions resulting from failure to properly service
and maintain the Aircraft.
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3. Warranty Periods.
3.1 Warranty. The warranty period begins on the date of Aircraft
delivery and ends: (i) after 48 months for Boeing aircraft models 777-200, -300
or 737-600, -700, -800, or new aircraft models designed and manufactured with
similar, new technology; or, (ii) after 36 months for any other Boeing aircraft
model.
*This confidential information has been omitted and filed separately with the
Commission.
3.2 Warranty on Corrected Boeing Products. The warranty period
applicable to a Corrected Boeing Product, including the workmanship to Correct
and install, resulting from a defect in material or workmanship is the remainder
of the warranty period for the defective Boeing Product it replaced. The
warranty period for a Corrected Boeing Product resulting from a defect in design
is either 24 months for Aircraft with a basic warranty of 48 months, 18 months
for Aircraft with a basic warranty of 36 months or the remainder of the initial
warranty period, whichever is longer. The above warranty period for Corrected
Boeing Products begins on the date of delivery of the Corrected Boeing Product
or date of delivery of the kit or kits furnished to Correct the Boeing Product.
3.3 *This confidential information has been omitted and filed
separately with the Commission.
4. Remedies.
4.1 Defect Correction. At Customer's option, Boeing will either
Correct or reimburse Customer to Correct defects in Boeing Products discovered
during the warranty period.
4.2 Warranty Inspections. In addition to the remedies to Correct
defects in Boeing Products, Boeing will reimburse Customer for cost of Direct
Labor to perform certain inspections of the Aircraft to determine the existence
of a covered defect in a Boeing Product, provided:
4.2.1 the inspections for the covered defect are mandated by
the FAA or other governmental authority having jurisdiction over the Customer's
operation or are recommended by a Boeing service bulletin or service letter
issued by Boeing during the warranty period; and
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4.2.2 *This confidential information has been omitted and
filed separately with the Commission.
4.3 Credit Memorandum Reimbursement. Boeing will make all
reimbursements by credit memoranda which may be applied toward the purchase of
Boeing goods and services.
4.4 Maximum Reimbursement. Unless previously agreed, the maximum
reimbursement for Direct Labor and Direct Materials used to Correct a defective
Boeing Product will not exceed 65% of Boeing's then-current sales price for a
new replacement Boeing Product. If the estimate to Correct a defective Boeing
Product exceeds 65% of the price of a new part, Boeing will either provide a
credit to Customer at 65% of the replacement price of a new part or a new
replacement part, at Customer's' option.
4.5 Year 2000 Compliance.
4.5.1 Customer has requested certain commitments from Boeing
regarding the year 2000 Compliance. Year 2000 Compliance Software is software
which will accommodate the change from year 1999 to and beyond year 2000. In
response to this request, Boeing warrants to Customer the following:
4.5.2 Boeing has designed its software system to preclude any
interruption in its operation due to the anomalies resulting from the value for
current date.
4.5.3 Boeing has designed its software system to produce
desired results for all valid date values within the application domain and in
combination with other products, prior to, through and beyond the year 2000.
4.5.4 Boeing's software systems use of date elements in
interfaces will permit specifying the century to eliminate date ambiguity
without human intervention, including leap year calculations.
4.5.5 Boeing's software systems will, where any date element
is represented without a century, provide that the correct century shall be
unambiguous for all manipulations involving that element.
In the event such software does not meet the requirements in
4.5.2 through 4.5.5 above at the time of Aircraft delivery to Customer, or in
the case of software furnished to Customer, pursuant to Exhibit B, Part 3 of the
AGTA such
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software, Boeing will, at its election, either modify such software to be Year
2000 Compliant, replace such non-compliant software with software that is Year
2000 Compliant or provide a reasonable workaround to allow continued use of such
software until final correction to the software can be accomplished. Customer's
remedies under this paragraph are sole and exclusive and are limited to
no-charge modification, replacement or workaround of the non-compliant software
and will be accomplished either prior to Aircraft delivery or, following
Aircraft delivery, as soon as practicable after discovery of noncompliance.
5. Discovery and Notice.
5.1 For a claim to be considered for reimbursement:
(i) the defect must be discovered during the warranty
period. For the purposes of this Section 5.1. (i)
the warranty period is extended for the periods
described in paragraph 3 and Supplemental Exhibits
to the Purchase Agreements.
(ii) Boeing Product Assurance Contracts must receive written
notice of the discovery no later than 90 days after
expiration of the warranty period.
5.2 Receipt of Customer's notice of the discovery of a defect secures
Customer's rights to remedies under this Exhibit C, whether or not Customer has
performed the Correction at the time of the notice.
5.3 Boeing may release service bulletins or service letters advising
Customer of the availability of certain warranty remedies. When such advice is
provided, Customer will be deemed to have fulfilled the requirements for
discovery of the defect and submittal of notice under this Exhibit C as of the
date specified in the service bulletin or service letter.
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6. Filing a Claim.
6.1 Authority to File. Claims may be filed by Customer or the
Authorized Agent that Customer appoints to act on Customer's behalf. Such
appointment will only be effective upon Boeing's receipt of the Authorized
Agent's express written agreement, in a form satisfactory to Boeing, to be bound
by and to comply with all applicable terms and conditions of this Aircraft
General Terms Agreement.
6.2 Claim Information.
6.2.1 Claims filed under this Exhibit C shall contain the
following information:
(i) identity of claimant;
(ii) serial or block number of the Aircraft on
which the defective Boeing Product was
delivered;
(iii) part number of defective Boeing Product;
(iv) purchase order number and date of delivery
of a spare part
(v) description and substantiation of defect;
and
(vi) date the defect was discovered.
(vii) date the Correction was completed.
6.2.2 Boeing may request additional information from Customer
based on the nature of the defect and the remedies requested and Customer shall
reasonably cooperate to comply with such request.
6.3 Boeing Claim Processing.
6.3.1 All claims must be signed and submitted in writing
directly by Customer or its Authorized Agent to Boeing Product Assurance
Contracts.
6.3.2 Boeing will promptly review the claim and will give
notification of claim approval or rejection. If the claim is rejected, Boeing
will provide a written explanation, including the basis for such rejection.
6.3.3 If Boeing implements a change in its database which
includes the ability for electronic filing of warranty claims and Customer does
not
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have the software required to submit claims electronically, Boeing will provide
the software at no charge to Customer.
6.3.4 *This confidential information has been omitted and
filed separately with the Commission.
7. Limited Warranty for Certain Materials.
7.1 Boeing warrants that, at the time of delivery, all Materials
created by Boeing will be free from errors and defects in media. In the case
where such Materials are provided by on-line electronic access, media is the
digital format transmitted from Boeing.
7.2 Warranty Periods and Claims. The warranty period with respect to an
error or a defect in any Materials created by Boeing begins at delivery of the
Materials in which the error or defect is discovered and ends 36 or 48 months
after delivery of the Materials, based on the warranty periods, by aircraft
model, in Para. 3.1 of this Exhibit C.
The claimed error or defect must become apparent to Customer
within the applicable warranty period, and the Boeing Product Assurance Regional
Manager must receive written notice of such error or defect at the earliest
practicable time after the error or defect becomes apparent to Customer, but in
no event later than 90 days after expiration of the applicable warranty period.
7.3 Remedy. Customer's remedy for an error or a defect in media is
replacement of the erroneous or defective Materials created by Boeing with
Materials free from such error or defect.
8. Corrections Performed by Customer.
8.1 Facilities Requirements. Customer may at its option Correct
defective Boeing Products at its facilities or may subcontract Corrections to a
third party contractor or an Authorized Agent.
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8.2 Technical Requirements. All Corrections done by Customer, a third
party contractor or Customer's Authorized Agent must be performed in accordance
with Boeing's applicable service manuals, bulletins or other written
instructions, using parts and materials furnished or approved by Boeing.
8.3 Reimbursement.
8.3.1 Boeing will reimburse for costs of Direct Materials and
Direct Labor (excluding time expended for normal overhaul) at Customer's
Warranty Labor Rate to Correct a defective Boeing Product or Corrected Boeing
Product. Claims for reimbursement will contain a report of Customer's Direct
Labor hours expended and Direct Materials consumed to Correct the defective
Boeing Product. Boeing may request that Customer, the third party contractor, or
Customer's Authorized Agent produce invoices for Direct Materials.
8.3.2 *This confidential information has been omitted and
filed separately with the Commission.
8.3.3 Boeing will reimburse Customer for freight charges
associated with Corrections performed by a third party contractor or Customer's
Authorized Agent.
8.3.4 Boeing will provide Customer reimbursement for MRO
material at the percentage of labor expenditures Customer is actually
experiencing. Following analysis of data from Customer which establishes the
actual percentage, Boeing will set the percentage at the level supported by the
data.
8.4 Disposition of Defective Boeing Products Beyond Economical
Repair.
8.4.1 Defective Boeing Products or Corrected Boeing Products
that are found to be beyond economical repair will be retained for a period of
60 days from the date Boeing receives Customer's claim. Boeing may request
return of such Boeing Products or corrected Boeing Products during the 60 day
period for inspection and confirmation of a defect.
8.4.2 A defective Boeing Product or Corrected Boeing Product
with a Boeing Spare Parts Price Catalog value of U.S. $2,000.00 or less may be
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scrapped without notification to Boeing. If such Product has a value greater
than U.S. $2,000.00, Customer must obtain confirmation of unrepairability by
Boeing's on-site Customer Services Representative prior to scrapping.
