Exhibit 10.2
Portions of this exhibit have been omitted pursuant to a request for
confidential treatment. The omitted text has been marked with a triple asterisk
(`***') and has been filed separately with the Securities and Exchange
Commission.
Amendment No. 6
TO THE A330/A340 PURCHASE AGREEMENT
dated as of November 24, 1998
between
AVSA, S.A.R.L.,
and
US AIRWAYS GROUP, INC.
This Amendment No. 6 (hereinafter referred to as the "Amendment") entered into
as of March 29, 2003, by and between AVSA, S.A.R.L., a societe a responsabilite
limitee organized and existing under the laws of the Republic of France, having
its registered office located at 0, Xxxx Xxxxx Xxxxxxx Xxxxxxxx, 00000 Xxxxxxx,
XXXXXX (hereinafter referred to as the "Seller"), and US Airways Group, Inc., a
corporation organized and existing under the laws of the State of Delaware,
United States of America, having its executive offices located at 0000 Xxxxxxx
Xxxxx, Xxxxxxxxx, XX 00000, X.X.X. (hereinafter referred to as the "Buyer");
WITNESSETH:
WHEREAS, the Buyer and the Seller entered into an Airbus A330/A340 Purchase
Agreement, dated as of November 24, 1998, relating to the sale by the Seller and
the purchase by the Buyer of certain Airbus A330 and A340 model aircraft (the
"Aircraft"), which agreement, together with all Exhibits, Appendices and Letter
Agreements attached thereto and as amended by Amendment No.1 dated as of March
23, 2000, Amendment No. 2 dated as of June 29, 2000, Amendment No. 3 dated as of
November 27, 2000, Amendment No. 4 dated as of September 20, 2001, Amendment No.
5 dated as of July 17, 2002 and as the same is hereby amended, is hereinafter
called the "Agreement".
WHEREAS, the Buyer agrees to purchase and the Seller agrees to sell
nine (9) A330-200 aircraft and the Buyer and the Seller agree to amend
certain provisions of the Agreement.
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NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
Capitalized terms used herein and not otherwise defined in this
Amendment will have the meanings assigned to them in the Agreement. The
terms "herein," "hereof," and hereunder and words of similar import
refer to this Amendment.
1. DEFINITIONS
The definition of A330-200 Aircraft is deleted and replaced with the
following:
QUOTE
A330-200 Aircraft - any or all of the Firm A330-200 Aircraft,
Reconfirmable A330-200 Aircraft, Additional Aircraft that the Buyer
selects as A330-200 aircraft, Aircraft that the Buyer converts into
A330-200 aircraft and Additional A330-200 Aircraft to be purchased by
the Seller and sold to the Buyer pursuant to this Agreement, together
with all components, equipment, parts and accessories installed in or
on such aircraft and the Propulsion Systems installed thereon upon
delivery.
UNQUOTE
2. SALE AND PURCHASE
The Seller will hereby cause to be manufactured and will sell and
deliver and the Buyer will hereby buy and take delivery of nine (9)
A330-200 Aircraft in addition to the Aircraft on order as of the date
of Amendment No. 5 of the Agreement (the "Additional A330-200
Aircraft"). The Additional A330-200 Aircraft will be subject to the
same terms and conditions as Firm A330-200 Aircraft.
3. TERMINATION
The provisions of Clause 21.1.1 (6) are hereby deleted and replaced
with the following:
QUOTE
(6) The Buyer is in default of its obligation to make any Predelivery
Payment of this Agreement *** following the Seller's written
notice to the Buyer to cure such default.
UNQUOTE
4. CONVERSION
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Pursuant to Subparagraph 1.1 of Letter Agreement No. 4 of the
Agreement, the Buyer exercises its right to convert the firm order for
one (1) A330-300 Aircraft into one (1) A330-200 Aircraft, identified as
Aircraft No. 10 in the schedule set forth in below in Paragraph 5.
5. DELIVERY
5.1 As a result of the firm order described in Paragraph 2 and the
conversion described in Paragraph 4, the delivery schedule set forth in
Subclause 9.1.1 of the Agreement as amended from time to time is hereby
deleted and replaced with the following:
QUOTE
***
6. PAYMENTS
The Buyer and the Seller agree that ***.
7. EFFECT OF AMENDMENT
The provisions of this Amendment are binding on both parties upon
execution hereof. The Agreement will be deemed to be amended to the
extent herein provided, and, except as specifically amended hereby,
will continue in full force and effect in accordance with its original
terms. This Amendment supersedes any previous understandings,
commitments, or representations whatsoever, whether oral or written,
related to the subject matter of this Amendment.