Confirmation may be in the form of the Representative's signature on Customer's
claim or through direct communication between the Representative and Boeing
Product Assurance Contracts. *This confidential information has been omitted and
filed separately with the Commission.
8.5 Warranty Labor Rate. If Customer or its Authorized Agent Corrects a
defective Boeing Product, reimbursement to Customer for Direct Labor Hours will
be provided at Customer's established Warranty Labor Rate. Customer's
established Warranty Labor Rate will be the greater of the standard labor rate
or 150% of Customer's Average Direct Hourly Rate. The standard labor rate paid
by Boeing to its customers is established and published annually. Prior to or
concurrently with submittal of Customer's first claim for Direct Labor
reimbursement, Customer will notify Boeing of Customer's then-current average
direct hourly labor rate, and thereafter notify Boeing of any material change in
such rate. Boeing will require information from Customer to substantiate such
rates.
9. Corrections Performed by Boeing.
9.1 Freight Charges. Customer will pay shipping charges to return a
defective Boeing Product or defective Corrected Boeing Product to Boeing. Boeing
will reimburse Customer for the charge for any item determined to be defective
under this Aircraft General Terms Agreement. Boeing will pay shipping charges to
return the Corrected Boeing Product.
9.2 Customer Instructions. The documentation shipped with the returned
defective Boeing Product or defective Corrected Boeing Product shall include
specific technical instructions for work to be performed on the Boeing Product.
9.3 Correction Time Objectives.
9.3.1 Boeing's will make Corrections to defective Boeing Products
or defective Corrected Boeing Products within 10 working days for avionics and
electronic Boeing Products, 30 working days for Corrections of other Boeing
Products performed at Boeing's facilities, and 40 working days for Corrections
of other Boeing Products performed at a Boeing subcontractor's facilities ("Turn
Time"). The Turn Time is measured from the date Boeing receives the defective
Boeing Product and a valid claim to the date Boeing ships the Corrected Boeing
product to Customer.
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9.3.2 If Customer has a critical parts shortage because Boeing
has exceeded a Turn Time and Customer has procured spare Boeing Products for the
defective Boeing Product in quantities based on Customer's operating experience,
then Boeing will either expedite performance of the Correction or provide a
substitute Boeing Product on a no charge loan or lease basis until the Corrected
Boeing Product is returned.
9.4 *This confidential information has been omitted and filed
separately with the Commission.
9.5 *This confidential information has been omitted and filed
separately with the Commission.
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*This confidential information
has been omitted and filed
separately with the Commission.
9.6 *This confidential information has been omitted and filed
separately with the Commission.
10. Returning an Aircraft.
10.1 Conditions. An Aircraft may be returned to Boeing's
facilities for Correction only if:
(i) Boeing and Customer agree a defect exists;
(ii) Customer lacks access to adequate facilities,
equipment or qualified personnel to perform the
Correction; and
(iii) it is not practical, in Boeing's estimation, to
dispatch Boeing personnel to perform the Correction
at a remote site.
10.2 Correction Costs. Boeing will perform the Correction at no charge
to Customer. Subject to the conditions of Article 10.1, Boeing will reimburse
Customer for the costs of fuel, oil and landing fees incurred in ferrying the
Aircraft to Boeing and back to Customer's facilities. Customer will minimize the
length of both flights.
10.3 Separate Agreement. Boeing and Customer will enter into a separate
agreement covering return of the Aircraft and performance of the Correction.
Boeing must obtain Customer's prior authorization for Boeing to perform
additional work that is not part of the Correction.. Such additional work shall
be performed in accordance with the terms and conditions of Customer's Customer
Services General Terms Agreement.
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11. Insurance.
The provisions of Article 8.2 "Insurance", of the AGTA, will apply to
any work performed by Boeing in accordance with Customer's specific technical
instructions, to the extent any legal liability of Boeing is based upon the
content of such instructions.
12. Disclaimer and Release; Exclusion of Liabilities.
12.1 DISCLAIMER AND RELEASE. THE WARRANTIES, OBLIGATIONS AND
LIABILITIES OF BOEING AND THE REMEDIES OF CUSTOMER IN THIS EXHIBIT C OR
OTHERWISE PROVIDED IN THIS AGTA, THE PURCHASE AGREEMENTS AND LETTER AGREEMENTS
ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND CUSTOMER HEREBY WAIVES, RELEASES AND
RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF BOEING AND ALL
OTHER RIGHTS, CLAIMS AND REMEDIES OF CUSTOMER AGAINST BOEING, EXPRESS OR
IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY NONCONFORMANCE OR
DEFECT IN ANY AIRCRAFT, BOEING PRODUCT, MATERIALS, TRAINING, SERVICES OR OTHER
THING PROVIDED UNDER THIS AGTA AND THE APPLICABLE PURCHASE AGREEMENT, INCLUDING,
BUT NOT LIMITED TO:
(A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN
TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF
BOEING; AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR
LOSS OF OR DAMAGE TO ANY AIRCRAFT.
12.2 EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES. BOEING WILL HAVE NO
OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT,
WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF BOEING, OR OTHERWISE, FOR LOSS OF
USE, REVENUE OR PROFIT, OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES
WITH RESPECT TO ANY
C-2-11
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69
NONCONFORMANCE OR DEFECT IN ANY AIRCRAFT, BOEING PRODUCT, MATERIALS, TRAINING,
SERVICES OR OTHER THING PROVIDED UNDER THIS AGTA AND THE APPLICABLE PURCHASE
AGREEMENT.
12.3 Definitions. For the purpose of this Article, "BOEING" or "Boeing"
is defined as The Boeing Company, its divisions, subsidiaries, affiliates, the
assignees of each, and their respective directors, officers, employees and
agents.
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PRODUCT ASSURANCE DOCUMENT
PART 3: BOEING SERVICE LIFE POLICY
1. Definitions.
SLP Component - any of the primary structural elements (excluding
industry standard parts, such as Military Standard ("MS") and National Aerospace
Standard ("NAS") of the landing gear, wing, fuselage, vertical or horizontal
stabilizer listed in the applicable Purchase Agreement for a specific model of
aircraft that is installed in the Aircraft at time of delivery or is purchased
from Boeing by Customer as a spare part. The detailed SLP Component listing will
be in Supplemental Exhibit SLP1 to each Purchase Agreement.
2. Service Life Policy.
2.1 SLP Commitment. If a failure or defect is discovered in a SLP
Component within the time periods specified in Article 2.2 below, Boeing will,
at a price calculated pursuant to Article 3 below, Correct the SLP Component.
2.2 SLP Policy Periods.
2.2.1 The policy period for SLP Components initially installed
on an Aircraft is 12 years after the date of delivery of the Aircraft.
2.2.2 The policy period for SLP Components purchased from
Boeing by Customer as spare parts is 12.5 years from delivery of such SLP
Component.
3. Price.
The price that Customer will pay for the Correction of a defective or
failed SLP Component will be calculated pursuant to the following formula:
P = CT
---
144
where:
P = price to Customer
C-3-1
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C = SLP Component Boeing Spare Parts Price Catalog sales
price at time of Correction (less any applicable discounts
then available to Customer. If any such discount is
applied to the invoiced price, this formula will include
the discounted price in lieu of the Spare Parts Catalog
price.)
T = total age in months of the defective or failed SLP
Component from the date of delivery to Customer to the
date of discovery of such condition.
4. Conditions.
Boeing's obligations under this Policy are conditioned upon the
following:
4.1 Customer must notify Boeing in writing of the defect or failure
within three months after it becomes apparent.
4.2 Customer shall provide reasonable evidence that the claimed defect
or failure is covered by this Policy The following conditions do not constitute
a defect under this Policy:
(i) conditions resulting from normal and reasonable wear
and tear in Customer's operations;
ii) conditions resulting from Customer's misuse, abuse or
neglect; and
(iii) conditions resulting from failure to properly service
and maintain the Aircraft.
4.3 If return of a defective or failed SLP Component is practicable and
requested by Boeing, Customer will return such SLP Component to Boeing at
Boeing's expense.
4.4 Customer's rights and remedies under this Policy are limited to the
receipt of a Correction at prices calculated pursuant to Article 3 above.
5. Disclaimer and Release; Exclusion of Liabilities.
This Part 3 and the rights and remedies of Customer and the obligations
of Boeing are subject to the DISCLAIMER AND RELEASE and EXCLUSION OF
CONSEQUENTIAL AND OTHER DAMAGES provisions of Article 12 of Part 2 of this
Exhibit C.
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72
PRODUCT ASSURANCE DOCUMENT
PART 4: SUPPLIER WARRANTY COMMITMENT
1. Supplier Warranties and Supplier Patent Indemnities.
Boeing will use diligent efforts to obtain warranties and indemnities
against patent infringement enforceable by Customer from Suppliers of Supplier
Products (except for engines) installed on the Aircraft at the time of delivery
that were selected and purchased by Boeing, but not manufactured to Boeing's
detailed design. Boeing will furnish copies of the warranties and patent
indemnities to Customer in Boeing Document D6-56115, Product Support and Product
Assurance Supplier Defined Equipment Information, not less than three (3) months
prior to the scheduled delivery month of the first Aircraft under each Purchase
Agreement covered by this AGTA.
2. Boeing Assistance in Administration of Supplier Warranties.
Customer will be responsible for submitting warranty claims directly to
Suppliers; however, if Customer experiences problems enforcing any Supplier
warranty obtained by Boeing for Customer, Boeing will conduct an investigation
of the problem and assist Customer in the resolution of those claims.
3. Boeing Support in Event of Supplier Default.
3.1 If the Supplier defaults in the performance of a material
obligation under its warranty, and Customer provides evidence to Boeing that a
default has occurred, then Boeing will furnish the equivalent warranty terms as
provided by the defaulting Supplier.
3.2 At Boeing's request, Customer will assign to Boeing, and Boeing
will be subrogated to, its rights against the Supplier provided by the Supplier
warranty.
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PRODUCT ASSURANCE DOCUMENT
PART 5: BOEING INTERFACE COMMITMENT
1. Interface Problems.
An Interface Problem is defined as a technical problem in the operation
of an Aircraft or its systems experienced by Customer, the cause of which is not
readily identifiable by Customer but which Customer believes to be attributable
to the design characteristics of the Aircraft or its systems. In the event
Customer experiences an Interface Problem, Boeing will, in consultation with the
Customer, and without charge to Customer, promptly conduct an investigation and
analysis to determine the cause or causes of the Interface Problem. Boeing will
promptly advise Customer at the conclusion of its investigation of Boeing's
opinion as to the causes of the Interface Problem and Boeing's recommendation as
to corrective action.
2. Boeing Responsibility.
If Boeing determines that the Interface Problem is primarily
attributable to the design of any Boeing Product, Boeing will Correct the design
to the extent of any then-existing obligations of Boeing under the provisions of
the applicable Boeing Warranty or Boeing Service Life Policy.
3. Supplier Responsibility.
If Boeing determines that the Interface Problem is primarily
attributable to the design of a Supplier Product, Boeing will assist Customer in
processing a warranty claim against the Supplier.
4. Joint Responsibility.
If Boeing determines that the Interface Problem is partially
attributable to the design of a Boeing Product and partially to the design of a
Supplier Product, Boeing will seek a solution to the Interface Problem through
the cooperative efforts of Boeing and the Supplier and will promptly advise
Customer of the resulting corrective actions and recommendations.
5. General.
So long as the Interface problem is corrected to Customer's
satisfaction or Customer is otherwise satisfied with the remedial action
proposed by Boeing to correct the Interface Problem, Customer will, if requested
by Boeing, assign to Boeing any of its rights against any supplier as Boeing may
require to fulfill its obligations hereunder.
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6. Disclaimer and Release; Exclusion of Liabilities.
This Part 5 and the rights and remedies of Customer and the obligations
of Boeing herein are subject to the DISCLAIMER AND RELEASE and EXCLUSION OF
CONSEQUENTIAL AND OTHER DAMAGES provisions of Article 12 of Part 2 of this
Exhibit C.
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PRODUCT ASSURANCE DOCUMENT
PART 6: BOEING INDEMNITIES AGAINST PATENT, COPYRIGHT AND
TRADE SECRET INFRINGEMENT
1. Indemnity Against Patent Infringement.
Boeing will defend and indemnify Customer with respect to all claims,
suits and liabilities arising out of any actual or alleged patent infringement
through Customer's use, lease or resale of any Aircraft or any Boeing Product
installed on an Aircraft at delivery.
2. Indemnity Against Copyright Infringement.
Boeing will defend and indemnify Customer with respect to all claims,
suits and liabilities arising out of any actual or alleged copyright
infringement through Customer's use, lease or resale of any Boeing created
Aircraft Software installed on an Aircraft at delivery.
3. Indemnity Against Trade Secret Infringement
Boeing will defend and indemnify Customer with respect to all claims,
suits and liabilities arising out of any actual or alleged trade secret
infringement by Boeing which interferes with Customer's use, lease or resale of
any Aircraft or any Boeing Product installed on an Aircraft at delivery.
4. Exceptions, Limitations and Conditions.
4.1 Boeing's obligation to indemnify Customer for copyright
infringement is limited to infringements in countries which, at the time of the
infringement, are members of The Berne Union and recognize computer software as
a "work" under The Berne Convention.
4.2 The indemnities provided under this Part 6 will not apply to any
(i) BFE, (ii) engines, (iii) Supplier Product (iv) Boeing Product used other
than for its intended purpose, or (v) Aircraft Software not created by Boeing.
4.3 Boeing's obligation to indemnify Customer for trade secret
infringement is limited to infringement arising out of wrongful use or
disclosure of trade secrets by Boeing without any knowledge or involvement on
the part of Customer.
4.4 Customer must deliver written notice to Boeing (i) within 10 days
after Customer first receives notice of any suit or other formal action against
Customer and (ii) within 30 days after Customer first receives any other
allegation or written claim of infringement covered by this Part 6.
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4.5 At any time, but without cost or prejudice to Customer, Boeing will
have the right at its option and expense to: (i) negotiate with any party
claiming infringement, (ii) assume or control the defense of any infringement
allegation, claim, suit or formal action, (iii) intervene in any infringement
suit or formal action, and/or (iv) attempt to resolve any claim of infringement
by replacing an allegedly infringing Boeing Product or Aircraft Software with a
noninfringing equivalent.
4.6 Customer will furnish to Boeing all information, records and
assistance within Customer's possession or control which Boeing reasonably
considers relevant or material to any alleged infringement covered by this Part
6.
4.7 Except as required by a final judgment entered against Customer by
a court of competent jurisdiction from which no appeals can be or have been
filed, either Boeing or Customer will obtain the other's written approval prior
to paying, committing to pay, assuming any obligation or making any material
concession relative to any infringement covered by these indemnities.
4.8 *This confidential information has been omitted and filed
separately with the Commission.
4.9 BOEING WILL HAVE NO OBLIGATION OR LIABILITY UNDER THIS PART 6 FOR
LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL
DAMAGES. THE OBLIGATIONS OF BOEING AND REMEDIES OF CUSTOMER IN THIS PART 6 ARE
EXCLUSIVE AND IN SUBSTITUTION FOR, AND CUSTOMER HEREBY WAIVES, RELEASES AND
RENOUNCES ALL OTHER INDEMNITIES, OBLIGATIONS AND LIABILITIES OF BOEING AND ALL
OTHER RIGHTS, CLAIMS AND REMEDIES OF CUSTOMER AGAINST BOEING, EXPRESS OR
IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY ACTUAL OR ALLEGED
PATENT, COPYRIGHT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY INFRINGEMENT OR
THE LIKE BY ANY AIRCRAFT, BOEING PRODUCT, AIRCRAFT SOFTWARE, MATERIALS,
TRAINING, SERVICES OR OTHER THING PROVIDED UNDER THIS AGTA AND THE APPLICABLE
PURCHASE AGREEMENT.
4.10 For the purposes of this Part 6, "BOEING or Boeing" is defined as
The Boeing Company, its divisions, subsidiaries, affiliates, the assignees of
each and their respective directors, officers, employees and agents.
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EXHIBIT D
TO
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-DAL
BETWEEN
THE BOEING COMPANY
AND
DELTA AIR LINES, INC.
ESCALATION ADJUSTMENT
AIRFRAME AND OPTIONAL FEATURES
(FOR MODEL 737-600, 737-700 AND 737-800, AIRFRAME
PRICE INCLUDES THE ENGINE PRICE)
D
i
AGTA-DAL
78
ESCALATION ADJUSTMENT
1. Formula.
Airframe and Optional Features price adjustments (Airframe Price
Adjustment); are used to allow prices to be stated in current year dollars at
the signing of the applicable purchase agreement and to adjust the amount to be
paid by Customer at delivery for the effects of economic fluctuation. The
Airframe Price Adjustment will be determined at the time of aircraft delivery in
accordance with the following formula:
P(a) = (P)(L + M - 1)
Where:
P(a) = Airframe Price Adjustment. (For Model 737-600,
737-700 and 737-800, the Airframe Price includes
the Engine Price.)
L = .65 x ECI
---
base year index (as set forth in Table 1 of
the applicable purchase agreement)
M = .35 x ICI
---
base year index (as set forth in Table 1 of
the applicable purchase agreement)
P = Airframe Price plus Optional Features Price (as
set forth in the applicable purchase agreement).
ECI is a value determined using the U.S. Department of
Labor, Bureau of Labor Statistics "Employment Cost Index
for workers in aerospace manufacturing" (ECI code 3721),
calculated by establishing a three-month arithmetic
average value (expressed as a decimal and rounded to the
nearest tenth) using the values for the fifth, sixth and
seventh months prior to the month of scheduled delivery of
the applicable aircraft. As the Employment Cost Index
values are only released on a quarterly basis, the value
released for the month of March will be used for the
months of January and February; the value for June used
for April and May; the value for September used for July
and August; and the value for December used for October
and November.
ICI is a value determined using the U.S. Department of
Labor, Bureau of Labor Statistics "Producer Prices and
Price Index - Industrial Commodities Index", calculated as
a 3-month arithmetic average of the released monthly
values (expressed as a decimal and rounded to the
D-1
AGTA-DAL
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nearest tenth) using the values for the 5th, 6th and 7th
months prior to the month of scheduled delivery of the
applicable aircraft.