Both parties agree that this Amendment will constitute an integral,
nonseverable part of said Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this
Amendment will be governed by the provisions of said Agreement, except
that if the Agreement and this Amendment have specific provisions that
are inconsistent, the specific provisions contained in this Amendment
will govern.
8. ASSIGNMENT
This Amendment and the rights and obligations of the Buyer hereunder
will not be assigned or transferred in any manner without the prior
written consent of the Seller, and any attempted assignment or transfer
in contravention of the provisions of this Paragraph 8 will be void and
of no force or effect. Notwithstanding the preceding sentence, the
terms of Subclause 19.3 and 19.4 of the Agreement will apply to this
Amendment only to the extent this Amendment addresses matters that may
be assigned in such Subclauses, and the terms of Subclause 19.5 and
19.6 of the Agreement will apply to this entire Amendment.
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9. GOVERNING LAW
THIS AMENDMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. THE PERFORMANCE OF THIS AMENDMENT WILL
BE DETERMINED ALSO IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
THE PARTIES HEREBY ALSO AGREE THAT THE UNITED NATIONS CONVENTION ON THE
INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS TRANSACTION.
10. COURT APPROVAL
The parties acknowledge and agree that the effectiveness of this
Amendment, including, for the avoidance of doubt, any letter agreements
hereto, is subject to and expressly conditioned upon assumption of the
A330/A340 Purchase Agreement as amended pursuant to the First Amended
Joint Plan of Reorganization of US Airways Group, Inc. and its
Affiliated Debtors and Debtors-in-Possession, as modified (the "Plan"),
which Plan was confirmed by the United States Bankruptcy Court for the
Eastern District of Virginia (the "Court") in the pending bankruptcy
proceedings of US Airways Group, Inc. et al, as debtors (Case No.
02-83984-SSM) on March 18, 2003, which assumption shall occur as of the
Effective Date of the Plan.
11. COUNTERPARTS
This Amendment may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered will be an
original, but all such counterparts will together constitute but one
and the same instrument.
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If the foregoing correctly sets forth our understanding, please execute
this Amendment in the space provided below, whereupon, as of the date
first above written, this Amendment will constitute part of the
Agreement.
Agreed and accepted Yours sincerely,
US AIRWAYS GROUP, INC. AVSA, S.A.R.L.
By: /s/ Xxxxxxx X. XxXxxxxx By: /s/ Xxxxx-Xxxxxx Xxxxx-Xxxxx
Its: Vice President-Finance Its: Chief Executive Officer
and Treasurer
5/5
Portions of this exhibit have been omitted pursuant to a request for
confidential treatment. The omitted text has been marked with a triple asterisk
(`***') and has been filed separately with the Securities and Exchange
Commission.
LETTER AGREEMENT NO. 1
To Amendment No. 6 dated March 29, 2003
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Re: Miscellaneous
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the "Seller"), have
entered into Amendment No. 6, dated as of even date herewith (the "Amendment"),
to the Airbus A330/A340 Purchase Agreement dated as of November 24, 1998 as
amended from time to time (the "Agreement"), which Agreement covers among other
things, the sale by the Seller and the purchase by the Buyer of certain
Aircraft, under the terms and conditions set forth in said Agreement. The Buyer
and the Seller have agreed to set forth in this Letter Agreement No. 1 to the
Amendment (the "Letter Agreement") certain additional terms and conditions
regarding the purchase and sale of the Aircraft. Capitalized terms used herein
and not otherwise defined in this Letter Agreement will have the meanings
assigned thereto in the Agreement. The terms "herein," "hereof" and "hereunder"
and words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will constitute an integral,
nonseverable part of said Amendment, that the provisions of said Amendment are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said Agreement, except that if the Agreement, the
Amendment and this Letter Agreement have specific provisions which are
inconsistent, the specific provisions contained in this Letter Agreement will
govern.
1. CONVERSION RIGHTS
1
In addition to the conversion rights described in Letter Agreement No.
4 to the Agreement, subject to the Manufacturer developing and
launching the industrial program for the A330-500 aircraft, the Buyer
may convert its order for any A330-200 Aircraft into an A330-500
aircraft. The Buyer may convert any such A330-200 Aircraft into
A330-500 aircraft by notifying the Seller at least *** before the
scheduled delivery month of the A330-200 Aircraft so converted. The
Seller and Buyer hereby agree that the Buyer's Conversion Right
pursuant to Paragraph 1 of Letter Agreement 4 to the Agreement is
applicable to each of the ten (10) A330-200 Aircraft on firm order as
of the date hereof, except that none of such Aircraft may be converted
to A340-200 Aircraft.