As an example, for an aircraft scheduled to be delivered
in the month of January, the months June, July and August
of the preceding year will be utilized in determining the
value of ECI and ICI.
Note: i. In determining the values of L and M, all calculations
and resulting values will be expressed as a decimal rounded to the
nearest ten-thousandth.
ii. .65 is the numeric ratio attributed to labor in the
Airframe Price Adjustment formula.
iii. .35 is the numeric ratio attributed to materials in the
Airframe Price Adjustment formula.
iv. The denominators (base year indices) are the actual average
values reported by the U.S. Department of Labor, Bureau of Labor
Statistics (base year June 1989 = 100). The applicable base year
and corresponding denominator will be provided by Boeing in the
applicable purchase agreement.
2. Values to be Utilized in the Event of Unavailability.
2.1 If the Bureau of Labor Statistics substantially revises the
methodology used for the determination of the values to be used to determine the
ECI and ICI values (in contrast to benchmark adjustments or other corrections of
previously released values), or for any reason has not released values needed to
determine the applicable Airframe Price Adjustment, the parties will, prior to
the delivery of any such aircraft, select a substitute from other Bureau of
Labor Statistics data or similar data reported by non-governmental
organizations. Such substitute will result in the same adjustment, insofar as
possible, as would have been calculated utilizing the original values adjusted
for fluctuation during the applicable time period. However, if within 24 months
after delivery of the aircraft, the Bureau of Labor Statistics should resume
releasing values for the months needed to determine the Airframe Price
Adjustment, such values will be used to determine any increase or decrease in
the Airframe Price Adjustment for the aircraft from that determined at the time
of delivery of the aircraft.
2.2 Notwithstanding Article 2.1 above, if prior to the scheduled
delivery month of an aircraft the Bureau of Labor Statistics changes the base
year for determination of the ECI and ICI values as defined above, such re-based
values will be incorporated in the Airframe Price Adjustment calculation.
2.3 In the event escalation provisions are made non-enforceable or
otherwise rendered void by any agency of the United States Government, the
parties agree, to the extent they may lawfully do so, to equitably adjust the
Purchase Price of any affected aircraft to reflect an allowance for increases or
decreases in labor compensation
D-2
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80
and material costs occurring since February, 1995, which is consistent with the
applicable provisions of paragraph 1 of this Exhibit D.
Note: i. The values released by the Bureau of Labor Statistics and
available to Boeing 30 days prior to the scheduled delivery month
of an aircraft will be used to determine the ECI and ICI values for
the applicable months (including those noted as preliminary by the
Bureau of Labor Statistics) to calculate the Airframe Price
Adjustment for the aircraft invoice at the time of delivery. The
values will be considered final and no Aircraft Price Adjustments
will be made after Aircraft delivery for any subsequent changes in
published Index values.
ii. The maximum number of digits utilized in any part of the
Airframe Price Adjustment equation will be 4, where rounding of the
fourth digit will be increased to the next highest digit when the
5th digit is equal to 5 or greater.
D-3
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EXHIBIT E
TO
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-DAL
BETWEEN
THE BOEING COMPANY
AND
DELTA AIR LINES, INC.
AIRCRAFT DELIVERY REQUIREMENTS AND RESPONSIBILITIES
i
AGTA-DAL
82
AIRCRAFT DELIVERY REQUIREMENTS AND RESPONSIBILITIES
This Exhibit E documents the delivery activities and documentation required to
facilitate delivery of the aircraft covered under this AGTA.
1. Government Documentation Requirements.
1.1 Airworthiness and Registration Documents.
On or about 6 months prior to delivery of
each Aircraft, Customer will notify Boeing of the registration number assigned
to the Aircraft. In addition, and on or about 3 months prior to delivery of each
Aircraft, Customer will, by letter to the regulatory authority having
jurisdiction, authorize the temporary use of such registration numbers by Boeing
during the pre-delivery testing of the Aircraft.
Customer is responsible for furnishing any Temporary or Permanent Registration
Certificates required by any governmental authority having jurisdiction to be
displayed aboard the Aircraft after delivery.
1.2 Certificate of Sanitary Construction.
Prior to delivery of each Aircraft, Boeing
will obtain from the United States Public Health Service and provide to Customer
at delivery, a United States Certificate of Sanitary Construction for the
aircraft to be delivered.
2. Insurance Certificate.
Unless provided earlier, Customer will provide to
Boeing on or about 30 days prior to delivery of the Aircraft, a copy of the
requisite annual insurance certificate in accordance with the requirements of
Article 11 of the AGTA.
3. Notice of Flyaway.
On or about 20 days prior to delivery of the Aircraft,
Customer will provide to Boeing a letter stating the requested ferry flight
information:
(i) the name of the company which is to furnish
fuel for the ferry flight and any scheduled post-delivery flight training, if
required, the method of payment for such fuel, and the fuel load for the ferry
flight.
(ii) the cargo to be loaded prior to flyaway and
where it is to be stowed on board the Aircraft.
E-1
AGTA-DAL
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(iii) any BFE equipment to be removed prior to
flyaway and returned to Boeing BFE stores for installation on Customer's
subsequent Aircraft.
(iv) a preliminary list of names and citizenship
of each crew member and passenger who will be aboard the Aircraft during the
ferry flight; and
(v) a complete ferry flight itinerary.
4. Delivery Actions by Boeing.
In addition to Boeing's obligation contained in Article 6 of the AGTA, Boeing
shall also do the following:
4.1 Schedule of Inspections. All FAA, Boeing,
Customer and, if required, U.S. Customs Bureau inspections will be scheduled by
Boeing for completion prior to delivery or departure of the Aircraft. Customer
will be informed of such schedules.
4.2 Schedule of Demonstration Flights. All FAA
and Customer demonstration flights will be scheduled by Boeing for completion
prior to delivery of the Aircraft and shall be performed in accordance with the
provisions of Article 5.3 of the AGTA.
4.3 Schedule for Customer's Flight Crew.
Boeing will inform Customer of the date that a flight crew is required for
acceptance routines associated with delivery of the Aircraft.
4.4 Fuel Provided by Boeing. Boeing will
provide to Customer, without charge, the amount of fuel shown in U.S. gallons in
the table below for the model of Aircraft being delivered and full capacity of
engine oil at the time of delivery or prior to the ferry flight of the Aircraft.
AIRCRAFT MODEL FUEL PROVIDED
-------------- -------------
737 1,000
747 4,000
757 1,600
767 2,000
777 3,000
4.5 Flight Crew and Passenger Consumables.
Boeing will provide food, coat hangers, towels, toilet tissue, drinking cups and
soap for the first segment of the ferry flight for the Aircraft.
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4.6 Delivery Papers, Documents and Data.
Boeing will have available at the time of delivery of the Aircraft certain
delivery papers, documents and data for execution and delivery. If title for the
Aircraft will be transferred to Customer through a Boeing sales subsidiary and
if the Aircraft will be registered with the FAA, Boeing will pre-position in
Oklahoma City, Oklahoma, for filing with the FAA at the time of delivery of the
Aircraft an executed original Form 8050-2, Aircraft Bill of Sale, indicating
transfer of title to the Aircraft from Boeing's sales subsidiary to Customer.
4.7 Delegation of Authority. If specifically
requested in advance by Customer, Boeing will present a certified copy of a
Resolution of Boeing's Board of Directors, designating and authorizing certain
persons to act on its behalf in connection with delivery of the Aircraft.
5. Delivery Actions by Customer.
5.1 Aircraft Radio Station License. At
delivery Customer will provide its Aircraft Radio Station License to be placed
on board the Aircraft following delivery.
5.2. Aircraft Flight Log. At delivery Customer
will provide the Aircraft Flight Log for the Aircraft.
5.3 Delegation of Authority. If requested in
advance by Boeing, Customer will present to Boeing at delivery of the Aircraft,
a copy of Customer's Delegation of Authority designating and authorizing certain
persons to act on its behalf in connection with delivery of the specified
Aircraft.
E-3
AGTA-DAL
85
EXHIBIT F
TO
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-DAL
BETWEEN
THE BOEING COMPANY
AND
DELTA AIR LINES, INC.
*This confidential information
has been omitted and filed
separately with the Commission.
F
i
AGTA-DAL
86
*This confidential information
has been omitted and filed
separately with the Commission.
F-1
AGTA-DAL
87
*This confidential information
has been omitted and filed
separately with the Commission.
F-2
AGTA-DAL
88
SAMPLE
INSURANCE CERTIFICATE
[ date ]
Certificate of Insurance
ISSUED TO: The Boeing Company
Post Office Box 3707
Mail Stop 13-57
Seattle, Washington 98124
Attn: Manager - Aviation Insurance for
Vice President - Employee Benefits,
Insurance and Taxes
CC: Boeing Commercial Airplane Group
P.O. Box 3707
Mail Stop 75-38
Seattle, Washington 98124-2207
U.S.A.
Attn: Vice President - Contracts
NAMED INSURED: DELTA AIR LINES INC.
We hereby certify that in our capacity as Brokers to the Named Insured, the
following described insurance is in force on this date:
INSURER POLICY NO. PARTICIPATION
- ------- ---------- -------------
POLICY PERIOD: From [date and time of inception of the Policy(ies)] to
[date and time of expiration].
GEOGRAPHICAL LIMITS: Worldwide
App. 1
1
AGTA-DAL
89
SAMPLE
INSURANCE CERTIFICATE
AIRCRAFT INSURED: All Boeing manufactured aircraft owned or operated
by the Named Insured which are the subject of the following
purchase agreement(s), entered into between The Boeing
Company and _________________ (hereinafter "Aircraft"):
Purchase Agreement No. ____ dated ______
Purchase Agreement No. ____ dated ______
COVERAGES:
1. AIRCRAFT "ALL RISKS" HULL (GROUND AND FLIGHT)
2. AIRCRAFT HULL WAR AND ALLIED PERILS (AS PER LSW 555, OR ITS SUCCESSOR
WORDING)
3. AIRLINE LIABILITY
Including, but not limited to, Bodily Injury, Property Damage, Aircraft
Liability, Passenger Legal Liability, Premises/Operations Liability, Completed
Operations/Products Liability, Baggage Legal Liability (checked and unchecked),
Cargo Legal Liability, Contractual Liability and Personal Injury.
LIMITS OF LIABILITY:
To the fullest extent of the Policy limits that the Named Insured carries from
the time of delivery of the first Aircraft under the first Purchase Agreement
listed under "Aircraft Insured" and thereafter at the inception of each policy
period, but in any event no less than the following:
Combined Single Limit Bodily Injury and Property Damage: any one occurrence each
Aircraft (with aggregates as applicable).
(737-500/600) *
(737-300/700) *
(737-400) *
(737-800) *
(757-200) * *This confidential information
(757-300) * has been omitted and filed
(767-200) * separately with the Commission.
(767-300) *
(767-400ER) *
(777-200/300) *
(747-400) *
(In regard to all other models and/or derivatives, to be specified by Boeing).
App. 1
2
AGTA-DAL
90
SAMPLE
INSURANCE CERTIFICATE
(In regard to Personal Injury coverage, limits are * any one offense/aggregate.)
SPECIAL PROVISIONS APPLICABLE TO BOEING:
It is certified that the lead Insurer is aware of the terms and conditions of
the Aircraft General Terms Agreement AGTA/(________) and the following purchase
agreements:
PA ______ dated _______ PA ______ dated _______ PA ______ dated _______
Each Aircraft manufactured by Boeing which is delivered to the Insured pursuant
to the applicable purchase agreement during the period of effectivity of the
policies represented by this Certificate will be covered to the extent specified
herein.
Insurers have agreed to the following:
A. In regard to Aircraft "all risks" Hull Insurance, Insurers have
agreed to waive all rights of subrogation or recourse against Boeing to the
extent Delta has waived its rights in the Aircraft General Terms Agreement
AGTA/(_____) which was incorporated by reference into the applicable purchase
agreement.
B. In regard to Airline Liability Insurance, Insurers have agreed:
(1) To include Boeing as an additional insured in accordance
with Customer's undertaking in Article 8.2.1 of the AGTA/(____) which was
incorporated by reference into the applicable purchase agreement;
(2) To provide that such insurance will be primary and not
contributory or excess with respect to any other insurance available for the
protection of Boeing;
(3) To provide that with respect to the interests of Boeing,
such insurance shall not be invalidated or minimized by any action or inaction,
omission or misrepresentation by the Insured or any other person or party (other
than Boeing) regardless of any breach or violation of any warranty, declaration
or condition contained in such policies; and
(4) To provide that all provisions of the insurance coverages
referenced above, except the limits of liability, will operate to give each
insured or additional insured the same protection as if there were a separate
Policy issued to each.
*This confidential information has been omitted and filed separately with the
Commission.
App. 1
3
AGTA-DAL
91
SAMPLE
INSURANCE CERTIFICATE
C. In regard to all of the above referenced policies:
(1) Boeing will not be responsible for payment, set-off or
assessment of any kind or any premiums in connection with the policies,
endorsements or coverages described herein;
(2) If a policy is canceled for any reason whatsoever, if any
substantial change is made in the coverage which affects the interests of Boeing
or if a policy is allowed to lapse for nonpayment of premium, such cancellation,
change or lapse shall not be effective as to Boeing for thirty (30) days after
receipt by Boeing of written notice from the Insurers, its authorized
representative or Broker of such cancellation, change or lapse; and
(3) For the purposes of the Certificate, "Boeing" is defined
as The Boeing Company, its divisions, subsidiaries, affiliates, the assignees of
each and their respective directors, officers, employees and agents.
SUBJECT TO THE TERMS, CONDITIONS, LIMITATIONS AND EXCLUSIONS OF THE RELATIVE
POLICIES.
(signature)
(typed name)
(title)
App. 1
4
AGTA-DAL
92
SAMPLE
PURCHASE AGREEMENT ASSIGNMENT
THIS PURCHASE AGREEMENT ASSIGNMENT (Assignment) dated as of ________
19__ between Delta Air Lines Inc., a company organized under the laws of
________________ (Assignor) and ________________________, a company organized
under the laws of ________________ (Assignee). Capitalized terms used herein
without definition will have the same meaning as in the Boeing Purchase
Agreement.
Assignor and The Boeing Company, a Delaware corporation (Boeing), are
parties to the Boeing Purchase Agreement, providing, among other things, for the
sale by Boeing to Assignor of certain aircraft, engines and related equipment,
including the Aircraft.
Assignee desires to acquire the Aircraft and certain rights and
interests under the Boeing Purchase Agreement and Assignor on the following
terms and conditions, desires to assign to Assignee certain of Assignor's rights
and interests under the Boeing Purchase Agreement and Assignee desires to accept
such assignment.
Assignor and Assignee agree as follows:
1. In this Assignment, the following terms have the following
meanings:
Aircraft -- one Boeing Model ______ aircraft, bearing manufacturer's
serial number _______, together with all engines and parts installed on such
aircraft on the Delivery Date.
Boeing -- Boeing shall include Boeing Sales Corporation (a wholly-owned
subsidiary of Boeing), a Guam corporation, and its successors and assigns.
Boeing Purchase Agreement -- Purchase Agreement No. ________ dated as
of ____________ between Boeing and Assignor, as amended, but excluding
______________; providing, among other things, for the sale by Boeing to
Assignor of the Aircraft, as said agreement may be further amended to the extent
permitted by its terms. The Purchase Agreement incorporated by reference
Aircraft General Terms Agreement AGTA/____ (AGTA).
Delivery Date -- the date on which the Aircraft is delivered by Boeing
to Assignee pursuant to and subject to the terms and conditions of the Boeing
Purchase Agreement and this Assignment.
2. Assignor does hereby assign to Assignee all of its rights and
interests in and to the Boeing Purchase Agreement, as and to the extent that the
same relate to the Aircraft and the purchase and operation thereof (except as
and to the extent expressly reserved below), including, without limitation: [TO
BE COMPLETED BY THE PARTIES.]
App. 2
1
AGTA-DAL
93
SAMPLE
PURCHASE AGREEMENT ASSIGNMENT
{EXAMPLES
(a) the right upon valid tender to purchase the Aircraft pursuant
to the Boeing Purchase Agreement subject to the terms and
conditions thereof, the right to take title to the Aircraft
and the right to be named the "Buyer" in the bill of sale for
the Aircraft;
(b) the right to accept delivery of the Aircraft;
(c) all claims for damages arising as a result of any default
under the Boeing Purchase Agreement in respect of the
Aircraft;
(d) all warranty and indemnity provisions contained in the Boeing
Purchase Agreement, and all claims arising thereunder, in
respect of the Aircraft; and
(e) any and all rights of Assignor to compel performance of the
terms of the Boeing Purchase Agreement in respect of the
Aircraft.}
However, Assignor exclusively reserves:
{EXAMPLES
(i) all Assignor's rights and interests in and to the Boeing
Purchase Agreement as and to the extent the same relates to
aircraft other than the Aircraft, or to any other matters not
directly pertaining to the Aircraft;
(ii) all Assignor's rights and interests in or arising out of any
advance or other payments or deposits made by Assignor in
respect of the Aircraft under the Boeing Purchase Agreement
and any amounts credited or to be credited or paid or to be
paid by Boeing in respect of the Aircraft;
(iii) the right to obtain services, training, information and
demonstration and test flights pursuant to the Boeing Purchase
Agreement; and
(iv) the right to maintain plant representatives at Boeing's plant
pursuant to the Boeing Purchase Agreement.}
Assignee hereby accepts such assignment.
3. Notwithstanding the foregoing, so long as no event of default or
termination under [specify document] has occurred and is continuing, Assignee
hereby authorizes Assignor, to the exclusion of Assignee, to exercise in
Assignor's name all rights and powers of Customer under the Boeing Purchase
Agreement in respect of the Aircraft.
App. 2
2
AGTA-DAL
94
SAMPLE
PURCHASE AGREEMENT ASSIGNMENT
4. For all purposes of this Assignment, Boeing will not be deemed to
have knowledge of or need to recognize the occurrence, continuance or
discontinuance of any event of default or termination under [specify document]
unless and until Boeing receives from Assignee written notice thereof, addressed
to its Vice President - Contracts, Boeing Commercial Airplane Group at P.O. Box
3707, Seattle, Washington 98124, if by mail, or to 32-9430 Answerback BOEINGREN
RNTN, if by telex. Until such notice has been given, Boeing will be entitled to
deal solely and exclusively with Assignor. Thereafter, until Assignee has
provided Boeing written notice that any such events no longer continue, Boeing
will be entitled to deal solely and exclusively with Assignee. Boeing may
conclusively rely on any such notice.