2. PAYMENTS
In consideration of Seller's agreement to enter into this Amendment, in
lieu of the Predelivery Payment schedule pursuant to Clauses 6.2.2.1 or
6.2.2.2 of the Agreement, the Buyer will pay to the Seller all the
amounts set forth in Exhibit A to this Letter Agreement, each of which
such amounts is deemed a Predelivery Payment payable by the Buyer to
the Seller. ***
3. ADDITIONAL AIRCRAFT
The Buyer and the Seller agree to reduce by ten (10) the number of
Additional Aircraft pursuant to the Agreement, leaving a balance of ten
(10) Additional Aircraft. The Buyer and the Seller have no further
rights and obligations with respect to such reduced ten (10) Additional
Aircraft which are hereby cancelled.
4. TRAINING
The Buyer and the Seller agree that the flight crew transition training
pursuant to Subclause 16.3.1.1 of the Agreement in respect of the
remaining Aircraft on firm order as of the date hereof ***.
5. ***
5.1 ***
5.2 The Buyer may at any time request from the Seller, and the Seller will
provide to the Buyer as soon as possible, confirmation of the then
prevailing Airbus catalogue price of any standard airframe which is the
subject of this Agreement.
6. ***
***
2
7. ***
8. ***
9. ASSIGNMENT
This Letter Agreement and the rights and obligations of the Buyer
hereunder will not be assigned or transferred in any manner without the
prior written consent of the Seller, and any attempted assignment or
transfer in contravention of the provisions of this Paragraph 8 will be
void and of no force or effect. Notwithstanding the preceding sentence,
the terms of Subclauses 19.3 and 19.4 of the Agreement will apply to
this Letter Agreement only to the extent this Letter Agreement
addresses matters that may be assigned in such Subclauses, and the
terms of Subclauses 19.5 and 19.6 of the Agreement will apply to this
entire Letter Agreement.
10. COUNTERPARTS
This Letter Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered will be an
original, but all such counterparts will together constitute but one
and the same instrument.
3
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and
return a copy to the Seller.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Xxxxx-Xxxxxx Xxxxx-Xxxxx
Its: Chief Executive Officer
Date: March 29, 2003
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxxx X. XxXxxxxx
Its: Vice President-Finance and Treasurer
Date: March 29, 2003
Exhibit A to Letter Agreement No. 1
To Amendment No. 6 dated March 29, 2003
4
Portions of this exhibit have been omitted pursuant to a request for
confidential treatment. The omitted text has been marked with a triple asterisk
(`***') and has been filed separately with the Securities and Exchange
Commission.
LETTER AGREEMENT NO. 2
To Amendment No. 6 dated March 29, 2003
US Airways Group, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Re: ***
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the "Seller"), have
entered into Amendment No. 6, dated as of even date herewith (the "Amendment"),
to the Airbus A330/A340 Purchase Agreement dated as of November 24, 1998 as
amended from time to time (the "Agreement"), which Agreement covers among other
things, the sale by the Seller and the purchase by the Buyer of certain
Aircraft, under the terms and conditions set forth in the said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No. 2 to
the Amendment (the "Letter Agreement") certain additional terms and conditions
regarding the purchase and sale of the Aircraft. Capitalized terms used herein
and not otherwise defined in this Letter Agreement will have the meanings
assigned thereto in the Agreement. The terms "herein," "hereof" and "hereunder"
and words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will constitute an integral,
nonseverable part of said Amendment, that the provisions of said Amendment are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said Agreement, except that if the Agreement, the
Amendment and this Letter Agreement have specific provisions which are
inconsistent, the specific provisions contained in this Letter Agreement will
govern.
1. ***
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1.1 ***
1.2 ***
1.3 ***
2. ***
***
3. ASSIGNMENT
This Letter Agreement and the rights and obligations of the Buyer
hereunder will not be assigned or transferred in any manner without the
prior written consent of the Seller, and any attempted assignment or
transfer in contravention of the provisions of this Paragraph 3 will be
void and of no force or effect. Notwithstanding the preceding sentence,
the terms of Subclauses 19.3 and 19.4 of the Agreement will apply to
this Letter Agreement only to the extent this Letter Agreement
addresses matters that may be assigned in such Subclauses, and the
terms of Subclauses 19.5 and 19.6 of the Agreement will apply to this
entire Letter Agreement.
4. COUNTERPARTS
This Letter Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered will be an
original, but all such counterparts will together constitute but one
and the same instrument.
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If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and
return a copy to the Seller.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Xxxxx-Xxxxxx Xxxxx-Xxxxx
Its: Chief Executive Officer
Date: March 29, 2003
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Xxxxxxx X. XxXxxxxx
Its: Vice President-Finance and Treasurer
Date: March 29, 2003
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