5. Notwithstanding anything herein contained to the contrary, it is
expressly agreed that: (a) prior to the Delivery Date Assignor will perform its
obligations with respect to the Aircraft to be performed by it on or before such
delivery, (b) Assignor will at all times remain liable to Boeing under the
Boeing Purchase Agreement to perform all obligations of Customer thereunder to
the same extent as if this Assignment had not been executed, and (c) the
exercise by Assignee of any of the assigned rights will not release Assignor
from any of its obligations to Boeing under the Boeing Purchase Agreement,
except to the extent that such exercise constitutes performance of such
obligations.
6. Notwithstanding anything herein to the contrary (but without in any
way releasing Assignor from any of its obligations under the Boeing Purchase
Agreement), Assignee confirms for the benefit of Boeing that, insofar as the
provisions of the Boeing Purchase Agreement relate to the Aircraft, in
exercising any rights under the Boeing Purchase Agreement, or in making any
claim with respect to the Aircraft or other things (including, without
limitation, Material, training and services) delivered or to be delivered
pursuant to the Boeing Purchase Agreement, the terms and conditions of the
Boeing Purchase Agreement, including, without limitation, the DISCLAIMER AND
RELEASE and EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES in Article 12 of Part 2
of Exhibit C to the Aircraft General Terms Agreement which were incorporated by
reference into the Boeing Purchase Agreement and the insurance provisions in
Article 8.2 of the Aircraft General Terms Agreement which were incorporated by
reference into the Boeing Purchase Agreement, will apply to and be binding on
Assignee to the same extent as if Assignee had been the original "Customer"
thereunder. Assignee further agrees, expressly for the benefit of Boeing, upon
written request of Boeing, promptly to execute and deliver such further
assurances and documents and take such further action as Boeing may reasonably
request in order to obtain the full benefits of Assignee's agreements in this
paragraph.
7. Nothing contained herein will subject Boeing to any liability to
which it would not otherwise be subject under the Boeing Purchase Agreement,
modify in any respect the contract rights of Boeing thereunder or require Boeing
to divest itself of title to or possession of the Aircraft or other things until
delivery thereof and payment therefor as provided therein.
App. 2
3
AGTA-DAL
95
SAMPLE
PURCHASE AGREEMENT ASSIGNMENT
8. Notwithstanding anything herein to the contrary, after receipt of
notice of any event of default or termination under [specify document], Boeing
will continue to owe Assignor moneys in payment of claims made or obligations
arising before such notice, which moneys may be subject to rights of set-off
available to Boeing under applicable law. Similarly, after receipt of notice
that such event of default or termination no longer continues, Boeing will
continue to owe Assignee moneys in payment of claims made or obligations arising
before such notice, which moneys may be subject to rights of set-off available
to Boeing under applicable law.
9. Effective at any time after an event of default has occurred, and
for so long as such event of default is continuing, Assignor does hereby
constitute Assignee as Assignor's true and lawful attorney, irrevocably, with
full power (in the name of Assignor or otherwise) to ask, require, demand,
receive and give acquittance for any and all moneys and claims for moneys due
and to become due under or arising out of the Boeing Purchase Agreement in
respect of the Aircraft, to the extent assigned by this Assignment.
10. Assignee agrees expressly for the benefit of Boeing and Assignor
that it will not disclose, directly or indirectly, any terms of the Boeing
Purchase Agreement; provided, that Assignee may disclose any such information
(a) to its special counsel and public accountants, (b) as required by applicable
law to be disclosed or to the extent that Assignee may have received a subpoena
or other written demand under color of legal right for such information, but it
will first, as soon as practicable upon receipt of such requirement or demand,
furnish an explanation of the basis thereof to Boeing, and will afford Boeing
reasonable opportunity to obtain a protective order or other reasonably
satisfactory assurance of confidential treatment for the information required to
be disclosed, and (c) to any bona fide potential purchaser or lessee of the
Aircraft. Any disclosure pursuant to (a) and (c) above will be subject to
execution of a confidentiality agreement substantially similar to this paragraph
10.
11. This Assignment may be executed by the parties 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.
App. 2
4
AGTA-DAL
96
SAMPLE
PURCHASE AGREEMENT ASSIGNMENT
12. This Assignment will be governed by, and construed in accordance
with, the laws of [_________________].
- -------------------------- --------------------------
as Assignor as Assignee
By _______________________ By _______________________
Name: Name:
Title: Title:
[If the Assignment is further assigned by Assignee in connection with a
financing, the following language needs to be included.]
Attest:
The undersigned, as [Indenture Trustee/Agent for the benefit of the Loan
Participants/Mortgagee] and as assignee of, and holder of a security interest
in, the estate, right and interest of the Assignee in and to the foregoing
Purchase Agreement Assignment and the Purchase Agreement pursuant to the terms
of a certain [Trust Indenture/Mortgage] dated as of _____________, agrees to the
terms of the foregoing Purchase Agreement Assignment and agrees that its rights
and remedies under such [Trust Indenture/Mortgage] shall be subject to the terms
and conditions of the foregoing Purchase Agreement Assignment, including,
without limitation, paragraph 6.
[Name of Entity],
as Indenture Trustee/Agent
By:____________________________
Name:
Title:
App. 2
5
AGTA-DAL
97
SAMPLE
PURCHASE AGREEMENT ASSIGNMENT
CONSENT AND AGREEMENT OF
THE BOEING COMPANY
THE BOEING COMPANY, a Delaware corporation (Boeing), hereby
acknowledges notice of and consents to the foregoing Purchase Agreement
Assignment (Assignment). Boeing confirms to Assignee that: all representations,
warranties, indemnities and agreements of Boeing under the Boeing Purchase
Agreement with respect to the Aircraft will, subject to the terms and conditions
thereof and of the Assignment, inure to the benefit of Assignee to the same
extent as if Assignee were originally named "Customer" therein.
This Consent and Agreement will be governed by, and construed in
accordance with, the law of the State of Washington, excluding the conflict of
laws principles thereof.
Dated as of ____________________, 199___.
THE BOEING COMPANY
By ________________________
Name:
Title: Attorney-in-Fact
Aircraft Manufacturer's Serial Number(s) ____________
App. 2
6
AGTA-DAL
98
SAMPLE
POST-DELIVERY SALE NOTICE
Boeing Commercial Airplane Group
P.O. Box 3707
Seattle, Washington 98124-2207
Attention: Vice President - Contracts
Mail Stop 75-38
Ladies and Gentlemen:
In connection with the sale by Delta Air Lines Inc. (Seller) to ________________
(Purchaser) of the aircraft identified below, reference is made to Purchase
Agreement No. _____ dated as of ___________, 19__, between The Boeing Company
(Boeing) and Seller (the Purchase Agreement) under which Seller purchased
certain Boeing Model ________ aircraft, including the aircraft bearing
Manufacturer's Serial No.(s) ______________________ (the Aircraft). The Purchase
Agreement incorporated by reference Aircraft General Terms Agreement AGTA/Delta
Air Lines Inc. (AGTA).
Capitalized terms used herein without definition will have the same meaning as
in the Purchase Agreement.
Seller has sold the Aircraft, including in that sale the transfer to Purchaser
of all remaining rights related to the Aircraft under the Purchase Agreement. To
accomplish this transfer of rights, as authorized by the provisions of the
Purchase Agreement:
(1) Purchaser acknowledges it has reviewed the Purchase Agreement and agrees to
be bound by and comply with all applicable terms and conditions of the Purchase
Agreement, including, without limitation, the DISCLAIMER AND RELEASE and
EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES in Article 12 of Part 2 of Exhibit
C to the AGTA and the insurance provisions in Article 8.2 of the AGTA. Purchaser
further agrees, upon the written request of Boeing, promptly to execute and
deliver such further assurances and documents and take such further action as
Boeing may reasonably request in order to obtain the full benefits of
Purchaser's agreements in this paragraph; and
(2) Seller will remain responsible for any payments due Boeing as a result of
obligations relating to the Aircraft incurred by Seller to Boeing prior to the
effective date of this letter.
App. 3
1
AGTA-DAL
99
SAMPLE
POST-DELIVERY SALE NOTICE
We request that Boeing acknowledge receipt of this letter and confirm the
transfer of rights set forth above by signing the acknowledgment and forwarding
one copy of this letter containing its acknowledgment to each of the
undersigned.
Very truly yours,
Seller Purchaser
By By
------------------------------- --------------------------
Its Its
------------------------------ -------------------------
Dated Dated
------------------------------ -------------------------
Receipt of the above letter is acknowledged and transfer of rights under the
Purchase Agreement with respect to the Aircraft is confirmed, effective as of
this date.
THE BOEING COMPANY
By
-------------------------------
Its
------------------------------
Dated
----------------------------
Aircraft Manufacturer's Serial Number
-------------------
App. 3
2
AGTA-DAL
100
SAMPLE
POST-DELIVERY LEASE NOTICE
Boeing Commercial Airplane Group
P.O. Box 3707
Seattle, Washington 98124-2207
Attention: Vice President - Contracts
Mail Stop 75-38
Ladies and Gentlemen:
In connection with the lease by Delta Air Lines Inc. (Lessor) to ___________
(Lessee) of the aircraft identified below, reference is made to Purchase
Agreement No. ____ dated as of ________, 19__, between The Boeing Company
(Boeing) and Lessor (the Purchase Agreement) under which Lessor purchased
certain Boeing Model _______ aircraft, including the aircraft bearing
Manufacturer's Serial No.(s) ___________________ (the Aircraft). The Purchase
Agreement incorporated by reference Aircraft General Terms Agreement AGTA-DAL
(AGTA).
Capitalized terms used herein without definition will have the same meaning as
in the Purchase Agreement.
Lessor has leased the Aircraft, including in that lease the transfer to Lessee
of all remaining possessory rights related to the Aircraft under the Purchase
Agreement. To accomplish this transfer of possessory rights, as authorized by
the provisions of the Purchase Agreement:
(1) Lessor authorizes Lessee to exercise, to the exclusion of Lessor, all rights
and powers of Lessor with respect to the remaining possessory rights related to
the Aircraft under the Purchase Agreement. This authorization will continue
until Boeing receives written notice from Lessor to the contrary, addressed to
Vice President - Contracts, Mail Stop 75-38, Boeing Commercial Airplane Group,
P.O. Box 3707, Seattle, Washington 98124-2207. Until Boeing receives such
notice, Boeing is entitled to deal exclusively with Lessee with respect to the
Aircraft under the Purchase Agreement. With respect to the rights and
obligations of Lessor under the Purchase Agreement, all actions taken or
agreements entered into by Lessee during the period prior to Boeing's receipt of
this notice are final and binding on Lessor. Further, any payments made by
Boeing as a result of claims made by Lessee will be made to the credit of
Lessee.
(2) Lessee accepts the authorization above, acknowledges it has reviewed the
Purchase Agreement and agrees to be bound by and comply with all applicable
terms and conditions of the Purchase Agreement including, without limitation,
the DISCLAIMER AND RELEASE and EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES in
Article 12 of Part 2 of Exhibit C AGTA and the insurance provisions in Article
8.2 of the AGTA. Lessee further agrees, upon the written request of Boeing,
promptly to
App. 4
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AGTA-DAL
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SAMPLE
POST-DELIVERY LEASE NOTICE
execute and deliver such further assurances and documents and take such further
action as Boeing may reasonably request in order to obtain the full benefits of
Lessee's agreements in this paragraph.
(3) Lessor will remain responsible for any payments due Boeing as a result of
obligations relating to the Aircraft incurred by Lessor to Boeing prior to the
effective date of this Notice.
We request that Boeing acknowledge receipt of this letter and confirm the
transfer of rights set forth above by signing the acknowledgment and forwarding
one copy of this letter containing its acknowledgment to each of the
undersigned.
Very truly yours,
Lessor Lessee
By By
------------------------------- --------------------------
Its Its
------------------------------ -------------------------
Dated Dated
---------------------------- ----------------------
Receipt of the above letter is acknowledged and transfer of rights under the
Purchase Agreement with respect to the Aircraft is confirmed, effective as of
this date.
THE BOEING COMPANY
By
------------------------------
Its
------------------------------
Dated
----------------------------
Aircraft Manufacturer's Serial Number
-------------
App. 4
2
AGTA-DAL
102
SAMPLE
PURCHASER'S/LESSEE'S AGREEMENT
Boeing Commercial Airplane Group
P. O. Box 3707
Seattle, Washington 98124-2207
Attention Vice President - Contracts
Mail Stop 75-38
Ladies and Gentlemen:
In connection with the sale/lease by Delta Air Lines Inc. (Seller/Lessor) to
_______________________ (Purchaser/Lessee) of the aircraft identified below,
reference is made to the following documents:
(i) Purchase Agreement No. _____ dated as of ___________, 19__, between The
Boeing Company (Boeing) and Seller/Lessor (the Purchase Agreement) under which
Seller/Lessor purchased certain Boeing Model ________ aircraft, including the
aircraft bearing Manufacturer's Serial No.(s) ______________________ (the
Aircraft); and
(ii) Aircraft Sale/Lease Agreement dated as of ___________, 19__, between
Seller/Lessor and Purchaser/Lessee (the Aircraft Agreement) under which
Seller/Lessor is selling/leasing the Aircraft.
Capitalized terms used herein without definition will have the same meaning as
in the Aircraft Agreement.
1. Seller/Lessor has sold/leased the Aircraft under the Aircraft Agreement,
including therein a form of exculpatory clause protecting Seller/Lessor from
liability for loss of or damage to the aircraft, and/or related incidental or
consequential damages, including without limitation loss of use, revenue or
profit.
2. Disclaimer and Release; Exclusion of Liabilities
2.1 In accordance with Seller/Lessor's obligation under Article 9.5 of
AGTA-DAL which was incorporated by reference into the Purchase Agreement,
Purchaser/Lessee hereby agrees that:
2.2 DISCLAIMER AND RELEASE. IN CONSIDERATION OF THE SALE/LEASE OF THE
AIRCRAFT, PURCHASER/LESSEE HEREBY WAIVES, RELEASES AND RENOUNCES ALL WARRANTIES,
OBLIGATIONS AND LIABILITIES OF BOEING AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES
OF PURCHASER/LESSEE AGAINST BOEING, EXPRESS OR IMPLIED, ARISING BY LAW OR
OTHERWISE, WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN ANY AIRCRAFT, BOEING
PRODUCT, MATERIALS, TRAINING,
App. 5
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AGTA-DAL
103
SAMPLE
PURCHASER'S/LESSEE'S AGREEMENT
SERVICES OR OTHER THING PROVIDED UNDER THE AIRCRAFT AGREEMENT, INCLUDING, BUT
NOT LIMITED TO:
(A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN
TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF
BOEING; AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR
LOSS OF OR DAMAGE TO ANY AIRCRAFT.
2.3 EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES. BOEING WILL HAVE NO
OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT,
WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF BOEING, OR OTHERWISE, FOR LOSS OF
USE, REVENUE OR PROFIT, OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES
WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN ANY AIRCRAFT, MATERIALS,
TRAINING, SERVICES OR OTHER THING PROVIDED UNDER THE AIRCRAFT AGREEMENT.
2.4 Definitions. For the purpose of this paragraph 2, "BOEING" or
"Boeing" is defined as The Boeing Company, its divisions, subsidiaries,
affiliates, the assignees of each, and their respective directors, officers,
employees and agents.
Seller/Lessor Purchaser/Lessee
By By
------------------------------- -----------------------------
Its Its
------------------------------ -----------------------------
Dated Dated
---------------------------- --------------------------
App. 5
2
AGTA-DAL
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SAMPLE
OWNER APPOINTMENT OF AGENT - WARRANTIES
Boeing Commercial Airplane Group
P.O. Box 3707
Seattle, Washington 98124-2207
Attention: Vice President - Contracts
Mail Stop 75-38
Ladies and Gentlemen:
1. Reference is made to Purchase Agreement No. ____ dated as of __________,
19__, between The Boeing Company (Boeing) and Delta Air Lines Inc. (Customer)
(the Purchase Agreement), under which Customer purchased certain Boeing Model
________ aircraft including the aircraft bearing Manufacturer's Serial No.(s)
_____________ (the Aircraft). The Purchase Agreement incorporated by reference
Aircraft General Terms Agreement AGTA-DAL (AGTA).
Capitalized terms used herein without definition will have the same meaning as
in the Purchase Agreement.
To accomplish the appointment of an agent, Customer confirms:
A. Customer has appointed ____________________ as agent (Agent) to act directly
with Boeing with respect to the remaining warranties under the Purchase
Agreement and requests Boeing to treat Agent as Customer for the administration
of claims with respect to such warranties; provided, however, Customer remains
liable to Boeing to perform the obligations of Customer under the Purchase
Agreement.
B. Boeing may continue to deal exclusively with Agent concerning the matters
described herein unless and until Boeing receives written notice from Customer
to the contrary, addressed to Vice President - Contracts, Mail Stop 75-38,
Boeing Commercial Airplane Group, P.O. Box 3707, Seattle, Washington 98124-2207,
U.S.A. With respect to the rights and obligations of Customer under the Purchase
Agreement, all actions taken by Agent or agreements entered into by Agent during
the period prior to Boeing's receipt of such notice are final and binding on
Customer. Further, any payments made by Boeing as a result of claims made by
Agent will be made to the credit of Agent unless otherwise specified when each
claim is submitted.
C. Customer will remain responsible for any payments due Boeing as a result of
obligations relating to the Aircraft incurred by Customer to Boeing prior to the
effective date of this Notice.
App. 6
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AGTA-DAL
105
SAMPLE
OWNER APPOINTMENT OF AGENT - WARRANTIES
Customer requests that Boeing acknowledge receipt of this letter and confirm the
appointment of Agent as stated above by signing the acknowledgment and
confirmation and forwarding one copy of this letter to Customer and another copy
to Agent.
Very truly yours,
Delta Air Lines Inc.
By
-------------------------------
Its
------------------------------
Dated
----------------------------
App. 6
2
AGTA-DAL
106
SAMPLE
OWNER APPOINTMENT OF AGENT - WARRANTIES
AGENT'S AGREEMENT
Agent accepts the appointment as stated above, acknowledges it has reviewed the
Purchase Agreement and agrees that, in exercising any rights or making any
claims thereunder, Agent will be bound by and comply with all applicable terms
and conditions of the Purchase Agreement including, without limitation, the
DISCLAIMER AND RELEASE and EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES in
Article 12 of Part 2 of Exhibit C to the AGTA. Agent further agrees, upon the
written request of Boeing, promptly to execute and deliver such further
assurances and documents and take such further action as Boeing may reasonably
request in order to obtain the full benefits of the warranties under the
Purchase Agreement.
Very truly yours,
Agent
By
-------------------------------
Its
------------------------------
Dated
----------------------------
Receipt of the above letter is acknowledged and the appointment of Agent with
respect to the above-described rights under the Purchase Agreement is confirmed,
effective as of this date.
THE BOEING COMPANY
By
-------------------------------
Its
------------------------------
Dated
----------------------------
Aircraft Manufacturer's Serial Number
-------------
App. 6
3
AGTA-DAL
107
SAMPLE
CONTRACTOR CONFIDENTIALITY AGREEMENT
Boeing Commercial Airplane Group
P.O. Box 3707
Seattle, Washington 98124-2207
Attention: Vice President - Contracts
Mail Stop 75-38
Ladies and Gentlemen:
This Agreement is entered into between ____________________ (Contractor) and
Delta Air Lines Inc. (Customer) and will be effective as of the date stated
below.
In connection with Customer's provision to Contractor of certain Materials,
Proprietary Materials and Proprietary Information, reference is made to Purchase
Agreement No. _____ dated as of _______ , 19___ between The Boeing Company
(Boeing) and Customer.
Capitalized terms used herein without definition will have the same meaning as
in the Purchase Agreement.
Boeing has agreed to permit Customer to make certain Materials, Proprietary
Materials and Proprietary Information relating to Customer's Boeing Model
________ aircraft, Manufacturer's Serial Number ______, Registration No.
________ (the Aircraft) available to Contractor in connection with Customer's
contract with Contractor (the Contract) to maintain/repair/modify the Aircraft.
As a condition of receiving the Proprietary Materials and Proprietary
Information, Contractor agrees as follows:
1. For purposes of this Agreement:
"AIRCRAFT SOFTWARE" means software that is installed and used in the
operation of an Aircraft.
"MATERIALS" are defined as any and all items created by Boeing or a
Third Party, and provided directly or indirectly from Boeing and serve primarily
to contain, convey or embody information. Materials may include either tangible
embodiments (for example, documents or drawings), or intangible embodiments (for
example, software and other electronic forms) of information but do not include
Aircraft Software.
"PROPRIETARY INFORMATION" means any and all proprietary, confidential
and/or trade secret information owned by Boeing or a Third Party which is
contained, conveyed or embodied in Proprietary Materials.
"PROPRIETARY MATERIALS" means Materials that contain, convey or embody
Proprietary Information.
App. 7
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AGTA-DAL
108
SAMPLE
CONTRACTOR CONFIDENTIALITY AGREEMENT
"THIRD PARTY" means anyone other than Boeing, Customer or Contractor.
2. Boeing has authorized Customer to grant to Contractor a worldwide,
non-exclusive, personal and nontransferable license to use Proprietary Materials
and Proprietary Information owned by Boeing, internally in connection with
performance of the Contract or as may otherwise be authorized by Boeing in
writing. Contractor will keep confidential and protect from disclosure to any
person, entity or government agency, including any person or entity affiliated
with Contractor, all Proprietary Materials and Proprietary Information.
Individual copies of all Materials are provided to Contractor subject to
copyrights therein, and all such copyrights are retained by Boeing or, in some
cases, by Third Parties. Contractor is authorized to make copies of Materials
(except for Materials bearing the copyright legend of a Third Party); provided,
however, Contractor preserves the restrictive legends and proprietary notices on
all copies. All copies of Proprietary Materials will belong to Boeing and be
treated as Proprietary Materials under this Agreement.
3. Contractor specifically agrees not to use Proprietary Materials or
Proprietary Information in connection with the manufacture or sale of any part
or design. Unless otherwise agreed with Boeing in writing, Proprietary Materials
and Proprietary Information may be used by Contractor only for work on the
Aircraft for which such Proprietary Materials have been specified by Boeing.
Customer and Contractor recognize and agree that they are responsible for
ascertaining and ensuring that all Materials are appropriate for the use to
which they are put.
4. Contractor will not attempt to gain access to information by reverse
engineering, decompiling or disassembling any portion of any software provided
to Contractor pursuant to this Agreement.
5. Upon Boeing's request at any time, Contractor will promptly return to Boeing
(or, at Boeing's option, destroy) all Proprietary Materials, together with all
copies thereof and will certify to Boeing that all such Proprietary Materials
and copies have been so returned (or destroyed).
6. To the extent required by a government regulatory agency having jurisdiction
over Contractor, Customer or the Aircraft, Contractor is authorized to provide
Proprietary Materials and disclose Proprietary Information to the agency for the
agency's use in connection with Contractor's authorized use of such Proprietary
Materials and/or Proprietary Information for Contractor's maintenance, repair or
modification of the Aircraft. Contractor agrees to take reasonable steps to
prevent such agency from making any distribution, disclosure or additional use
of the Proprietary Materials and Proprietary Information so provided or
disclosed. Contractor further agrees promptly to notify Boeing upon learning of
any (i) distribution, disclosure or additional use by such agency, (ii) request
to such agency for distribution, disclosure or additional use, or (iii)
intention
App. 7
2
AGTA-DAL
109
SAMPLE
CONTRACTOR CONFIDENTIALITY AGREEMENT
on the part of such agency to distribute, disclose, or make additional use of
the Proprietary Materials or Proprietary Information.
7. Boeing is a third-party beneficiary under this Agreement, and Boeing may
enforce any and all of the provisions of the Agreement directly against
Contractor. Contractor hereby submits to the jurisdiction of the Washington
state courts and the United States District Court for the Western District of
Washington with regard to any claims Boeing may make under this Agreement. It is
agreed that Washington law (excluding Washington's conflict-of-law principles)
governs this Agreement.
8. No disclosure or physical transfer by Boeing or Customer to Contractor of any
Proprietary Materials or Proprietary Information covered by this Agreement will
be construed as granting a license, other than as expressly set forth in this
Agreement, or any ownership right in any patent, patent application, copyright
or proprietary information.
9. The provisions of this Agreement will apply notwithstanding any markings or
legends, or the absence thereof, on any Proprietary Materials.
10. This Agreement is the entire agreement of the parties regarding the
ownership and treatment of Proprietary Materials and Proprietary Information,
and no modification of this Agreement will be effective as against Boeing unless
in writing signed by authorized representatives of Contractor, Customer and
Boeing.
11. Failure by either party to enforce any of the provisions of this Agreement
will not be construed as a waiver of such provisions. If any of the provisions
of this Agreement is held unlawful or otherwise ineffective by a court of
competent jurisdiction, the remainder of this Agreement will remain in full
force.
ACCEPTED AND AGREED TO this
Date: _____________________, 19___
CONTRACTOR CUSTOMER
- ------------------------------ ------------------------------
By: __________________________ By: __________________________
Its: _________________________ Its: _________________________
App. 7
3
AGTA-DAL
110
SAMPLE
Notice of Option Exercise
===============================================================================
DELTA AIR LINES INC. LETTERHEAD
===============================================================================
[ date ]
Notice Of Option Exercise
Mrs./Ms./Mr.
Regional Director - Aircraft Contracts
Boeing Commercial Airplane Group
Seattle, Washington 98124
Fax Number 206-237-1706
Subject: Exercise of Option for Boeing Model XXX-XXX
Reference: Purchase Agreement No. XXXX
In accordance with the terms of XXXXXXXXXXXXX of Purchase Agreement XXXX, Delta
Air Lines hereby notifies Boeing that it exercises its option to purchase XXXX
(Qty) model XXX-XXX Option Aircraft for delivery as follows:
Scheduled Delivery Aircraft Quantity
------------------ -----------------
Delta Air Lines has selected the Advance Payment Schedule as described in XXXXXX
of the AGTA, which was incorporated by reference into the Purchase Agreement,
and, concurrently with this notification has wire transferred $X,XXX,XXX in
advance payments for the Option Aircraft due Boeing.
App. 8
1
AGTA-DAL
111
SAMPLE
Notice of Option Exercise
Within 30 days of Boeing's receipt of Delta Air Line's notification of its
exercise of such option, Boeing will provide to Delta Air Lines a revised Table
1 to Purchase Agreement No. XXXX, revised Performance Guarantees (if
applicable), and an accounting of any refund of any Advance Payments due Delta
Air Lines or additional Advance Payments due Boeing as a result of a change in
the Advance Payment Base Price. If any refund is due to Delta Air Lines, the
refund will be sent by Boeing to Delta Air Lines concurrently with the revised
Table 1. If additional advance payments are due Boeing, Delta Air Lines will
wire transfer such additional advance payments within 5 days of receipt of the
revised Table 1 to Purchase Agreement No. XXXX.
(signature)
(typed name)
(title of Delta Air Lines Officer)
App. 8
2
AGTA-DAL
112
SAMPLE
*This confidential information
has been omitted and filed
separately with the Commission.
App. 9
1
AGTA-DAL
113
SAMPLE
*This confidential information
has been omitted and filed
separately with the Commission.
App. 9
2
AGTA-DAL